Saturday, March 27, 2010

Over Employed

In a time where legal work is hard to find, an attorney in Colorado was found to have engaged in dishonesty and fraud by working at two law firms (he was a partner in one of the firms) at the same time without disclosing the conduct to either firm. He made misrepresentations to partners at both firms. The attorney also had transferred cases to the second firm and written off time at the first firm.

The Colorado Presiding Disciplinary Judge accepted a conditional admission of misconduct and ordered a three-year suspension with all but a year and a day suspended, followed by two-years of probation. (Mike Frisch)

March 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Email Breaches Duty Of Confidentiality

A Wyoming attorney who was practicing before the Colorado courts was suspended for a year and a day in Colorado. The attorney was charged with ethics violations after she undertook a divorce case. When informed that the client no longer wanted her services, the attorney sent an email to opposing counsel that made false accusations that the client had committed perjury, judge tampering, staged a 911 call and was engaged in a criminal enterprise for profit.The email also disclosed confidential information relating to the representation.

The Presiding Disciplinary Judge concluded that the attorney had violated the duty of confidentiality by sending the email. The attorney had charged the client $250 per hour, which was "far beyond an appropriate rate" given her lack of experience in divorce matters and thus excessive.

The attorney did not participate in the disciplinary case. (Mike Frisch)

March 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 26, 2010

No Wasted Resources

The Indiana Supreme Court has accepted a conditional agreement resolving charges against an elected judge who employed his spouse as the city court clerk. The judge was charged with five felony theft counts "stemming from allegations that Respondent exerted unauthorized control over infraction ticket payments, payments to resolve failures to appear and to restore drivers' licenses, and funds held in the...Court's bank account." He was suspended by the court the day after charges were filed and remains suspended.

The court found that "further prosecution of this matter is unnecessary." As the most severe sanction would likely be removal from office and a ban on future judical service, the charges were dismissed without prejudice if he fails to follow the terms of agreement that include the immediate tender of a letter of resignation to the Governor: "Because Respondent has agreed to such terms, continuation of this proceeding would be a waste of limited judicial resources." (MIke Frisch)

March 26, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Emory Transactional Education Conference – Registration Open

Tina Stark passes along the news that the web site for Emory Law's conference - Transactional Education:  What’s Next?  - is open for registration.

Registration

The registration fee for the conference is $179.00. It includes a pre-conference lunch, snacks, and the reception on June 4 and breakfast, lunch, and snacks on June 5.   An optional dinner for attendees on Friday evening, June 4, is an additional $40.00.  Attendees are responsible for their own hotel accommodations and travel arrangements.

After you register, you will be asked to complete a short survey about transactional courses at your school.  The results of the survey will be available at the Conference.

Registration closes May 25, 2010.

To register, please click here.

Hotel

Special hotel rates for conference participants are available at the Emory Conference Center Hotel less than one mile from the conference site at Emory Law. Subject to availability, rates are $129 per night. Free transportation will be provided between the Emory Conference Center Hotel and Emory Law. To make a reservation, call the Emory Conference Center Hotel at 800.933.6679 and use Group ID Number 20006017399 to obtain the special conference rate.

Learn more about the Emory Conference Center Hotel by visiting its website.

[Jeff Lipshaw]

March 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Reflection Time

An Illinois Hearing Board has recommended a 15-month suspension of an attorney who had aided the unauthorized practice a longtime friend who had been disbarred. the attorney also made false statements about his conduct in the ensuing bar discipline case. As to the aiding unauthorized practice charge, the following facts were admitted: 

On January 12, 2007, the Illinois Supreme Court issued its mandate disbarring attorney Marc Erwin Levine. Thereafter, pursuant to Supreme Court Rule 764(b), Levine was prohibited from engaging in the practice of law, holding himself out as an attorney authorized to practice law in the State of Illinois, or maintaining a presence in or occupying an office where the practice of law was conducted.

Between about 2001 and 2004, Respondent and Levine were partners in the practice of law and thereafter remained close personal friends. Respondent was informed of Levine’s disbarment shortly after the mandate was issued by the Court.

After January 12, 2007, the date of Levine's disbarment, Levine engaged in the unauthorized practice of law. After January 12, 2007, Respondent permitted Levine to practice law out of Respondent's law office by allowing Levine to use his office equipment and by allowing Levine to receive mail and telephone calls at Respondent’s law office. Levine used office equipment made available to him by Respondent and drafted documents using Respondent's name and other information to hold himself out as an attorney to buyers or sellers in connection with seventeen real estate transactions.

Levine's conduct violated Supreme Court Rule 764(b) and constituted the unauthorized practice of law in violation of the Court's mandate. During the time Respondent permitted Levine to receive mail at his office and to use his law office and office equipment, including his business telephone and facsimile machine, he knew Levine was disbarred, knew Levine was prohibited by Supreme Court Rule from maintaining a presence in or occupying an office where the practice of law is conducted, and knew Levine was engaging in the unauthorized practice of law. (references to exhibits omitted)

As to sanction:

The Supreme Court has emphasized the serious nature of an attorney providing false information to, or failing to cooperate with, the ARDC. In In re Bell, 147 Ill. 2d 15, 39, 588 N.E.2d 1093, 1104 (1992), where the attorney gave a false written response to the Administrator and then repeated the false response in his sworn statement before the Administrator, the Court stated "the giving of false testimony demonstrates a further unfitness of an attorney to practice law."

After considering the nature of Respondent's misconduct, the purpose of the disciplinary proceedings, and the cases discussed above, we conclude a two year suspension would be longer than that imposed by the Court in comparable situations. On the other hand, something more than a short suspension is warranted by Respondent’s dishonest conduct. We believe a suspension of fifteen months will allow Respondent sufficient time to reflect upon his behavior, and will protect the public and the integrity of the legal profession. Accordingly, we recommend Respondent...be suspended from the practice of law for a period of fifteen months.

(Mike Frisch)

 

March 25, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Unable To Properly Manage His Busy Law Practice"

The Supreme Judicial Court of Maine ordered a six-month stayed suspension with conditions and stated that any failure to adhere to the conditions may be treated as contempt "and further post-judgment proceedings."

The attorney was admitted in December 2003 and "has primarily worked as a solo practicioner with a concentration on criminal defense and family law. In the course of this proceeding, it has become apparent to the Court that [he] proved unable to properly manage his busy law office." The court previously ordered him to restrict his practice to criminal matters and be monitored by another lawyer. After that order, there have been further client complaints, although there were two bar referrals from a District Attorney's office. Those matters were resolved.

The court here continued the "criminal law only" restriction and required approval of his undertaking employment outside his practice by his monitor and the bar's assistance program director. He must also participate in the bar's program. (Mike Frisch)

March 25, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

New IOLTA Rules In D.C.

The web page of the District of Columbia Bar reports this rule change:

The District of Columbia Court of Appeals has adopted amendments to the rules governing the Interest on Lawyers’ Trust Accounts recommended by the D.C. Bar Board of Governors.

The amendments, which go into effect on August 1, make participation in the IOLTA program mandatory for D.C. Bar members who receive IOLTA-eligible funds, except when a lawyer is otherwise compliant with the contrary mandates of a tribunal, or when the lawyer is participating in and compliant with trust accounting rules and the IOLTA program of the jurisdiction where the lawyer is licensed and principally practices.

The court also adopted interest rate comparability provisions for banking institutions in which Bar members are permitted to hold client funds.

The revisions amend Rule 1.15 of the D.C. Rules of Professional Conduct and delete Rule 1.19 and Appendix B to the rules. Some provisions of former Rule 1.19 and Appendix B were moved to Rule 1.15 and to a new Section 20 to Rule XI of the D.C. Court of Appeals Rules Governing the District of Columbia Bar.

The revised rules are intended to boost funds distributed by the D.C. Bar Foundation to local legal service providers by increasing revenue from D.C. IOLTA and interest paid by banks on funds held in these accounts. The revisions also provide greater clarity to the trust account ethics rules.

A proposal addressing monitoring of D.C. Bar members’ participation in the IOLTA program by the Bar Foundation was not forwarded to the court but reserved for further study by the D.C. Bar Regulations/Rules/Board Procedures Committee.

The Board of Governors sent its recommendations to the court in September 2009, and the court published the recommendations for a public comment period. The recommendations were based on the work of the Bar Foundation and the Bar’s Rules of Professional Conduct Review Committee that began in 2006.

For more information on the revised rules, contact legal ethics counsel Hope C. Todd at 202-737-4700, ext. 3231, or Saul Singer at 202-737-4700, ext. 3232, or by e-mail at ethics@dcbar.org. For information on how to set up an IOLTA, visit www.dcbarfoundation.org.

(Mike Frisch)

March 24, 2010 in Bar Discipline & Process, Clients, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

13 Year Old Climbing Everest? More Than Just Bad Parental Judgment?

Posted by Jeff Lipshaw

In the gym today, I was reading an article in Outside that reminds me of a Law & Order plot's back story.  I don't know anything about family law, but I do write about judgment, and while I'm generally loathe to second-guess reasonable ones, and have a fairly strong libertarian streak, this one seems to call out for - well, if not the Department of Social Services, then maybe some friends' intervention?  If that's possible.

Images The story is about 13 year old Jordan Romero, who with his somewhat wacko sounding father, and his father's more grounded sounding partner, has climbed five of the Seven Summits - the highest peaks on each continent - and is planning an Everest expedition this May from the Tibet side, and without professional guides.  (Some of the exchanges with the kid and his parents reminded me of that L&O episode with the totally dominating father who controls everybody in the family.)  As far as I could tell, not a single mountaineering professional thought this was a good idea - but it sounds like "hockey parents" gone mad.  (I may be influenced by the fact that I am not a climber but I am a climbing story aficionado, likely brought on by the fact that one of my former law partners, Lou Kasischke, was a participant and minor character in the tragic 1996 Everest climb that Jon Krakauer wrote about in Into Thin Air.)

I don't know diddly about family law, or how the state goes about protecting children from really dumb parents, so I don't know how much leeway is given, or whether this is even controversial from a legal standpoint.  I invite comments.  But I'm willing to take a stand and say, even if the young man returns safely, this is really stupid!  If he wants to climb Everest when he's 21, more power to him!  But there is no reason that a child needs to be doing this, and you can't persuade me that he's made the decision to do it as a knowing and consenting adult.

March 24, 2010 in Hot Topics | Permalink | Comments (4) | TrackBack (0)

Village People

The New York State Commission on Judicial Conduct has admonished a village court justice (who is an attorney) for delayiing the disposition of a large number of traffic matters for the convenience of police officers and the financial benefit of the town:

From 2003 to 2008, as an Ossining Village Court Justice, respondent maintained a policy of scheduling trials based solely on the availability of the individual issuing police officers for the expediency of the Ossining Police Department and for the financial benefit of the Village of Ossining. As a result, respondent failed to efficiently and promptly schedule and reschedule trials in more than 500 traffic matters, and these matters languished without resolution in his court for as long as five years and five months.

(Mike Frisch)

March 24, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Center on the Profession at Akron Law Features Adam Liptak on April 6

Posted by Alan Childress

Kicking off some of the great legal profession and ethics work now being done at the new U. Akron Joseph G. Miller and William C. Becker Center for Professional Responsibility is their inaugural offering in the Distinguished Lecturer Series on Journalism and the Law.  And it is none other than Adam Liptak of the NYTimes [right] so you know it will Adam_Liptak be interesting; his topic is Covering the Roberts Court in the Obama Era: A Reporter's ReflectionsI suspect we may hear about the Chief's fairly public complaint of feeling ambushed-ish at the State of the Union -- and on Justice Scalia's Not True heard round the world (and yes he does think it is round), for which I am grateful he did not take the oratorical lead from our Vice President yesterday in mouthing those words. Details from the center's website:

"April 6, 2010 at 4 p.m. Free and open to the public, however registration is required. One hour of free CLE credit will be offered."

More on the new Miller-Becker Center here.   Thanks, U of Akron, and well done.

Also coming April 23 is Ohio State's Nancy Rogers.  {oops--edited to note that she came last year and this is not 2009! If either Miller or Becker has invented a time machine, they are wasting it on transporting Nancy Rogers, as good as she is.  I am just saying.}

March 24, 2010 in CLE, Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

Complainant Incredible, Lawyer Reprimanded

The Wisconsin Supreme Court imposed a public reprimand of an attorney in connection with his handling of a probate matter. the attorney had previosly been disciplined for a conflict of interest. A referee had sustained chargers that the attorney had violated rules governing fees by charging a percentage of the gross estate contrary to statutory provisions. The attorney had also allowed an employee to notarize a document outside of the presence of the affiant.

Charges predicted on the complainant's credibility were rejected:

The referee commented at length about the credibility of the various witnesses who testified at the hearing.  The referee found that [the complainant] A.W. "was argumentative and often nonresponsive, especially on cross-examination.  . . .  She attempted to parse words . . . when it suited her.  She did run on answers.  She basically tried to take control of the questioning when she was on the stand."  The referee said during her testimony A.W. repeatedly denied the obvious, gave opinions she was not qualified to give, and frequently made overstatements of fact.  The referee noted that A.W. waited for six years before filing a grievance with the OLR.  When asked about the delay, A.W. said she had spent 700 hours working on the second estate and that she had been injured and laid up for a year and a half or two years.  The referee said, "I found her reasons to be entirely unconvincing."

The referee said although A.W. continually denied she had hired [the] Attorney['s] firm for the probate, exhibits admitted into evidence clearly indicated that she did in fact hire the law firm for probate.  While A.W. denied receiving [the] Attorney['s] March 6, 2000, letter, the referee found she did not receive the letter because she deliberately avoided picking it up.  The referee summed up A.W.'s testimony by saying, "She basically accuses everybody else, at the best, of being wrong, and at the most of lying.  Therefore, unless her testimony was corroborated by some other witness, I gave it absolutely no weight whatsoever."

(Mike Frisch)

March 24, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Relief For "Substantial And Concerning Judicial Independence Issues"

The South Carolina Supreme Court dismissed an appeal brought by a family court judge who has served "ably and with honor" since 1993 and has been re-elected to office for two successive six-year terms.

 In South Carolina, candidates for judicial office must be certified as fit for office by the Judicial Merit Selection Commission (the "JMSC") before the Legislature may consider their election. The "election and re-election of justices and judges...is vested solely in the South Carolina General Assembly."

When the judge applied for re-election (her term of office ends this June), her re-election was opposed by a "disgruntled family court litigant" who complained that the judge had failed to recuse herself from his case. As a result of the complaint, a majority of the JMSC "found [the judge] unqualified, therefore foreclosing the Legislature's consideration of her re-election bid." The judge filed an action that raised several challenges to the decision of the JMSC. Here the court concluded:

While the complaint of [the judge] raises substantial and concerning judicial independence issues, it is our firn judgment that the law provides her no relief.

The court dismissed the complaint:

The elephant in the room is judicial independence.  A central feature of Petitioner's case concerns judicial independence.  Echoing those same concerns, amici curiae briefs in support of Petitioner have been filed by the South Carolina Chapter of the American Academy of Matrimonial Lawyers and the League of Women Voters of South Carolina.  It is argued that the actions of the JMSC in finding Petitioner not qualified undermine the independence of the judiciary.  More to the point, we are reminded that it is a chilling threat to judicial independence for judges to approach decision making knowing that the difficult and sometimes unpopular decisions they must make will be resurrected in the re-election process through a political lens.

All but three states impose some sort of re-election process, from public elections, to retention elections, to reappointment by the executive or the legislature.  "Thus, in 47 states, incumbent judges know that their ability to keep their jobs depends on gaining the approval of others. This is hardly a scheme calculated to ensure that judges will apply the law. Reappointments and reelections are instituted precisely so that the incumbent judges do not stray too far from the preferences of the reappointing authorities. From an independence perspective, it makes no difference whether the re-selection is done by popular election or reappointment; in both cases judges are made answerable--accountable--for their decisions to an institution that is concerned with political results far more than with legal principle." Michael R. Dimino, Sr., Accountability Before the Fact, 22 Notre Dame J.L. Ethics & Pub. Pol'y 451 (2008).

Judicial independence is not for the protection of judges, although it is often thought of in that context today.  The principle of judicial independence is designed to protect our system of justice and the rule of law, and thus maintain public trust and confidence in the courts.  With judicial independence, the winners are everyone.   

We acknowledge the importance of judicial independence and our ethical mandate to uphold the integrity and independence of the judiciary...

We are left with Petitioner's stand-alone judicial independence claim.  Notwithstanding the undeniable significance of judicial independence, a judge's ethical duty to uphold judicial independence is not a grant of judicial power.  We may not under some thinly veiled guise of law assert judicial power to an action taken by another branch that lies within its exclusive constitutional authority.  The South Carolina Constitution expressly vests in the JMSC the sole determination of a judicial candidate's qualifications, and the General Assembly is constitutionally charged with the election and re-election of judges found qualified by the JMSC.  Absent an unconstitutional exercise of those powers, the Court may not intervene in these political determinations.  To judicially intervene in the purely political determination of the JMSC would itself violate separation of powers.

(Mike Frisch)

March 24, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Absence Of Profit No Impediment To Bar Sanction

A former Ernst & Young partner was disbarred by the New York Appellate Division for the First Judicial Department as a result of a criminal conviction:

On July 26, 2009, respondent, along with another person was charged in a 12-count indictment in the United States District Court for the Southern District of New York. The indictment alleged that between November 2005 and December 2007, respondent and another conspired to and did in fact commit securities fraud, namely insider trading. Specifically, it is alleged that respondent was a partner at Ernst and Young, LLP (E & Y), a professional services partnership providing assurance, tax, transaction and advisory services worldwide. While employed at E & Y, and by virtue of his position, respondent obtained non-public "Inside Information" regarding E & Y's clients' upcoming "business combination transactions," which he then unlawfully conveyed to another, who then, based on the information, bought securities, thereby deriving a profit. Specifically, respondent was charged with one count of conspiracy to commit securities fraud, in violation of 18 USC § 371, § 78j(b), § 78ff, 17 CFR § 240.10b-5 and § 240.10b5-2, a felony, and eleven counts of securities fraud in violation of 15 USC § 78j(b), § 78ff, 17 CFR § 240.10b-5 and § 240.10b5-2, also a felony. On May 15, 2009, following a jury trial, respondent was convicted of six counts of securities fraud.

The Departmental Disciplinary Committee (Committee) now petitions this Court for an order pursuant to Judiciary Law § 90(4)(b) striking respondent's name from the roll of attorneys on grounds that respondent's conviction for securities fraud, in violation of 15 USC § 78j(b) and § 78ff triggered respondent's automatic disbarment pursuant to Judiciary Law § 90(4)(a) and § 90(4)(e) inasmuch as securities fraud is a federal felony and is essentially similar to New York General Business Law § 352-c(5) and (6), which proscribe and criminalizes fraud in the sale of securities in this state, E felonies. We agree.

An attorney convicted of a felony as defined by Judiciary Law § 90(4)(e), is automatically disbarred (Judiciary Law § 90[4][a]). A felony is defined as any criminal offense deemed a felony under the laws of this State or any criminal offense committed elsewhere, classified as a felony where committed and which if committed in this State would constitute a felony (Judiciary Law § 90[4][e]). For purposes of this determination a felony committed in another jurisdiction need not be a mirror image of its New York State analog and need not correspond in every detail, instead must bear only an essential similarity. Thus, a conviction of a federal felony does not trigger automatic disbarment unless the offense would also constitute a felony under New York law.

We have repeatedly held that the federal statute proscribing securities fraud, as defined by 15 USC § 78j(b) and § 78ff is essentially similar to this State's statute, GBL § 352-c(5) and (6), which proscribe fraud in the sale of securities. Thus, a conviction pursuant to 15 USC § 78j and § 78ff, triggers automatic disbarment pursuant to Judiciary Law § 90(4)(a) and (e) (id.). We note that this is especially true, where as here, the conviction results from a violation 15 USC § 78j(b) and § 78ff by virtue of violating 17 CFR § 240.10b-5, the federal insider trading statute.

While upon a review of the indictment it is unclear whether respondent profited from the conduct giving rise to his federal conviction, the absence of profit, does not preclude a finding that respondent violated GBL § 352-c(5) and (6), since in this context it is enough that respondent, as alleged in the Indictment, engaged in "acts which constitute intent to defraud," for which he was convicted. (citations omitted)

(Mike Frisch)

March 23, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Sanctioned For Violation Of Organization Client Rule

The web page of the Virginia State Bar reports:

On March 11, 2010, the Virginia State Bar Disciplinary Board issued a public reprimand to [an attorney] for violating disciplinary rules that govern an organization as a client. The case involved his failure to keep members of a board of directors informed about actions that were taken by a corporation and pertained to the directors' interests. This was an agreed disposition of misconduct charges.

We will link to the disposition when it is posted. (Mike Frisch)

March 23, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Limits Of Liens

The State of Washington Court of Appeals held that a trial court was not authorized to reduce an attorney lien to an independant judgment and reversed the foreclosure of the lien. The attorney had represented the client in a postdissolution proceeding and claimed fees of almost $5,000.00. A notice of claim of lien was filed under the number of the underlying case. The trial court entered judgment in favor of the attorney.

The court here held that statutory summary adjudication procedures are limited to liens asserted against money or papers of the client and "do not apply to attorney liens on judgments." The attorney "never identified any judgment to which an attorney lien could lawfully attach." (Mike Frisch)

March 23, 2010 | Permalink | Comments (0) | TrackBack (0)