Friday, December 31, 2010
The Illinois Review Board has recommended the disbarment of an attorney charged with conversion of client funds. The board summarized the allegations and the attorney's defense:
The Respondent maintained a client trust account at Cole Taylor Bank in which he deposited funds that he received on behalf of clients and third parties. The Administrator submitted bank statements showing that on numerous occasions between September 24, 2004, and February 29, 2008, the client trust account was overdrawn or did not contain all of the funds that the Respondent was required to hold or disburse. During this time period, the Respondent withdrew from the client trust account approximately $138,000 belonging to 37 different clients and/or their creditors.
The Respondent admitted that he sometimes wrote checks to himself and his law office from his client trust account to pay his own business or personal expenses. The Respondent testified that prior to 2009 he was not aware that it was an ethical violation for the balance of his client trust account to fall below the amount he owed to clients and third parties. He believed that he was permitted to write a check from the client trust account to his law firm as long as the clients and third parties were paid. He occasionally deposited his own funds into the client trust account to "clear up the negative balance from overdrafts." The Respondent admitted that he did not pay much attention to his bank statements and attributed his lack of diligence to the difficulties in his personal life.
As to sanction:
The supreme court has stated that "[t]he disbarment of a lawyer is a melancholy business but it is in certain instances necessary for the public good." In re Broverman, 40 Ill.2d 302, 307-308, 239 N.E.2d 816 (1968). This is one of those instances. Based on the Respondent’s lengthy pattern of conversion and deception of both his clients and the Administrator, we are convinced that a recommendation of disbarment is necessary in this matter to protect the public and to maintain the integrity of the legal profession.
A longtime family court judge and acting Supreme Court justice for Albany County has been censured by the New York Commission on Judicial Conduct.
The judge drove after drinking at a private club. When he came upon a sobriety checkpoint, he turned his car around (an illegal u-turn) and drove for about a half a mile before being stopped by pursuing police officers. He used mouthwash to conceal the odor of alcohol, identified himself as a family court judge and repeatedly asked for "professional courtesy." He tried to contact the prosecuting DA by phone but was unable to reach him. He later was convicted of alcohol-related driving charges.
A dissent would remove him from the bench.
The judge was driving with the vanity plates FCJ, meaning family court judge. (Mike Frisch)
The New York Appellate Division for the Fourth Judicial Department has disbarred an attorney convicted of federal criminal offenses. The Department of Justice web page reports the details of the offense:
After a two-week trial on Oct. 28, 2009, a jury found brothers, Paul and Steven Mancuso guilty of conspiring to defraud the United States, violating the Clean Air Act’s asbestos-related regulations, illegally dumping asbestos in Poland, N.Y, and committing mail fraud. Lester Mancuso pleaded guilty the day before the trial started. Ronald Mancuso, who cooperated with the investigation and prosecution, is scheduled to be sentenced on June 16, 2010.
Paul Mancuso was convicted of similar crimes in federal court in 2003 and in New York state court in 2004. As a consequence of the latter conviction, Paul Mancuso was expressly forbidden from affiliating himself with the asbestos-removal industry.
Steven Mancuso subsequently allowed his brother to operate asbestos businesses out of his law office and assisted Paul Mancuso in the operation of these asbestos companies. Specifically, Steven Mancuso and the other co-conspirators produced false and fraudulent documents and then submitted them to clients and regulating agencies to fraudulently conceal their non-compliance with federal and state regulations; submitted false partnership agreements, invoices and other records including, but not limited to, certified payroll records, to clients requesting payment for work that was not performed in compliance with law; and made false statements to clients, regulators, and law enforcement personnel to conceal their illegal activities and defraud the United States.
On some of these asbestos-projects, asbestos was removed in violation of EPA and OSHA regulations and was then illegally dumped on unwitting landowners’ properties in Poland, N.Y.
The court concluded that disbarment was the appropriate sanction for an attorney who uses a law license to commit a crime. (Mike Frisch)
The web page of the Massachusetts Board of Bar Overseers reports a recent public reprimand stemming from charges of assault and battery:
The victim was the respondent’s wife. The respondent had filed for divorce, but he and the wife continued to live in the marital home. An argument ensued when the wife could not find some pottery. While arguing with the respondent, the wife was speaking to a friend on her phone. The respondent slapped at the phone and slapped his wife on the arm. The [criminal charges were] continued without a finding for one year.
An attorney admitted in 1961 and disbarred in 1981has been reinstated by the New York Appellate Division for the Second Judicial Department. The court tells the story in following paragraph:
Motion by the respondent...for reinstatement as an attorney and counselor-at-law. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 29, 1961. By opinion and order of this Court dated April 20, 1981, the respondent was disbarred from the practice of law. By decision and order on motion of this Court dated June 14, 1991, the respondent's motion for reinstatement was denied. By decision and order on motion of this Court dated October 28, 1991, the respondent's motion for reargument of his prior motion for reinstatement or for leave to appeal to the Court of Appeals from the order dated April 20, 1981, was denied. The respondent's second, third, fourth, and fifth motions for reinstatement were denied by orders of this Court dated October 11, 1994, February 13, 1997, April 20, 1999, and January 8, 2004, respectively. By decision and order on motion of this Court dated March 26, 2010, the respondent's motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on his fitness to practice law.
The court concluded that present fitness was established after the committee report was received. (Mike Frisch)
Thursday, December 30, 2010
Posted by Jeff Lipshaw
The "Small Business" section of the New York Times has an article this morning about models small and entrepreneurial businesses are using to hire law firms, and strategies the firms are using to serve them. I'm not sure there's anything really new in here, but it does bring up a point that legal educators and young lawyers need to appreciate, particularly for those law grads who aren't headed to the traditional big law associate posting. Lawyers to small businesses are often the first and only outside adviser the firm has ever had. Listen to some of these snippets: "Make sure the attorneys understand your business - who your customers are, what your biggest areas of risk are, and so on." "One issue is a traditional distrust of lawyers shared by many entrepreneurs: 'They see the lawyer as saying no to daring business moves." "I needed access to a trusted source and only to pay for it when I use it, like weekends and so forth. I use my attorney also to brainstorm ideas."
This is consistent with my view that business lawyers (or at least effective or successful one) can't simply give clients the law and expect them to make the integrated business/legal decision. For more on this from a theoretical standpoint (with practical examples), see The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 46 Seton Hall L. Rev. 1 (2011).
In a 35 page order, charges of misconduct against five partners of a prominent Maine law firm have been dismissed by a single justice of the Supreme Judicial Court. The charges had alleged that the partners had failed to timely investigate and report a now-disbarred partner in the face of his secretary's report of misconduct.
The court noted a number of undisputed facts, including:
At all times material to this case, John Duncan was a partner at Verrill Dana.
He was widely respected throughout the firm as an individual of unquestioned—at
the time—honesty and integrity and one who often assumed firm-wide
responsibilities, serving as a “bridge” between various groups in the firm because
of his personal style and firm-wide respect. Duncan also was involved in a number
of activities in the greater Portland community and was widely respected in those
community activities. Duncan had joined Verrill Dana out of law school in 1978
and, until the revelations that gave rise to this case, was viewed in the firm and the
community at large as a person above reproach.
The court found that the charges had not been proven in that the misconduct appeared to be an isolated incident. An immediate report to the Bar might have exposed the firm to a civil action. The partners also had a reasonable belief that a report might trigger a suicide.
The single justice of the Maine Supreme Judicial Court concluded:
The respondents observed Duncan’s misconduct, and applying the trust built up over thirty years and the mutual commitment of partnership, invited him to remain with the firm. They delayed
further investigation and report of his actions based on humane consideration of a fellow partner’s difficult emotional situation. When the true extent of Duncan’s misconduct was revealed, they promptly reported it and proceeded to make betrayed clients whole. With the clarity of hindsight, the respondents were perhaps too trusting when they had good reason to trust, but they committed no violations of the Code of Professional Responsibility.
This case had been tried over multiple days in early December. (Mike Frisch)
The Nebraska Supreme Court reversed the dismissal of a legal malpractice action that had been orderd because the plaintiff had invoked the Fifth Amendment during discovery. Rather than impose automatic dismissal in such circumstances, the trial court must balance the interests of the parties and consider less drastic remedies. (Mike Frisch)
Wednesday, December 29, 2010
The Minnesota Supreme Court has disbarred an attorney admitted in 1991. The attorney had a substantial record of prior discipline. The court summarized its holding:
Disbarment is the appropriate discipline when a lawyer misappropriates client funds and makes false statements to that client to conceal the misappropriation; makes false statements to the Director of the Office of Lawyers Professional Responsibility and coerces false testimony from the client in the subsequent disciplinary investigation; fails to cooperate with the investigation; fails to file employer withholding tax returns on time and pay those taxes on time; charges a client an unreasonable fee and fails to timely comply with a binding fee arbitration award; and dismisses a client’s case without permission, charges an unreasonable fee, and fails to communicate with the client.
The web page of the Massachusetts Board of Bar Overseers reports a recent public reprimand:
On January 1, 2008, the respondent joined a Boston law firm. Up to that time, the respondent was a sole practitioner concentrating in bankruptcy law. The respondent and the firm agreed that the firm would pay the respondent a salary, plus commissions on fees from clients he brought to the firm. There was, however, no written agreement between the parties and no clear understanding of how fees paid by pre-existing clients of the respondent on ongoing matters would be allocated.
While employed by the firm in 2008, the respondent filed numerous bankruptcy petitions on behalf of clients. On five bankruptcy petitions, in a section of the petition labeled “statement of financial affairs”, the respondent knowingly falsified the date on which he had collected fees from the client. The respondent falsified the dates on the bankruptcy petitions to make it appear that he had collected the fees prior to joining the firm, when in fact he had collected those fees while employed at the firm. The respondent concealed from the firm that he had received fees from those clients after January 1, 2008. The respondent falsified the dates and concealed his receipt of fees from the clients in 2008 to avoid a claim by the firm that it was entitled to retain those fees.
By knowingly falsifying on bankruptcy petitions filed with the bankruptcy court, the dates on which the respondent had received fees, and concealing his receipt of the fees in 2008 from the firm, the respondent violated Mass. R. Prof. C. 8.4(c) (lawyer shall not engage in conduct involving dishonesty, deceit, fraud or misrepresentation) and 8.4(h) (lawyer shall not engage in conduct that adversely reflects on his or her fitness to practice law).
In mitigation, the respondent agreed to participate in any fee arbitration, mediation or other form of fee resolution that is initiated by the firm, and to promptly pay any amount that such arbitrator, mediator or other neutral finds that he owes to the firm.
The Minnesota Supreme Court has amended its Rules of Professional Conduct to allow, with certain notice requirements, an attorney to treat a flat fee as an attorney's property on receipt. The new language to Rules 1.5 (fees) and 1.15 (safekeeping property) is underlined in the linked order. (Mike Frisch)
Tuesday, December 28, 2010
The Connecticut Supreme Court Court affirmed a second order of disbarment against an attorney which requires the attorney to wait five years from the judgment before seeking reinstatement. The case involved a letter written by the attorney in December 1995 that accused three Superior Court judges of misconduct.
A presentment of the charges was filed in December 2003. The attorney's motion to dismiss was granted in light of the November 2001 disbarment for unrelated misconduct. The dismissal was reversed by the Appellate Division, with a dissent.
The court rejected an array of claims including a contention that the charges exposed the attorney to double jeopardy. The court further rejected claims that the contentions in the letter at issue were true, submitted in good faith and protected free speech:
In the present case, the trial court determined that ‘‘the defendant failed to present any credible testimony to substantiate the allegations containedin the letter.’’ We conclude that the trial court’s conclusion is supported by the record. A review ofthe record in this case indicates that no evidence was proffered to prove that the defendant had an objective basis for her statements. The only evidence the defendant presented was her personal opinion as it related to a series of various court experiences. Accordingly, we conclude that the trial court’s finding that the defendant’s comments were either false, or made with reckless disregard to their truth or falseness, was not clearly erroneous.
As I read the decision (and I may be wrong), it appears that the effect of this decision is to extend the eligibility date for a reinstatement petition. (Mike Frisch)
The Indiana Supreme Court imposed a 30 day suspension with automatic reinstatement for misconduct in a domestic relations matter. The court found that the attorney had engaged in an improper ex parte communication with a judicial officer.
The attorney was retained by the wife. The issue related to the husband's efforts to obtain entry to property that had been sold at a tax sale to remove personal items. The attorney also had altered a document and, as a result, exposed the husband to possible arrest.
Justice Sullivan dissented and would impose a suspension of 90 days. (Mike Frisch)
Monday, December 27, 2010
The Arizona Supreme Court affirmed findings of failure to supervise against the managing partner of a high volume "consumer law firm" but reduced the proposed sanction from six months and a day to six months. As a result, the attorney is automatically reinstated after the period of suspension. The court imposed detailed probationary conditions when the attorney resumes practice.
The firm employed 250 people including 38 attorneys. The practice areas were criminal defense, bankruptcy and personal injury matters. The disciplined attorney did not represent clients but rather was responsible for firm management. One of the issues was severe case overload. Attorneys in the bankruptcy division carried 500 cases. One testified that her assigned caseload was 540 when she started with the firm. The attorney had a record of prior discipline for similar misconduct.
The court held that the Hearing Officer applied the appropriate standard and did not impose vicarious liability for the acts of subordinate attorneys. The attorney is precluded from sharing in profits or holding himself out as an attorney during the period of suspension.
A concurring and dissenting opinion would impose the six months and a day recommended by the Disciplinary Commission. (Mike Frisch)
Sunday, December 26, 2010
The Massachusetts Supreme Judicial Court has accepted the consent to disbarment of a former state Senator who had pleaded guilty to eight counts of attempted extortion. The web page of the Board of Bar Overseers has a summary of the disciplinary matter.
Friday, December 24, 2010
From the web page of the Rhode Island Supreme Court:
NAIAD Inflatables of Newport, Inc. (NAIAD), engaged the law firm of Duffy & Sweeney, Ltd. (D&S) to defend it in a civil lawsuit brought in 2005 by the plaintiff, Stafford J. King, III. Soon, however, NAIAD became delinquent in its financial obligations to D&S. Concerned with both a large receivable and a looming trial date, D&S filed a motion to withdraw from the case. This motion was unopposed by the client or by opposing counsel. A justice of the Superior Court denied the firm’s motion. On the grounds of abuse of discretion by the hearing justice, the law firm timely appealed.
D&S filed a motion to withdraw based upon NAIAD’s failure to fulfill its financial obligations under the engagement agreement. Supported by an affidavit of counsel, the motion was properly certified and forwarded to all parties of interest in compliance with the Rules of Civil Procedure. Providing its client with ample notice, D&S made numerous requests for payments, sent reminder invoices, and warned NAIAD that D&S—based on a signed engagement agreement between the parties—would seek to withdraw as counsel if the client failed to bring the balance current. Further, D&S informed NAIAD that it would have the right to object before the Superior Court in the event that such a motion was filed. Denying the unopposed motion, the hearing justice cited Article V, Rule 1.16 of the Supreme Court Rules of Professional Conduct, and ruled that granting the motion would have a “materially adverse effect” on the interests of the clients.
In reversing the Superior Court’s denial of counsel’s motion to withdraw, the Supreme Court said that the hearing justice did not accord adequate weight to the hardship and substantial financial burden that would befall D&S if the law firm were required to continue in its representation of a nonpaying client. Moreover, the Court was of the opinion that the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client.
The opinion is linked here. (Mike Frisch)
The Wisconsin Supreme Court has accepted a referee's recommendation for sanction, concluding that a public reprimand was "barely adequate for the egregious conflict of interest" where an attorney had represented a criminal defendant after interviewing the victim as a potential client.
The attorney had received highly confidential information from a victim of sexual abuse of the part of a nun. The nun had been the victim's teacher, school principal and a family friend. The family consulted with the attorney about a possible civil suit, which the attorney declined to undertake because of statute of limitations problems.
The attorney thereafter represented the nun in ensuing criminal charges:
The referee made a number of factual findings, ultimately finding that [the] Attorney...did represent G.K. [the victim] and concluding there was a clear conflict of interest with respect to Attorney...'s representation of [the nun]. These findings included the fact that Attorney...knew that G.K. ——identified as a victim by [the nun] and in the criminal complaint——was the same individual Attorney...met with to discuss a possible civil case against [her]. Attorney...had received G.K.'s therapy records both when initially investigating the matter and then later as part of the discovery materials obtained from the district attorney in the...criminal matter. The police reports detailing the...abuse investigation also indicated that G.K. referred to Attorney...as his attorney.
Attorney...testified that he reviewed the supreme court rules regarding conflicts of interest and determined there was no conflict. He did not consider it necessary to obtain written permission from G.K. to represent [the nun]. The referee observed that Attorney...believed he met with G.K. out of professional courtesy and that was it. He did, however, acknowledge that he considered retaining another attorney if it became necessary to cross-examine G.K. in the...criminal proceeding.
The court also imposed continuing legal education requirements.
Details about the criminal case from JSO.Online may be found here. (Mike Frisch)
Wednesday, December 22, 2010
The Indiana Supreme Court has suspended an attorney for 30 days without automatic reinstatement for violating the rule prohibiting manifestation of bias or prejudice based upon race.
The attorney was an officer of a title company and gave the company legal advice. He sent an e-mail response to a meeting request to the secretary of an agent who represented the seller in a title dispute:
I know you must do your bosses [sic] bidding at his direction, but I am here to tell you that I am neither you [sic] or his [n-word]. You do not tell me what to do do. You ask. If you ever act like that again, it will be the last time I give any additional thought to your existence and your boss will have to talk to me. Do we understand each other?
The hearing officer found that the use of the word was "a derogatory racist insult, that Respondent's use of the term was not simply a historical reference to slavery but rather manifested racial bias, that he was acting in a professional capacity when he sent the email, and that his use of the term was not connected to legitimate advocacy."
The court noted that the attorney denied committing misconduct, offered no apology or remorse, and had a record of prior discipline. One justice would impose a less severe sanction. (Mike Frisch)
The Tennessee Court of the Judiciary has issued a letter of public reprimand to a general sessions court judge for permitting an attorney who rented office space from him to appear as counsel in a matter before him. He also had "used an expletive wholly improper for a courtroom setting." The judge had admitted the facts, expressed immediate remorse and accepted responsibility for his actions.
The expletive at issue is not recounted in the decision. (Mike Frisch)
From the Ohio Supreme Court web page:
The Supreme Court of Ohio ruled today that Gardner Pratt of Loveland engaged in the unauthorized practice of law by holding himself out as an attorney at law, performing legal services and collecting fees from six different “clients” over a two-year period despite the fact that he is not and never has been admitted to the practice of law in Ohio.
In a 7-0 per curiam decision, the Court issued an order barring Pratt from engaging in any future conduct that constitutes the unauthorized practice of law, and imposed a $60,000 civil penalty for the illegal actions addressed in today’s decision.
The Court adopted findings by the Board on the Unauthorized Practice of Law that between March 2006 and November 2007 Pratt collected more than $70,000 in fees from one individual who hired him to perform legal services for several businesses after Pratt represented himself as an attorney licensed to practice in Ohio and Florida. When Pratt abruptly stopped responding to the client’s phone calls and failed to initially return case files and documents in his possession, the client discovered that Pratt was not licensed as an attorney and obtained a court judgment ordering Pratt to refund $70,073.97 in fees he had collected from the client for “legal services.” Pratt has not paid any part of that judgment.
The Court agreed with the board’s conclusions that, by providing services to the judgment creditor and five other clients who believed they were retaining a licensed attorney, Pratt engaged in the unauthorized practice of law by giving legal advice and counsel to others, preparing contracts and other documents affecting other persons’ legal rights and obligations, representing the legal interests of others in settlement negotiations and collecting fees from others for services that may lawfully be provided only by an attorney.
In imposing a substantial civil penalty on Pratt, the Court noted that the purpose of the state laws and rules that prohibit the unauthorized practice of law is to protect the public against incompetence, conflicts of interest and other negative consequences of unskilled representation. The Court also noted that enforcement of licensing regulations is essential to ensure that individuals and businesses who need legal advice and services to protect their vital financial and personal interests will obtain those services from licensed professionals who have met the education and training requirements and character and fitness standards established by the Supreme Court, and who have demonstrated their practical knowledge of the law and legal procedures by passing the state bar examination.
The opinion is linked here. (MIke Frisch)