January 8, 2010
Stealing From The Pros
The Louisiana Hearing Committee has accepted a concession by an attorney accused of misconduct and recommended permanent disbarment. Among the conceded charges are multiple failures to account and personal use of for the proceeds of workers compensation awards made to clients who were professional football and hockey players. He also failed to return files to numerous other professional athletes, engaged in multiple misrepresentation and ex parte contacts with the court in his personal bankruptcy and was convicted of driving under the influence.
The attorney had sent a letter offering permanent resignation and withdrawal from practice to the hearing committee. (Mike Frisch)
A Louisiana Hearing Committee recommends disbarment of an attorney for found to have engaged in a variety of unethical acts. A client who was cooperating with authorities gave information that led to a search of the lawyer's offices and seizure of his computer and software. The criminal case against the attorney was resolved by an agreement to cease practice for 18 months. The committee found he had engaged in criminal conduct and lied under oath at the bar hearing about it.
Other misconduct involved an unexplained escrow overdraft and failure to respond to disciplinary counsel's subpoena for the trust account records. Another involved threats that the lawyer had made to a client who complained about the quality of his services.
Last but by no means least was the battery inflicted upon his 74 year old father when he was took a two gallon gasoline can from the father's premises without permission. He pushed his father to the ground and broke his finger when the father tried to retrieve the can. Surgery and a painful recovery resulted. The attorney claimed he had permission from his now-deceased mother. The hearing committee accepted the father's testimony about the incident and found the lawyer generally incredible. (Mike Frisch)
Claims Against Law Firm Dismissed
The dismissal of claims brought against a law firm was ordered by the New York Appellate Division for the First Judicial Department:
This case involves professional services surrounding the design and implementation of a tax driven, sophisticated, individual private pension plan costing millions of dollars. The parties had various professionals in the form of accountants and lawyers representing them. Plaintiff describes himself, not as a member of the consuming public, but as a sophisticated entity, to wit: "a commodities trader on the New York Mercantile Exchange" who "operated [his] business as a sole proprietor." Therefore, this transaction was "not the modest' type of transaction the statute was primarily intended to reach" (id. [internal citations omitted]). Plaintiff also recognizes that "the target market of the Pendulum Plan' was for businesses, (such as mine) with a stable cash flow and minimal number of ancillary employees" rather than the consuming public in general.
Moreover, as plaintiff admits in his affidavit, it was not the form of the Pendulum Plan in general that ran afoul of IRS regulations, but rather the operation of plaintiff's particular plan that used life insurance as a tax shelter "in amounts that greatly exceeded both IRS imposed limits and the terms of the plan document prepared by Bryan Cave and approved by the IRS." As it was the operation of plaintiff's particular plan that caused the problems with the IRS, this is essentially a private dispute among the parties relating to advice that plaintiff received and his particular plan structure, rather than conduct affecting the consuming public at large.
The court found that claims of unjust enrichment, legal malpractice and negligence were not established:
The allegations do not support the claims for unjust enrichment against Bryan Cave and Smith and Hartstein. Whatever benefits they may have received were too attenuated from the conduct alleged and from their relationships with plaintiff. The claim is also not viable as against Bankers, and Thornhill as Banker's agent, because the express terms of plaintiff's valid insurance contracts govern Bankers' obligations to plaintiff.
The motion court should have dismissed the legal malpractice claims against Bryan Cave and Smith because no attorney-client relationship existed in 2002. The motion court was correct that the tax opinion letter was insufficient to support an attorney- client relationship, considering the letter stated it was for ECI solely and contained disclaimers cautioning readers to procure tax advice tailored to their specific plan. The motion court was also correct that the limited power of attorney was insufficient to show an attorney-client relationship as that document could also have authorized nonattorneys to act on behalf of plaintiff. The limited power of attorney only authorized Bryan Cave to represent "Robert A. Dennenberg, a Sole Proprietorship Defined Benefit Pension Plan" before the IRS and only for "Form 5307," which was the application submitted to the IRS for it to determine whether to approve the Plan. Plaintiff does not contend that Bryan Cave was negligent in submitting the Form 5307.
However, the motion court improperly relied on plaintiff's entirely conclusory allegations that plaintiff retained the services of Bryan Cave in 2001 to support the legal malpractice claim. Plaintiff points to no communications with Bryan Cave for legal advice about implementation of the Plan. Plaintiff offers no objective facts or actions to show the existence of an attorney-client relationship or the parties' mutual agreement that Bryan Cave would perform ongoing legal services for plaintiff.
In a last ditch attempt to hold Bryan Cave responsible, plaintiff claims Bryan Cave was negligent in defending him during his 2004 audit before the IRS, until October 25, 2005 when plaintiff retained new counsel. However, plaintiff points to no damage relating to Bryan Cave's alleged negligence during the audit period. Rather, according to plaintiff's allegations, all of plaintiff's injury stems from the implementation of the Plan, not from any actions the attorneys took during the audit period. Accordingly, the court should have dismissed the cause of action for legal malpractice. (citations and headers omitted)
Enough For Interim Suspension
The New York Appellate Division for the First Judicial Department has ordered the interim suspension of an attorney who, at the time of alleged misconduct, was a staff attorney with the Corporation Counsel. The allegation do not relate to his official duties. The charges:
The Committee's motion is based upon complaints filed by Michael D Shanabrook, Esq., and Alfonzo Mack. Pursuant to the Shanabrook complaint, respondent converted $30,000 that Shanabrook deposited in what he believed were respondent's escrow accounts for a real estate transaction. The Mack complaint alleged that respondent defrauded him of approximately $200,000 during the course of a real estate transaction.
Respondent was arrested on June 2, 2009 and charged with several felonies related to his activities with respect to the Mack complaint and in connection with an unrelated sale of property in Bronx County. On December 11, 2009,in the Southern District of New York, responded pleaded guilty to two counts of mail fraud arising from his participation in schemes to defraud two clients, one being Mack.
Interim suspension was deemed appropriate:
Immediate suspension on an interim basis is appropriate where the Committee has presented substantial and uncontested evidence of intentional conversion or misappropriation of client/third-party funds by a respondent...
In the instant matter, the Committee is in possession of substantial documentary evidence in the form of bank records and other documents which demonstrates respondent's misconduct. Indeed, respondent's failure to contest the motion and his qualified consent to the Committee's requested relief, as well as the invocation of his Fifth Amendment right against self-incrimination, is in of itself more than sufficient for the requested relief.(citations omitted)
January 7, 2010
Dishonest By Omission
Perhaps the most famous name in the history of Illinois bar discipline belongs to James Himmel, who was suspended for failure to report the misconduct of the client's prior counsel. His second brush with professional discipline has none of the drama or scholarly interest, as the Review Board recommends a 30 day suspension for neglect and misrepresentation. A Hearing Board had declined to find a misrepresentation and had proposed a censure. The review board disagreed:
[Client] Mager’s breach of warranty action became time-barred on October 5, 2004. Despite having spoken to his client at least once after that date, the Respondent did not inform Mager until March 2006 that he had taken no action concerning his case. The Respondent never informed his client that he lost his cause of action as a result. Mager did not become aware of the consequences of the Respondent’s neglect until counsel for the Administrator told him in September 2007.
Failure to keep a client informed of such an important matter has been found to be dishonest conduct by omission.
The Benefit Of Hindsight
A very interesting bar discipline matter from Arizona has resulted in a hearing officer recommendation for dismissal of all charges. The accused lawyer represented a criminal defendant in a trial with a co-defendant. The lawyer's client had completed his direct testimony on day 19 of the trial. The lawyer had advised the client not to testify and the client had done poorly. The relationship was strained. In the bar case, the lawyer:
characterized [the client] as a sociopath; a narcissist; a meglomaniac; very strong-willed; manipulative; controlling; and who argued with [counsel] endlessly throughout the approximately two years leading up to the trial.
The co-defendant had been passing notes to her client without any expression of concern throughout the trial. After the client's testimony, the co-defendant left a note on the table. A courtroom deputy saw the word "gun" in the note. The attorney, who was frustrated and upset with the client, made a "split second" decision to tear up the note.
The note was recovered by the deputies, taped up, shown to the judge, and admitted into evidence. The State Bar charged the attorney with destruction of evidence and lying to the court as to whether she had read the note. The hearing officer found that the attorney had not closely read the letter or appreciated its potential evidentiary value. It was not destroyed but rather torn into four pieces and was easily taped back together.
Was this unethical?
According to the report:
This Hearing Officer has seen other instances where an attorney had been in a protracted trial with a very difficult and threatening client, with very high stakes. It is not fair to in hindsight, after [the judge's] ruling, to judge that a snap decision of an attorney under stress, under all these circumstances, and her belief that the letter was a privileged communication [due to a joint defense agreement], was an ethical violation. While Respondent's tearing of the letter to tell her client "no" might seem in hindsight not to be a very effective form of communication, there is simply no evidence that Respondent tore the letter as a way to keep either the prosecution or the Court from having access to it....it is not fair in hindsight to judge Respondent's conduct from the safe distance of many months perspective, reflection and consideration what [Respondent] should have in those short moments with all that had been and was going on, realized what the letter represented and tempered her frustration with her client. Respondent's actions were rash and, in hindsight not wise, but they were not a violation of the Ethical Rules.
I agree that a lawyer's conduct should be considered in context in determining whether an ethical violation has been proven. (Mike Frisch)
The Wisconsin Supreme Court has denied the reinstatement petition of an attorney convicted in 1992 of first-degree sexual assault as a result of sexual intercourse with his 11-year-old stepdaughter. He consented to revocation of his license. In 1997, while an inmate assigned to a work-release program, he met his wife for lunch. He made sexual advances that she rebuffed and "he assaulted his wife such that for a period of time she feared for her life." He pled guilty to aggravated battery and related offenses and was sentenced to a 16 year term of imprisonent consecutive to the first sentence.
The petitioner sought reinstatement in October 2007. The petition was opposed by the Office of Lawyer Regulation (OLR"). At hearing, the petitioner denied the offenses relating to his wife and stated that he pled guilty because he was depressed and wanted to end the matter.
The appointed referee concluded that the petioner had "come to grips about the deep-seated psychological turmoil that allowed him to rape his 11-year-old stepdaughter" and that he would have recommended reinstatement if not for the second incident. OLR contended that the petitioner had show a lack of candor in the process.
The court held:
We adopt the referee's findings and conclusions and agree that Attorney...has failed to meet his burden of demonstrating by clear, satisfactory, and convincing evidence that his post-revocation conduct was exemplary or above reproach. In addition, we agree with the OLR that Attorney...has also failed to demonstrate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin and he has failed to prove that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest.
We do not reach this decision lightly. It has been 16 years since Attorney...agreed to the voluntary revocation of his license to practice law. In his petition for reinstatement he indicated that if his license were reinstated he intended to advocate for the rights of blind persons and others who are disabled and also intended to appear before legislative bodies concerning issues relating to disabled persons. While these are laudable goals, we are troubled by the fact that throughout his lifetime Attorney...has been given multiple opportunities to atone for his past behavior and time after time he has failed to live up to the chances he has been given. We conclude that he has failed to satisfy the burden placed on him by [the rule governing reinstatement].
January 6, 2010
AUSA Charged With Unauthorized Practice
The North Carolina State Bar has filed disciplinary charges alleging misconduct of an attorney while serving as an Assistant United States Attorney assigned to four federal districts. It is alleged that he practiced without an active law license from November 2003 to March 2009. The attorney had Florida and North Carolina licenses but was retired in Florida and suspended in North Carolina for non-compliance with CLE obligations. The charges allege that the accused was aware of the obligation to have an active license, concealed his status from his superiors and "falsely held himself out to the courts, his colleagues and the public as authorized and qualified to practice law."
And, one might add, to the people he was putting in jail.
In an unrelated matter, the State Bar has charged a court-appointed criminal lawyer with making "inappropriate comments of a sexual nature, both in person and by text messages" to his client. It is alleged that the lawyer made it known to the client that he wanted to have sex with her and "tried to touch[the client] in a sexual manner and tried to convince [her] to have sex with him."
Do Not Pass Go
The New York Appellate Division for the Fourth Judicial Department imposed a 30 day jail sentence for contempt of an order of suspension. The attorney had been personally served with the suspension order. He nonetheless maintained a law office, met with clients, corresponded with opposing counsel, conducted a deposition, solicited new business, possessed trust funds and failed to advise his secretary, clients and opposing counsel of his status.
This link should take you to the court's web page. The case is Matter of Marmor, decided December 30. (Mike Frisch)
January 5, 2010
A Sanction Disagreement
A majority of the Illinois Review Board has recommended a two year suspension without automatic reinstatement in a case where the attorney had been charged in four matters. Two involved alcohol-related traffic incidents. One involved charges relating his relationship with a female client, which were not established by clear and convincing evidence. Then there was this:
Count III involves a different type of misconduct that came to light in one of the Respondent’s divorce proceedings. Between 1991 and 1997, using an electronic device he taped the audio and video of his sexual activities with five different women in the bedroom of his home. These recordings were made without the consent or knowledge of the five women involved. The Respondent refused to identify the women, but did state that three were former clients and one was a secretary in his office.
The Respondent does not dispute that each of these recordings constituted a Class 4 felony (720 ILCS 5/14-4) and that the Administrator proved by clear and convincing evidence that the Respondent "(a) committed a criminal act, eavesdropping, that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct; (b) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); and (c) engaged in conduct which tends to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770." (citation to record omitted)
The videotapes apparently surfaced in a divorce proceeding started by a former wife. It became an item of some notoriety in his community. The charges brought by the Administrator also became a news issue prompting the Respondent to publish a letter in the Lincoln Courier on February 16, 2007 in which he acknowledged his misconduct and apologized to his family and friends. The letter concluded with a statement that
"I have gone through alcohol evaluations and followed the treatment recommendations and have had counseling to address the past mistakes I have made. I have fully cooperated with the ARDC and will continue to do so. I will accept their judgment and it is my expectation that I will be able to maintain my practice without interruption."
A dissent would impose a probationary sanction as proposed by the Hearing Board and suggests that an order entered in the case directing the attorney to identify the taped women (which he refused to comply with) was improper:
While Respondent’s [taping] actions were obviously wrong, it is clear that Respondent never sought to substantively violate the interests sought to be protected by the criminal statute — that is, he never released the tapes to the public or to other individuals, and he never identified the women in the tapes, as far as we know. The tapes came to light only because of the accident of Respondent’s wife finding and using them as a bargaining chip in a divorce. Moreover, Respondent’s refusal to name the women in the videotapes, as the Hearing Board ordered, is consistent with his prior conduct in not releasing the tapes to others or in identifying the women.
Concerning the Administrator’s request for the names of the women in the tapes and the Hearing Board’s order mandating disclosure, I respectfully disagree that such an order should have been entered. As noted, the purpose of the criminal statute is to protect against invasion of privacy. In my judgment, Respondent’s refusal to abide by the order helped further the interests sought to be protected.
Had Respondent complied with the Administrator’s request and an ARDC investigator thereafter knocked on the doors of these women who had moved on with their lives, the potential for psychological and emotional damage to the women and their families was considerable, while the benefit to the Administrator was negligible. Simply because a lawyer is under investigation by the ARDC with respect to certain violations does not mean that the Administrator, in all cases, must pursue every avenue of other possible unreported professional lapses, without evaluating the damage that might be inflicted on members of the public by engaging in that pursuit. In any event, the Hearing Board gave Respondent the benefit of the doubt on this issue. I find no rationale for the Review Board to take a less forgiving stance than the body that entered the order requiring disclosure.
In my view, Respondent meets all of the criteria for probation,...the record shows that Respondent, as he has in the past, can practice law without harming the public or causing the courts or the profession to fall into disrepute. Moreover, Dr. Henry so testified, assuming Respondent is receiving appropriate treatment, and the Hearing Board accepted his opinion.
The rejected charge had involved a single conversation with a much-younger client asking her for a date. She was "grossed out" and the subject was dropped. The attorney had denied the conversation. The Hearing Board concluded:
...the Respondent, at most, made inappropriate comments to a client on one occasion. The client declined the Respondent's dinner invitation, and, thereafter, the Respondent made no other inappropriate comments or advances toward the client. In fact, the client continued to have the Respondent represent her. We do not condone an attorney making comments as those alleged...Rather, we view such comments as demonstrating extremely poor judgment; however, exercising poor judgment does not, in itself, constitute ethical misconduct.
Conference Announcement on Law Firm Evolution; Timely WSJ Article Begging the Question: "Do Lawyers Evolve Sufficiently to Use the Technology Placed at Their Fingertips?"
Posted by Jeff Lipshaw
Carole Silver (Georgetown) passed along an announcement for “Law Firm Evolution: Brave New World or Business As Usual.” The conference will take place at Georgetown Law Center in Washington, beginning with an evening reception on March 21st and running through lunch on March 23rd. Speakers will include Richard Susskind (author of “The End of Lawyers?” and “The Future of Law”), but more importantly, friends like our own Bill Henderson, David McGowan, Michele Beardslee, co-author Larry Ribstein, and Paul Lippe of Legal OnRamp. Other notables: Jeff Lehman, former dean of the Michigan Law School, Cornell president, and current dean of the Peking University School of Transnational Law, David Wilkins, and Aric Press of the American Lawyer.
All of which segues nicely into an article entitled "Using Web Tools to Control Legal Bills; Big Law Firms Turn to Technology to Provide Clients With Real-Time Expenses, Automate Tasks" from the Wall Street Journal this morning which trumpets "new technology" about which I was harping during the law firm beauty contests our staff held for purposes of choosing "preferred providers" back at the beginning of this decade (which began on 1/1/2001 and doesn't end for another year). Pardon my occasional slip into facetiousness, but what follows ain't a technology issue, except as it relates to the technology extant in the six inches between a lawyer's ears.
Let me provide some background here. In 1998, my old law firm, Dykema Gossett PLLC (now Dykema "A Firm Unlike Any Other") installed billing software that allowed any human being (I include lawyers) to open a program in the morning, keep it open, and, without resorting to paper time sheets, memory, Post-It notes, or scrawls on one's body (like that guy in Memento), to record one's billables in, as we have come to say, REAL TIME. The upshot of this was the potential of fine grapes in/fine wine out: somebody could actually tell a client in REAL TIME how much a matter was costing.
Fast forward a couple years to about 2002. I'm now the general counsel of a public company. Put aside whether it's a good thing for society - public companies report their earnings every three months, and whether they give "guidance" or not, securities analysts make models in which they predict what those earnings will be. On the inside, the company knows what those estimates are and, all other things being equal, tries not to rub too many analysts' noses in the dirt by surprising them on the downside. In short, you can't rule out contingency and surprise, but the whole point of having information available to management about sales, costs, trends, weather, the macro-economy, etc. is to plan for it.
Now consider a law firm managing some major matters for that client. During the beauty contest, the GC will say: "Look, I need you to understand how important financial management is, wholly apart from the quality of your work. X dollars in absolute terms equals Y cents per share, and if you surprise me with bills or accruals in the last month of a quarter or a year that can be X or more, you've actually affected our relationship with our shareholders." This is because the GC knows how law firm billing cycles work. Associate Miguel does twelve hours of work on November 3. This work doesn't get rolled up into a "pre-bill" for review by the relationship partner until some time after the end of the month, say December 8. The final bill comes out a couple weeks later, say, December 23. Which means that there's almost a sixty day lag between when the firm does the work creating an accrual, since the company owes the firm for the work, and when the firm finally tells the company how much it owes. If the company finds out on December 23 that, indeed, the firm ran up multiples of X dollars in the preceding sixty days, the GC finds herself in an extremely uncomfortable conversation with the CEO and CFO, not because the work didn't need to be done, but because the management of the information relating to the work was so badly butchered.
So we manage this, understanding as we do it's partly science and very much art. Every quarter we hold a reforecast meeting on each legal matter. In November, we tell the law firm we want an estimate of an accrual through December 31, meaning all the work that has been completed and is waiting to be billed ("WIP") and everything the firm thinks it needs to do through December 31. The firm says "oh, no problem, we have a system just like the one you used at Dykema A Firm Unlike Any Other." And the GC says, that's great, do you have a culture in which the lawyers actually put their time in every day so that we get fine grapes in and fine wine out? And the answer is almost always, despite the slickness of the Power Point, "well, it's hard to get the lawyers to do that." Garbage in, garbage out. So the GC pounds his fist on the table and says, "I want to be able to call you at 1:00 p.m. on Friday, and know exactly how much time we've invested in each of our matters through the close of business on Thursday, and I want you to be able to get the report back to me within an hour." (By the way, this should be music to the managing partners' ears because it means that time gets billed, bills get sent, bills get paid, and partners make money.)
Well, read the WSJ story. Foley & Lardner can do that now. Indeed, I shouldn't be facetious. The firm can look at a matter by activity, suggest it's being handled inefficiently, and recommend alternatives, such as bringing it back in-house. No doubt the technology is better. But garbage in/garbage out (or as we used to say, the human interface) is still going to be an issue, and only leadership and culture change that.
P.S. As long as I'm ranting (albeit with ten fingers on a keyboard that I will post in REAL TIME), I can still remember an old partner, who was OLD circa 1980 or 1981, who produced documents as follows: he would write them out long hand, then call in his secretary and dictate to her from what he had written. Then she would go to her IBM Selectric typewriter and type out what he had dictated in OCR (optical scan) format, which was then fed into a mainframe computer, which then turned out a draft, which she reviewed, then sent back for a final, which she then gave to him, which he marked up with a pen, gave it back to her, and so on. I have to believe the cycle time for the production of a moderate length brief was three weeks.
What Does Someone Have To Do To Get Disbarred Around Here?
The District of Columbia Board on Professional Responsibility has agreed with a hearing committee that an attorney engaged in serious misconduct both in his practice and in the disciplinary process but rejected Bar Counsel and the committee's proposed disbarment in favor of a three-year suspension with fitness. My question about the case is posed in the title to this post.
The attorney had joined a prominent law firm in 1994 and was made partner in 1995. His practice involved real estate. A firm client retained him to negotiate and prepare an easement relocation agreement between the client and adjacent land owners and others. The attorney started but never completed the work. Rather, he gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. As a result, the client proceeded to a closing and entered into a construction contract. The attorney falsely advised that he had provided notice to interested parties.
The attorney for an adjacent landowner learned of the construction project and complained to the client. The client could not reach the attorney but contacted another firm partner, who confronted him. The attorney "admitted his actions and attributed them to stress, his use of cocaine and drinking." The problem was cured "at a substantial cost to the law firm." The client did not suffer material injury.
The firm immediately suspended the attorney and later terminated him. The attorney was advised that the firm would report him to Bar Counsel if he did not self-report. When he did not do so, the firm reported him. He responded to the bar complaint and "[m]ost of what he told Bar Counsel was false." He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic acccident.
Does anyone see a pattern here?
The board did, as the attorney had acknowledged "that he had trouble telling the truth." The board also agreed that the attorney had failed to establish any significant mitigation other than a lack of prior discipline. It rejected claims based on ADD, depression and alcohol addiction.
While the attorney admitted cocaine use since college and daily use while at the firm, his work was otherwise excellent. The District of Columbia does not mitigate sanctions based on cocaine addiction and, in any event, the hearing committee had found that substance abuse did not cause the misconduct. The board nonetheless (and wrongly, in my view) concludes that the precedents in the District of Columbia do not require disbarment.
The board cites cases where the Court of Appeals (usually at its urging) declined to impose a full measure of reciprocal discipline on lawyers disbarred in Maryland for serious dishonesty. It finds distinguishable at least two original cases where disbarment was imposed for serious dishonesty absent prior discipline.
If the board is correct, it's a sad commentary of the state of legal ethics in the District. False document, false notarizations, multiple lies to client, severe harm to firm, lies to the disciplinary system, lies to treatment facility. Lies, lies, lies.
I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case.
The case is In re Silva, decided December 31, 2009 and can be found by following this link. Go to search by date range, click on "submit" and locate by the name. (Mike Frisch)
January 4, 2010
No Joking Matter
The New York Commission on Judicial Conduct has censured a village court justice for refusing to take an agreed-upon plea of guilty in a case until the agreement allowed him to impose fines for the benefit of the Village. He had been pressured by the Village Board to generate revenue for the Village. Both the prosecutor and defense had objected. His "persistence in misconduct even after the attorneys' warnings compounds the impropriety." He then made improper public comments about the case while an appeal was pending.
One controversial finding of misconduct related to his political activity in nominating a candidate for Village Trustee at a local party caucus. The commission majority found that this activity was a prohibited endorsement. One member would have found no violation, as the applicable rules and carved-out exceptions with respect to political activity fail to provide sensible guidance:
The upshot is confusion, ad hoc results and unintended, yet staunchly defended, hypocrisy. In [two cited cases], the Court of Appeals struggled to make sense of the non-sensical. When judges cannot even figure out what political activity is misconduct, how can a realistic scheme be enforced? The distinction the Rules and their interpretations rely on are so fine that they are, at best, meaningless. At worst they suffer from the looming reality of the pervasive fact of life that judges have to generate campaign contributions from the very people they judge. As long as this profoundly unethical activity resides at the heart of judicial elections, all other "political" activity pales by comparison....New York's judiciary is in a state of extremis. Judges are as cynical about their exalted work as are the litigants who are judged. Feeding this cynicism by engaging in official hypocrisy over so-called "political activity" misconduct is a joke. Regrettably, the situation does not call for humor.
"Relatively Minor Function" Draws Reprimand
A single justice of the Maine Supreme Court ordered a public reprimand of an attorney who "was asked by a former client to perform a relatively minor function as a closing agent for a real estate transaction." Unfortunately for the attorney, the transaction was money laundering as the former client was concealing his purchase of the property by use of a straw man. The former client was known by the lawyer as a "reputed drug dealer." Straw man brought over $50,000 in cash to the closing and did not wait for a receipt. Straw man had just received the cash in a paper bag in the attorney's office parking lot. Former client and straw man pled guilty to money laundering in federal court.
The court here concluded that the lawyer "did not give [the transaction] the attention it was due." He had let his staff do most of the pre-closing work and had not anticipated a large cash payment. The attorney also had failed to file the required federal form for his receipt of over $10,000. (Mike Frisch)
Failure To Inform
The web page of the Tennessee Board of Professional Responsibility reports that a Memphis lawyer was suspended for one year with the final six months suspended and six months of probation.
The attorney had entered a conditional guilty plea to disciplinary charges that he had engaged in a conflict of interest "by failing to inform his client that he had an affair with the client's wife prior to representing him in a divorce proceeding against the wife." (Mike Frisch)
January 3, 2010
The Iowa Court of Appeals reversed and remanded an order of professional discipline imposed by the Iowa Board of Medicine, concluding that the defense of laches had been established. The alleged incident of sexual abuse of a minor patient occurred in 1973. The complaint was received in 1998. An initial investigation found that "nothing inappropriate" had happened. The doctor was not notified of the complaint until 2004. Charges were filed in April 2006. The board imposed a $10,000 fine, five years probation and ordered that the doctor see minor patients only with a chaperone. On review, the district court had found the delay was "not ideal" but nonetheless affirmed the board's discipline.
The court here found that the delay was both unreasonable and that the doctor was prejudiced as a result. He had destroyed his records and the records of the alleged victim's therapist also were no longer available. Further, the alleged victim's father had died and mother could not testify due to her health. The mother's deposition was admitted, which deprived the accused of the ability to cross-examine her.
The remand order directs that the charges be dismissed by the district court. (Mike Frisch)