March 20, 2010
Client Had "Disposable Income And A Zealous Interest In Litigating"
A recent bar discipline decision was summarized on the web page of the Massachusetts Board of Bar Overseers:
The Board of Bar Overseers (board) filed an Information recommending that the respondent...be suspended from the practice of law for a term of four months, and that his reinstatement be conditioned on taking and passing the Massachusetts Professional Responsibility Examination. The respondent joins in the board's recommendation. Bar Counsel recommends that the respondent be suspended for the term of one year and one day, and that he be ordered to submit to fee arbitration with the deceased client's estate.
The board adopted the findings of fact of the hearing committee, which can be summarized by quoting this introductory paragraph from the hearing committee report:"The credible evidence amounts to this: Representing a [professional woman] with disposable income and a zealous interest in litigating against [two of] her former employers, the respondent allowed the client to dictate a misguided strategy involving excessive and improper discovery requests that did not materially advance the client's cases but did generate large hourly-based fees for the respondent. The respondent should have done far more than he did to restrain the client's overzealous pursuit of discovery with realistic, focused, and independent professional advice. Instead, the respondent voiced only limited objections and then continued to pursue the client's hopelessly excessive and improper discovery requests. Given the misguided strategy, the high fees generated little or no value for the client. While much of the respondent's work in this misdirected pursuit was competent, the cases went nowhere and the work was ultimately wasted. The gravamen of the misconduct here is that the respondent placed his interest in retaining a profitable client ahead of his professional duties as a member of the bar to effectively counsel clients and provide diligent, competent representation. As a result, the client's cases never advanced beyond discovery disputes despite the passage of years and the payment of high fees."The board adopted the conclusions of law of the hearing committee, namely, that the respondent violated Mass. R. Prof. C. 1.1 (competent representation), 1.3 (diligent representation), 1.4 (b) (explain matters to permit informed client decisions), and 1.5 (a) (charging and collecting clearly excessive fee), but not 1.2 (a) (seek client's lawful objectives through reasonably available means). The hearing committee reasoned that although the pleadings and motion papers in both cases generally were competently prepared, that the respondent was reasonably prepared in the depositions he defended, and that his pursuit of interlocutory relief was appropriate, he failed to focus on the two employers' reasons for terminating the client's employment. Instead, he allowed the client to dictate the general thrust of the litigation by turning it into a forum to validate the client's scientific opinions. As a result, the cases were mired in discovery for more than three years. The hearing committee concluded that the respondent failed to design and implement a strategy to move the cases forward in a reasonably diligent and prompt manner, and his overall handling of the cases fell short of the competence, reasonable diligence, and promptness required by Rules 1.1 and 1.3.
The hearing committee determined that the respondent's failure to realistically evaluate the client's likely recovery in the two cases also violated Rule 1.1, but because he was diligently pursuing the client's expressed goals, he did not violate Rule 1.2.
The committee found that the respondent failed to help the client focus on what her goals should be and how best to pursue them. He was aware that she had been terminated by three employers in five years under similar circumstances, and that there were significant legal and damages issues with the two cases he was prosecuting. Nevertheless, he presented a best case scenario suggesting the client could recover up to $770,000 against employer A. The committee determined that the respondent's evaluation did not assist the client in making the kind of informed decision contemplated by Rule 1.4(b).
The time, labor, and skills required by the cases were not unusual, but the cases did present some novel and unsettled issues of law typical of wrongful termination and wage claims at the time. The hearing committee determined that these issues did not warrant the time billed, and because the vast bulk of the fee was based on an hourly rate, the respondent unfairly placed the risk of inefficiency and delay on the client. The committee found that although the respondent's hourly rate was reasonable, considering the locality, the type of case, and the respondent's experience, the total fee was excessive and substantially exceeded fees typically charged in such cases. The total fee charged by the respondent for the discovery phase of the two cases, about $700,000, "destroyed the economic viability of the cases," as the hearing committee found. After discharging the respondent, the client secured other counsel who promptly settled the case against employer A for approximately $40,000, and dismissed the case against employer B without compensation. The committee determined that, even considering the client's contribution to the wasted time and expense, the fee was clearly excessive under Rule 1.5 (a). See Matter of Fordham, 423 Mass. 481 (1996).
In aggravation, the hearing committee found (adopted by the board) that in 1998, the respondent received an admonition for failing to promptly disburse the balance of a personal injury settlement withheld to pay a medical provider. In 2005, he received a three-month suspension for failing to handle settlement funds received on behalf of a minor client in accordance with a court order, distributing funds to the minor's mother in violation of court orders, and failing to keep adequate records of the settlement funds.
Also in aggravation, the hearing committee found that the respondent's failure to control the litigation and to properly advise his client was motivated by a desire to retain a client who was paying him large fees. Finally, the hearing committee found that the respondent's substantial experience is a matter in aggravation.
The parties do not contest the findings and conclusions of the hearing committee. I am satisfied that the findings are supported by substantial evidence, see S.J.C. Rule 4.01, § 8 (6), and that the conclusions of law of the hearing committee are correct.
Turning to the question of the sanction, the typical sanction for neglect with resulting harm is a public reprimand. The typical sanction for charging an excessive fee is a public reprimand. The respondent's conduct is more egregious than that in Fordham because the client in this case was charged more and received less than in Fordham. In that case counsel charged a $50,000 fee to represent a client in 1989 on an OUI charge at a bench trial, more than three times the fee typically charged for such a case (it included a novel and successful motion to suppress breathalyzer test results, but otherwise was not a particularly complex matter). Another feature of this case that distinguishes it from Fordham is that here the respondent compounded his misconduct by failing to advise the client properly. Any doubt about the propriety of a suspension is put to rest by the hearing committee's finding that the respondent acted selfishly, and has a disciplinary history that includes a three-month suspension.
A term of four months is consistent with recent decisions involving neglect, excessive fees, and other aggravating circumstances. It is also appropriate to require the respondent to take and pass the Massachusetts Professional Responsibility Examination in light of his disciplinary history and to provide additional assurance that he understands his duties and responsibilities and will not repeat his misconduct.
Bar Counsel requests that the respondent's reinstatement be conditioned on making restitution as determined by fee arbitration. This request had been rejected by the hearing committee and the board on the ground that reinstatement from a suspension shorter than a year and a day should not be conditioned on making restitution in an amount agreed to by the client's estate or as determined in fee arbitration. What constitutes an excessive fee in this case will not be ascertainable without difficulty, not the least of which is that the client is deceased and her absence will make it difficult to determine the effect of her influence over the respondent; and the respondent is experiencing problems with his memory, apparently due to medical issues that rendered him comatose for over one month. However, restitution is appropriate, as both the hearing committee and the board acknowledge, and Bar Counsel persuasively argues that the respondent should not be unjustly enriched by his professional incompetence and selfishness. Where restitution is an appropriate remedy, it would not be "in the interest of the public welfare" to avoid the issue.
An award of damages need not be proved with mathematical precision, although mere speculation is insufficient. An element of uncertainty is permitted in calculating damages, particularly in business torts, which are similar to this case, where the critical focus is on the wrongfulness of the defendant's conduct. If damages can be estimated, based on reason, principle, and sound judgment, that is sufficient in the circumstances.Consequently, the respondent must submit to fee arbitration, if requested by the client's estate within sixty days of the date of entry of this decision, as a condition of reinstatement. As a further condition of reinstatement he must pay any such award or submit a payment schedule subject to approval by this court, and his adherence to such schedule will be a continuing condition of reinstatement. (citations omitted)
The case is Matter of Rafferty, January 28, 2010. (Mike Frisch)
March 19, 2010
County Attorney Suspended
An Iowa attorney was suspended for an indefinite period not to exceed six months by the Iowa Supreme Court. The attorney was admitted in 2004 and is presently the Floyd County Attorney. The complainant alleged that the attorney had engaged in a sexual relationship with her after representing her in a mental health commitment hearing. As the attorney was running for his current office at the time, the news of the allegation spread quickly and was "highly publicized by the local and surrounding media." The attorney spoke publicly about the allegations during the "hotly contested three-way race" that he eventually won.
The disciplinary commission had found insufficient evidence of a sexual relationship but that the public comments revealed confidential information. One member would have found that the evidence established at least one occasion of sexual intercourse.
The attorney was appointed to represent the client after she was involuntarily hospitalized for an overdose. When she was released, the attorney agreed to give her a ride to Charles City: "two inconsistent accounts of what transpired in the following hours, days, and weeks emerged at the disciplinary hearing." The court found that the evidence (recited in detail down to a physical description of the attorney's buttocks) was "wildly conflicting" and "tended to both corroborate and discredit" the testimony of both.
As to the buttocks: "[the attorney] flatly denied [the client's] description of his buttocks. Yet, he failed to further counter the claim of [flabby butt] with equally sharp and decisive evidence to verify his denial. The claim involved an unusual but distinctive condition of a private part of a person's body, and [he] had the ability to disprove the existence of the condition and discredit [the client]."
The court found, as a result of its de novo review, that the evidence established the sexual relationship. The evidence failed to establish a sex-for-fees arrangement. The court further found that the attorney violated his duty of confidentiality by publicly disclosing the client's prior history and litigation involving her former probation officer. The attorney's ability to defend against allegations
...is not absolute. A lawyer can reveal confidential information only in the appropriate forum and only to the extent necessary to offer protection.
The court concluded that a suspension was called for in light of the client's vulnerablity. Justice Appel, joined by Justice Baker, concurred and dissented and would defer to the commission's findings with respect to the sexual relationship claims. They would impose a public reprimand for the confidentiality violation.
A story on the court's decision from WCFCourier.com is linked here. (Mike Frisch)
The Iowa Supreme Court has imposed a public reprimand of an attorney in connection with his representation of a husband and wife charged with criminal violations that related to purchasing and reselling game fish harvested in Iowa in their grocery store. Both clients had emigrated from Thailand and had some difficult understanding English. The clients were very concerned about any publicity that would result from a conviction. The attorney arranged a guilty plea. Despite his efforts to limit the publicity, the conviction was reported in the media. The clients were angered, fired the attorney, and filed a bar complaint. The convictions were vacated based on findings of ineffective assistance of counsel.
The court concluded that the evidence did not clearly establish that the attorney had testified falsely at the post-conviction hearing. There was no transcript of the original guilty plea. At most, the attorney testified inaccurately about events that had taken place several years in the past. The court noted the distinction between a faulty memory and a knowing falsehood. The court concluded that the primary ethical lapses were a result of the failure to have an interpreter at the plea. The court noted that the attorney had no prior discipline and a record of good works. (Mike Frisch)
Not Substantially Related
The Nebraska Supreme Court reversed an attorney disqualification orderin a matter involving a peripatetic employee. When the employee joined a printing company in 2003, he was sued by a former employer for an alleged violation of a covenant not to compete. The printing compant retained an attorney for the employee. When the employee then left the printing company in 2009, the attorney represented the company in a suit against him for breach of the duty of loyalty, misappropriation of trade secrets and conversion
The court here found that the district court improperly considered the appearence of impropriety but that the error was harmless in light of its de novo review of conclusions of law. The court found that the matters were not substantially related as the representations do not present the same liability or scientific issues. The only common witness is the employee.The court also noted the three-year gap between the end of the prior representation and the start of this case. (Mike Frisch)
No Attorney-Client Relationship
The Lousiana Supreme Court imposed a public reprimand of an attorney who was involved in a dispute over the installation of stained concrete flooring in a custom home.
The owner of the building company (respondent was dating the owner at the time; they are now married) met with the supplier and manufacturer of the staining product. They "vigorously asserted" that the stain was not defective. The builder asked the respondent about a possible lawsuit and he agreed to pursue the claim. He had concerns about the proper plaintiff as the staining product had been purchased by the builder but was now incorporated into the home. The respondent decided to have the homeowners assign the right to sue to the builder.
The builder presented the assignment to one of the homeowners, who signed it without the passing of consideration. The respondent then filed suit on the builder's behalf against the supplier and manufacturer. The case was removed to federal court (where he did not practice) and was eventually dismissed.
Meanwhile, the homeowners retained their own attorney and filed a lawsuit against the builder. The respondent defended the suit and claimed that the assignment deprived the homeowners of the right to sue. The homeowners filed a bar complaint, alleging a conflict of interest on the part of the respondent.
The court found that the evidence did not establish an attorney-client relationship betwen the respondent and the homeowners. Thus, there was no violation of the rule prohibiting either concurrent or successive conflicts of interest. The hearing committee specifically found no such relationship and the homeowner with whom the attorney dealt "was a mature, sophisticated, and well-educated consumer of contracting services. She could not reasonably have assumed respondent was representing her in a lawsuit based upon a three-minute cell phone conversation with a person who may or may not have been the respondent or even an attorney."
However, the respondent did violate ethical rules in his unfair dealing with a unrepresented person. His failure to clearly state his interest to the homeowners constituted a misrepresentation by omission. The court found that the conduct was negligent and caused little or no actual harm to the complaining homeowners.
Respondent has been ineligible to practice law since September 2006 for failure to pay bar dues and the disciplinary assessment.
Update: Corrected in light of the comment. (Mike Frisch)
March 18, 2010
Former Bar Employee Sentenced To Prison
From the March 2010 California Bar Journal online edition:
A former State Bar employee was sentenced to 32 months in state prison last month after she admitted embezzling more than $600,000 from the agency. Sharon Elyce Pearl, 52, pleaded no contest in December to one count of embezzlement and six counts of filing false tax returns.
She was ordered to make restitution to the bar, as well as pay taxes, penalties and other costs, totaling almost $900,000. Pearl already has paid almost $400,000 to the bar.
Attorney General Edmund G. Brown Jr. said Pearl “methodically embezzled” the funds to spend on spa treatments, designer clothes and other luxury items. “As the State Bar's Director of Real Property, Pearl methodically embezzled more than $600,000 to bankroll a lavish lifestyle,” Brown said.
Pearl was responsible for handling building management and she collected rent from tenants at the bar’s 180 Howard Street headquarters in San Francisco. As early as 2002, she began to embezzle a portion of the rental funds she collected, directing some tenants to make their rent checks payable to “PLOT — The State Bar of California.” PLOT stood for the Piedmont Light Opera Theatre, where Pearl was a signatory on the theater’s accounts. She deposited the checks into theater accounts and then transferred funds to her personal bank account.
When the bar uncovered Pearl’s scheme in 2008, it launched an internal investigation into financial discrepancies and ultimately discovered that Pearl was maintaining two sets of books. The investigation was referred to Brown’s Special Crimes Unit for prosecution.
As part of her sentence, she was ordered to pay $615,790 in restitution to the State Bar; $167,422 in staff, audit and attorney costs to the State Bar; and $116,652 in taxes, penalties, interest and investigation costs to the Franchise Tax Board.
The sentence, issued in Alameda County Superior Court, did not include federal taxes Pearl may owe.
Weighing Factors Leads To Lengthy Suspension
The Minnesota Supreme Court imposed an indefinite suspension of at least two years for incompetent representation and related violations in the representation of a client in a bankruptcy matter. The client had wished to protect the proceeds of a structured settlement that she was receiving over a period of time. The attorney also engaged in dishonest conduct by issuing a non-negotiable check and refusing to communicate about it.
The lawyer was no stranger to bar discipline. Since he started his own firm in 1993, he had been "admonished ten times and publicly disciplined four times."
Here, the court found that the hearing referee had failed to make findings on his asserted remorse, but concluded that a favorable finding would not have affected the sanction. The court rejected other claims of findings in aggravation of sanction and failure to find mitigation. Among other things, the referee properly found insufficient evidence to establish mitigation based on an asserted adjustment disorder. The court also rejected the contention that the sanction was too severe. (Mike Frisch)
It'a A Puzzlement
The Oklahoma Supreme Court denied a petition for reinstatement of an attorney who had resigned while facing a panel's proposed suspension of two years and a day. The court was unimpressed with the asserted reason for misappropriation of entrusted funds:
In 1986, two years before his initial suspension,[the attorney] was appointed as counsel for Charles Troy Coleman in a well-publicized, high-profile, murder trial which ended in Coleman's execution. In the reinstatement hearing, the attorney testified that his involvement in the Coleman case put him in a downward "spiral" which led to his first suspension. Once he was reinstated, [he] testified that he still found himself trying to make up for the "Coleman thing" but that he continued to "spiral" into a position where he felt forced to misuse his client's funds going so far as to describe his actions as "robbing Peter to pay Paul."
Misappropriation is the most serious infraction occurring with the handling of trust monies. There is no question that the attorney misappropriated client funds. What is puzzling is [his] after-the-fact reliance on his representation of a criminal defendant to demonstrate how his money problems began and intensified. In [his] attempt to defend his actions and avoid discipline in [his second bar case], the cause in which he resigned and from which he now seeks reinstatement, he never once related any of his problems to the defense of Coleman in the hearing before the trial panel. There is not a single reference, in the one-hundred-and-twenty-seven-page transcript of proceedings, where Coleman is even mentioned. The lack of any such testimony calls into question [his] veracity before the trial panel in the reinstatement proceedings.
The court also concluded that the petitioner had engaged in unauthorized practice after suspension. (Mike Frisch)
The Ohio Supreme Court web page reports:
The Supreme Court of Ohio today imposed an indefinite suspension against the law license of [a] Columbus attorney...for multiple acts of misconduct in his dealings with a client he represented in a personal injury case.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that after obtaining a $95,000 settlement from the party responsible for his client’s injuries, [the attorney] billed the client for more than $8,100 in fictitious “deposition fees” in addition to the 33 percent contingent fee he had agreed to accept, and also converted to his own use $30,000 he withheld from the client’s proceeds to satisfy a subrogation agreement between the client and the state Bureau of Workers’ Compensation. [The attorney] never forwarded the $30,000 to the workers’ compensation bureau, and after the client challenged the “deposition fees” included in his bill, [he] submitted a revised distribution sheet in which he eliminated that charge but substituted an $1,800 refund to the client and retained an additional $6,333 in legal fees, which he later alleged to be payment for his services in negotiating the workers’ compensation subrogation agreement.
In today’s 7-0 per curiam decision, the Court agreed with the disciplinary board’s conclusions that [the attorney's] actions violated, among others, the state disciplinary rules that require attorneys to keep client funds in a dedicated trust account and maintain accurate records of funds held for clients and that prohibit intentionally causing prejudice or damage to a client; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that adversely reflects on an attorney’s fitness to practice law.
The court's opinion is linked here. (Mike Frisch)
Fee Sharing Agreement Does Not Create Joint Venture
The Maryland Court of Appeals addressed the implications of a fee sharing agreement between two attorneys pursuing a medical malpractice case. Attorney One referred the matter to Attorney Two early in the prosecution of the case. They entered into an arrangement by which the division of fees was based on the "anticipated division of services to be rendered." Attorney Two had primary responsibility and Attorney One was to assist as requested by Attorney Two.
While the claim was in negotiations, Attorney Two advised the clients that they might have a legal malpractice case against Attorney One. The underlying medical malpractice case then settled for $225,000. Attorney Two paid Attorney One one-half of the fee.
Attorney One then sued Attorney Two on a variety of contract and tort theories alleging breach of good faith, fair dealing and disclosure duties. The circuit court granted summary judgment to Attorney Two. The Court of Special Appeals affirmed. Here, the Court of Appeals agreed, concluding that Attorney Two fulfilled her covenant of good faith and fair dealing by delivering to Attorney One his proportionate share of the fee.
The court held that the fee sharing agreement did not establish a joint venture with the resulting fiduciary obligations that would apply to such ventures. The court agreed that the tort claims failed because, among other things, Attorney Two "could not tortiously interfere with an economic relationship to which she was a party." (Mike Frisch)
March 17, 2010
No Basis For Counterclaims Against Law Firm
A recent decision of the New York Appellate Division for the First Judicial Department:
Plaintiff law firm represented defendants in a federal civil action and state criminal action arising out of defendants' misappropriation of funds from defendant wife's prior employer. During the course of the representation, these parties renegotiated a fee agreement under which defendants would pay plaintiff a flat rate of $7,500 per month and provide $4,000 in in-kind services. Despite making the monthly payments, defendants failed to pay off the outstanding balance and refused to grant plaintiff a lien on their real property. Plaintiff initiated this action to recover the fees, and withdrew as counsel in the federal action. Defendants asserted counterclaims for breach of contract, legal malpractice, breach of fiduciary and fraud.
Defendants failed to allege a viable counterclaim for breach of contract, as they were unable to identify the terms of the agreement allegedly breached. Nothing in the modified agreement prohibited plaintiff from requesting a lien on real property, withdrawing as counsel, or commencing an action based on unpaid legal fees.
Nor did defendants properly allege a counterclaim for legal malpractice. The steps plaintiff took in litigating these cases were among many reasonable options. The allegations that plaintiff's decisions were unreasonable are based on hindsight, which is "an unreliable test for determining the past existence of legal malpractice"
As to breach of fiduciary duty, defendants' contention that plaintiff prolonged the litigation for purposes of "churning" the case to increase the legal fees is speculative and conclusory. Defendants failed to otherwise allege any facts showing that their attorney followed any inappropriate course of action.
There was no viable counterclaim for fraud, in the absence of facts alleging that plaintiff knew its estimate of legal fees was false at the time it was made. (citations omitted)
"I Would Disbar This Felon"
The Oklahoma Supreme Court has suspended an attorney for two years and a day for three misdemeanor and one felony conviction. The facts:
This case is a disciplinary proceeding against Respondent...[He] was convicted in Pawnee County of felony unlawful possession of a controlled substance, Oxycodone. He was placed on three years' probation, with the first year under supervision of the Oklahoma Department of Corrections. Respondent was also convicted of three misdemeanors in Tulsa County - one count of entering a building with the unlawful intent to commit assault and battery, and two counts of assault and battery upon the persons of an eleven-year-old girl and a five-year-old boy. He received a one-year sentence for entering a building with unlawful intent, with the first 23 days to be served in Avalon and the remaining suspended. For the assaults, Respondent received 90-day sentences, with part in the custody of Avalon and part suspended, to run concurrently with the sentence for entering with unlawful intent.
...we issued an Order of Interim Suspension. We subsequently referred the matter to a Professional Responsibility Tribunal, because the probable cause affidavit in the Pawnee County felony case indicated that Respondent (1) took payment, at least partially, from a client in the form of Oxycodone, (2) received payment for legal services in the form of drugs on other occasions, and (3) occasionally took sexual favors from women for payment of legal fees.
...We also specially noted the Tulsa County misdemeanor convictions stemmed from misconduct occurring less than three months after this Court disciplined Respondent for prior criminal misconduct....we publicly censured Respondent on June 26, 2006, for his inappropriate touching of two Tulsa County Courthouse female security guards in February 2004. Respondent entered guilty pleas to two misdemeanor charges of outraging public decency stemming from this incident and received concurrent one-year sentences on each charge. He was also ordered to perform forty hours of community service.
As to sanction:
Respondent has offered no evidence in mitigation as to his reputation as an attorney. Respondent continues to drink alcohol and abuse other substances and has shown a lack of judgment and repeated indifference to the law. At the hearing before the PRT, Respondent was asked if he wanted the panel and this Court to give him a third chance. Respondent responded by stating "yes, because that's what life is sir. If you make a mistake today, you'll learn from it. You make a different mistake tomorrow, you'll learn from that one. Life is about mistakes and getting a second chance to not make it."
This Court finds by Respondent's own testimony that he does not recognize his problems and that he does not seek and/or cooperate in treatment except on the occasions where he thinks "he needs it." While not bound by the recommendations of the PRT, this Court agrees that Respondent's actions have fallen woefully short of being rehabilitated. We find that he has failed to take any meaningful steps to address and resolve his addictions and their adverse impact on his fitness to practice law.
Two justices would disbar. Justice Taylor said bluntly and in bold-face type: "I would disbar this felon." (Mike Frisch)
A Push Too Far
The Indiana Supreme Court approved an agreement for discipline of an attorney for repeated neglect, failure to communicate with clients, failure to cooperate with the bar investigation, failure to retirn unearned fees, and filing inadequate appellate briefs. The court imposed a suspension of at least six months without automatic reinstatement.
One instance of misconduct merits attention: "When one client told a judge in court that he had fired Respondent, Respondent told him to shut up and pushed him down in his chair, and then falsely denied that he had pushed his client to the [Disciplinary] Commission." (Mike Frisch)
March 16, 2010
Use of Handicapped Parking Tags Leads To Suspension
A summary of a bar discipline matter from the web page of the Massachusetts Board of Bar Overseers:
The respondent provided legal services to a client in a variety of matters between 1998 and 2001. The respondent also socialized with this client and lived in her home from approximately 1999 into 2001.
The client was the mother of a severely disabled child who lived with her in the late 1990’s until about 2001. In January 2005, the father was awarded sole custody of this child, and the mother moved to California.
The child was a registered owner of a disability placard issued by the Registry of Motor Vehicles. Both of the child’s parents possessed duplicate copies of this placard. Sometime prior to 2005, the child’s disability placard in her mother’s custody went missing. From February 2005 until about August 2007, the respondent intentionally used the child’s disability placard to defend against parking tickets he received in Boston, including but not limited to parking in handicapped parking areas. The respondent wrote appeal letters to the office of the parking clerk requesting dismissal of various parking tickets by falsely claiming that he was transporting the disabled child to medical appointments at the times the tickets were issued and enclosing a photocopy of the child’s disability placard as proof. The respondent had no contact with the child and knew that he was not entitled or authorized to use the disability placard.
On April 5, 2007, a research analyst employed in the office of the parking clerk requested that the respondent provide a letter signed by the owner of the disability placard stating that the respondent was transporting her at the time of the violation. The respondent fabricated or caused to be fabricated at least two letters purporting to be from the disabled child. Both letters falsely claimed that the respondent was transporting the child to appointments at the time the tickets were issued. The respondent signed or caused the child’s name to be signed to the letters. The respondent submitted these letters to the office of the parking clerk.
The respondent’s use of the disability placard to seek dismissals of parking tickets violated Mass. R. Prof. C. Rule 3.3(a)(1¬) and (4) and 8.4 (c), and (h). His intentionally false statements to the office of the parking clerk to avoid paying parking tickets violated Mass. R. Prof. C. Rule 3.3(a)(1) and (4) and 8.4(d) and (h). His conduct in providing fabricated letters to the office of the parking clerk to avoid paying parking tickets violated Mass. R. Prof. C. Rule 3.3(a)(1) and (4) and 8.4 (a),(c),(d) and (h).
The respondent also had a relative who had a disability placard issued by the registry of motor vehicles in 1998, which was due to expire on April 9, 2003. The respondent’s relative died in 2002. On April 30, 2007, the respondent altered the expiration date and displayed this placard in his car at a metered space in Boston without paying the meter. The respondent’s conduct in altering the expiration date of the disability placard and displaying the altered placard in his motor vehicle to avoid paying parking fees violated 8.4(c), 8.4(d) and 8.4(h).
In aggravation, the respondent was previously publicly reprimanded in Matter of Corben, 21 Mass. Att’y Disc. R. 135 (2005).
The matter came before the Board of Bar Overseers on a stipulation of facts and rule violations and a joint recommendation for a suspension of one year and one day. The Board voted to accept the stipulation and joint recommendation, and, on December 30, 2009, the Supreme Judicial Court for Suffolk County (Botsford, J.), ordered that the respondent be suspended from the practice of law for one year and one day, effective in thirty days.
The case is Matter of Corben, January 29, 2010. (Mike Frisch)
What, Me Disbarred?
An Illinois hearing board has recommended the denial of a petition for reinstatement of an attorney who had consented to discipline in 1987. The attorney contested that the consent was to disbarment:
One of the most obvious indications that Petitioner does not recognize the seriousness of his actions is his refusal to even acknowledge that he was disbarred. As already noted, throughout most of these reinstatement proceedings, Petitioner has been insistent that he was not disbarred and has attempted to recast the circumstances under which his name was stricken from the roll of attorneys as the result from some voluntary action on his part. In his petition for reinstatement, he repeatedly characterized his prior discipline as a "transfer to inactive status" by agreement with the Administrator, rather than disbarment on consent. He continued to maintain this position throughout the course of these proceedings and during most of the hearing and even attacked the ARDC and its counsel for falsely stating that he had been disbarred. It was not until near the end of the hearing, when confronted with the fact that language in Rule 762 upon which he based this argument was not in existence in 1987, that he finally acknowledged that he had in fact been disbarred. Petitioner's ongoing denial of the serious nature of the discipline that was imposed as well as his attempt to reinvent the circumstances surrounding the loss of his license are clear indications that he has not yet faced up to his prior actions or accepted responsibility for his wrongdoing.
Throughout his remaining testimony at the hearing Petitioner also repeatedly failed to demonstrate that he understood or appreciated the nature of his actions. Petitioner specifically denied that he had engaged in almost all of the misconduct that was under investigation when he agreed to his disbarment on consent. He suggested that he agreed to take the drastic step of having his name stricken not because he had engaged in any serious wrongdoing, but simply because he was "out of gas" at the time due to various personal matters. The only real wrongdoing that he acknowledged was that he had "overreached" by taking on too much pro bono work on behalf of Christian organizations and may have neglected other clients as a result.
As already discussed, however, it is clear from the evidence presented at the hearing that the primary misconduct engaged in by Petitioner, which stemmed from his promotion of his 9051M Trust real estate investment scheme, involved far more than merely neglect or failure to communicate caused by overwork. Moreover, the overreaching he engaged in had nothing to do with him taking on too much pro bono work, but involved taking advantage of the position of trust he held in relationship to his clients by convincing them to invest in his real estate trust program. While Petitioner expressed regret that the real estate market had declined and his clients had lost money, he acknowledged no real wrongdoing in connection with the way he operated this scheme. Nor did he demonstrate any understanding or appreciation for the numerous ethical and other concerns arising from this arrangement.
The hearing board thus concludes:
Petitioner engaged in very serious misconduct that was extensive and ongoing over the course of a number of years and resulted significant financial harm to numerous clients. He was mature and experienced at the time and there is no evidence of any mitigating factors. In these proceedings, he has failed to demonstrate that he recognizes, appreciates or even understands the nature of his prior misconduct and has not taken any real steps during the lengthy period since his disbarment to provide restitution to the many individuals who were harmed by his actions. Although he has been engaged in some charitable activity since his disbarment, his conduct overall has been far from exemplary and has included many troubling aspects. Moreover, he has not been completely candid during these proceedings regarding the nature of his prior discipline and has failed to sufficiently establish his present good character and current knowledge of the law.
Hat tip to Mad Magazine for the title to the post. (Mike Frisch)
American Bar Foundation: Call for Visitors, 2010-11
[Posted by Bill Henderson]
The American Bar Foundation invites scholars to join the intellectual community of the ABF for the 2010-2011 academic year (8/31/10 to 6/30/11).
For visitors, the ABF offers an office, phone, and computer but no stipend. The ABF encourages national and international scholars on leave or sabbatical to take advantage of the ABF's diverse intellectual community and excellent facilities.
Preference will be given to visitors whose scholarship coincides with the research agenda of the ABF and who will be in residence fulltime. Visitors will participate in the intellectual life of the ABF, including participation in seminars.
If you have an interest in this opportunity, please send an email to Robert Nelson at email@example.com, subject line: Visiting Scholars Program, which states (1) the topic on which you are working, (2) the preferred dates for residence, and (3) the days each week you would expect to be at the ABF, (4) attach a CV. Applications should be received by April 1, 2010 though later applications will be considered as space allows. The ABF Appointments Committee will review applications and prospective visitors will be notified in late Spring 2010.
An Arizona Hearing Officer has recommended a public censure with probation for one year of an attorney who represented a client being sued for fees by the client's former attorney. A hearing was scheduled on the collection proceeding after the first attorney obtained a default judgment. The accused attorney filed a pleading seeking a continuance on grounds that she had to fly to Portland for the funeral of her uncle. In fact, the conflict involved an emergengy appointment that the attorney had scheduled for her father to discuss health care for a "gravely ill third-party family member."
The agreement for discipline between the parties, accepted by the hearing officer, stipulated that the falsehood was material to the decision on the continuance request. The attorney was motivated by the desire to protect the privacy of the sick family member. (Mike Frisch)
Ohio May Change Unauthorized Practice Rules
The Ohio Supreme Court has asked for public comment on proposed revisions to its rules governing unauthorized practice. The court's web page summarizes the proposals:
Under changes proposed to the Supreme Court of Ohio Rule governing the Unauthorized Practice of Law (UPL), the Ohio Attorney General would be authorized to investigate and prosecute certain complex UPL cases. The Supreme Court will accept public comment until April 13 on the proposed amendments. Justices concurred 7-0 in publishing the amendments for public comment.
If amended, Section 2 of Rule VII of the Rules for the Government of the Bar of Ohio would provide caseload assistance for the volunteer attorneys who investigate and prosecute UPL cases on behalf of bar associations, according to Michelle Hall, Attorney Services Counsel at the Supreme Court. She anticipated that if the Court adopts the proposed amendments, the Attorney General’s Office would prosecute one or two complex UPL cases annually. The current rule only authorizes Disciplinary Counsel and bar associations with UPL committees to initiate UPL cases.
Other proposed changes to Rule VII include:
- Adding a second non-attorney commissioner to the UPL board
- Authorizing the annual election of a chair and vice chair of the UPL board
- Refining the procedure for requesting a consent decree or settlement agreement
- Revising the definition of UPL
- Making non-substantive changes to conform with the Court’s Rule Drafting Manual
The proposed amendments also call for one change to Gov.Bar R. VI (Registration of Attorneys) since the revised definition of UPL would identify the Board of Commissioners on Grievances & Discipline as the proper venue for UPL complaints against suspended attorneys. (Gov.Bar R. VI currently says a suspended attorney may be referred for investigation to the UPL board.)
"I Have It On My Resume"
The Maryland Court of Appeals reaffirmed its intolerant attitude toward conduct involving serious dishonesty in a reciprocal discipline matter from Texas.
The attorney had been issued a judgment of public reprimand for litigation misconduct that involved a document attached to a motion to supplement the summary judgment record. The document appeared to have an original signature page from 2000. The document had been signed the night before the summary judgment hearing in 2005. The date was a material issue in the case. Six weeks later, the attorney disclosed this to opposing counsel in a discovery response.
The court noted here that "we are prone, but not required, to impose the same sanction as the original jurisdiction imposed." Here, the misrepresentations to a court were deemed "exceptional circumstances" that warranted a suspension. The court imposed a 45 day suspension, using as the closest comparison a case (Attorney Grievance Comm'n v. Rohrback, 591 A.2d 488) that I taught to my American Legal Profession class last night.
Chief Judge Bell dissented and would impose the same sanction as that in Texas.
Both majority and dissenting opinions note that the attorney has never practiced in Maryland. He was a federal employee when admitted in Maryland and moved to Texas several years later. When asked at oral argument why he maintained his Maryland Bar membership, he stated:
In all due respect, I kept my Maryland Bar membership, [because] it wasn't expensive to keep up. The CLE requirements are far more significant in Texas, and, I mean, that's the honest [truth] why I kept it. I have it on my resume.
March 15, 2010
Posted by Jeff Lipshaw
Though the three days of monsoon-like rain and wind we've endured here in the East could be worse (it could have been snow), I thought this, which I snapped with my iPhone just across Tremont Street from the Suffolk University Law School, symbolized utter futility, resignation, and despair: