April 9, 2010
"Case-Within-A-Case" Doctrine Applied To Legal Malpractice Actions
The Maryland Court of Appeals has held that the "trial-within-a-trial" doctrine is appropriate in legal malpractice actions where the underlying matter has already been litigated." Further, the law firm/defendant "is not limited to the defenses actually raised by his client's opponents, but rather, may only assert those claims or defenses that the trier of fact determines the opposition would have raised if there had been no breach of the attorney's duty."
In the underlying case, the law firm had failed to seek an extension to elect the client/widow's statutory share of her late husband's estate. A court refused to permit the statutory election and the client suffered a financial loss of thousands of dollars. The law firm contended that there was no liability because the court had erroneously granted an earlier pro se extension motion. The law firm argued, and the court here agreed, that the doctrine requires the tribunal dealing with the legal malpractice claim to retry the matter "as if the attorney had never breached his duty to determine what would be the likely result." (Mike Frisch)
Misuse Of Client Information Leads to Conviction, Disbarment
A summary of a disciplinary case from the web page of the Massachusetts Board of Bar Overseers:
The respondent was convicted by a jury on March 5, 2008, in the 22nd Judicial Circuit Court of Michigan of three counts of the crime of stealing, retaining, or using a financial transaction device without consent in violation of Michigan Penal Code 750.157(n). The facts at the trial established that the respondent obtained the personal checking account number of his clients, which he, without their knowledge or consent, retained and disclosed to three service providers to secure services for his personal benefit.
Stealing, retaining or using a financial transaction device without consent is deemed a felony in the state of Michigan and includes as necessary elements theft and deceit. The respondent was convicted of a “serious crime” as defined by S.J.C. Rule 4:01, §12(3).
On March 31, 2008, the respondent was temporarily suspended from the practice of law. Matter of Azzam, 24 Mass. Att’y Disc. R. 19 (2008). On September 17, 2009, the Michigan Court of Appeals affirmed the respondent’s convictions. Michigan v. Azzam, 2009 WL 2974815 (Mich. App.). On November 10, 2009, the respondent submitted an affidavit of resignation pursuant to S.J.C. Rule 4:01, §15, to the Board of Bar Overseers in which he admitted to the convictions and that his conduct violated Mass. R. Prof. C. 1.6 (a), 1.8(b), 8.4(b), and (c). Bar counsel recommended that the affidavit of resignation be accepted and a judgment of disbarment enter effective retroactive to the date of the respondent’s compliance with the order of temporary suspension.
On December 14, 2009, the Board voted to accept the respondent’s resignation and recommend his disbarment retroactive to April 3, 2008. On December 22, 2009, the Board filed an information and its recommendation with the Supreme Judicial Court for Suffolk County. On January 7, 2010, a single justice of the county court, Botsford, J., entered a judgment of disbarment effective April 3, 2008.
The order of disbarment was entered on January 10, 2010. (Mike Frisch)
April 8, 2010
Elvis Impersonations Draws Reprimand
A stipulated reprimand was administered to two Illinois attorneys for their behavior after a court proceeding had adjourned. The Hearing Board described the agreed facts:
On February 5, 2007 and February 9, 2007, the Honorable David Delgado conducted a hearing in case number 06 D 4687 to determine whether Douglas should be held in civil contempt for violating a court order.
On February 9, 2007, after Judge Delgado adjourned the proceedings in case number 06 D 4687 and left the bench, Respondent[s], [their client] Evelyn, [opposing party] Douglas, and his attorney...continued to have discussions about the case.
During the course of the discussions with Douglas, Respondent[s]...made inappropriate and unprofessional references to what they believed would be Douglas’ experience should he be sent to jail, including references to body searches that he would or would not endure and the song "Jail House Rock".
At the time Respondent[s]...made the statements...they knew that the statements served no substantial purpose other than to harass or embarrass Douglas. Respondent[s]...acknowledge that their comments were inappropriate and unprofessional.
Respondent[s]...conduct in making statements to Douglas was inconsistent with Rule 1.2(f)(1), Rule 4.4, and Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770 by defeating the administration of justice.
Hold The Phone
The New York Appellate Division for the First Judicial Department reversed an order directing that a deposition of a representative of Verizon be conducted in California:
Respondent, a publicly traded corporation, with over 600 employees, has failed to meet its burden of demonstrating that appearing in New York City for deposition would cause it substantial hardship...Respondent merely asserts, without more, that its chief executive officer, who respondent acknowledges travels throughout the world almost six months out of the year, will be unable to be deposed in New York. Nor has respondent proffered any reason why none of its other 600 plus employees are appropriate witnesses. (citations omitted)
Death Be Not Disclosed
The Minnesota Supreme Court has imposed an indefinite suspension with no right to apply for reinstatement for at least 12 months in a case where the attorney failed to advise opposing counsel that his client had died prior to reaching a settlement of the client's claim. Ironically, the underlying case involved a claimed violation of the Fair Credit Reporting Act in that a credit agency reported that the client was dead. The client died during settlement negotiations. Three weeks later, the attorney accepted the credit agency's settlement offer of $19,000.00.
The settlement agreement was signed and executed by the client's wife as personal representative of the estate. The defendant noticed and inquired if the client had passed away. The attorney replied that the client had died ("Yes-how ironic"), the first disclosure of that pertinent fact. The credit agency indicated that it was not bound by the settlement. The attorney's local counsel filed an action to enforce the agreement that led to a $7,500.00 payment to the widow.
A bar complaint was filed. The attorney falsely responded about when he learned of the client's death in his testimony in the bar case. The attorney was no stranger to bar discipline, having racked up seven prior sanctions since his 1994 admission. (Mike Frisch)
Neither Doctor Or Lawyer
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today indefinitely suspended the license of [a] Youngstown attorney...based on conduct that resulted in his convictions on 98 felony counts that included aggravated trafficking in drugs, illegal processing of drug documents and practicing medicine or surgery without a certificate. Those offenses were committed in the course of [his] employment as a “medical assistant” at a Youngstown medical practice identified as Pain Management Associates.
[The attorney], whose law license has been under an interim suspension since his felony convictions were reported to the Court in October 2005, had been a licensed chiropractor for 20 years prior to his admission as an attorney in 1993. He graduated from a foreign medical school in 1998, but did not complete the United States Medical Licensing Examinations, and therefore was never licensed as a physician.
In its 7-0 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that in writing hundreds of prescriptions for pain medications on a doctor’s pre-signed blank prescription pad for customers of Pain Management Associates, Theisler violated the state attorney discipline rules that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct that adversely reflects on an attorney’s fitness to practice law.
In imposing an indefinite suspension as the appropriate sanction for those violations, the Court adopted the board’s recommendation that [he] receive no credit for the time his license has been under an interim suspension. As a result, [he] will not be eligible to apply for reinstatement of his license until April 2012.
The court's decision is linked here. (Mike Frisch)
Former Judge Disbarred On ConsentThe Delaware Supreme Court has accepted the consent disbarment of a former judge. According to this report in DelMarVaNow.com, the former court of common pleas judge had admitted to the sexual abuse of an 11 year old child over 30 years ago. The report notes that the conduct also had resulted in a civil settlement. (Mike Frisch)
April 7, 2010
Former Bar General Counsel Sanctioned
The Oklahoma Supreme Court has issued a public reprimand of the former general counsel to the Oklahoma State Bar. while serving as general counsel, the attorney was involved in an incident that led to a Alford plea to a charge of sexual battery and later reduced to the misdemeanor offense of outraging public decency. The court rejected lesser discipline:
Membership in the Bar is a privilege burdened with conditions. A fair private and professional character is one of those conditions. Compliance with that condition is essential at the moment of admission and it is equally essential afterwards. State ex rel Oklahoma Bar Ass'n v. Bradley, 1987 OK 78, 746 P.2d 1130. In lawyer discipline matters this Court seeks to preserve the confidence of the public and the legal profession. Here, the Respondent's job as general counsel for the Oklahoma Bar Association was to preserve the confidence of the public in the legal profession by prosecuting those who violated the standards of the profession.
We are not persuaded that a private reprimand is the appropriate discipline to be imposed here. We find that the Bar has established by clear and convincing evidence that the Respondent's conduct violated Rule 1.3, RGDP, and that public censure is the appropriate discipline to be imposed. The Respondent committed acts of a sexual nature that previously have been condemned by this Court as in violations of the Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. See State ex rel. Oklahoma Bar Ass'n v. Foster, 2000 OK 4, 995 P.2d 1138, 1140. In State ex rel. Oklahoma Bar Ass'n v. Wilburn, 2006 OK 50 ¶13, 142 P.3d 420, 424, we stated that a public reprimand served to advise other members of the Bar that inappropriate touching and sexually suggestive gestures and remarks will not be tolerated, regardless of whether they seem harmless, solicited or consensual. The objectives of this Court in disciplining lawyers who have admitted inappropriate sexual contact would not be met by imposing discipline of private reprimand in this case. The public and other members of the Oklahoma Bar Association are advised that this Court will not tolerate such conduct by members of the Bar.
Justice Taylor would impose a suspension.
As far as I am aware, this is the first time that a chief disciplinary counsel has been sanctioned for an ethics violation that took place while serving in that capacity.
Details concerning the underlying allegations from the The Lost Ogle.com, with links to related news articles, may be found here. (Mike Frisch)
The Reasonable Penitent
The New Jersey Supreme Court has reversed a decision of the Appellate Division holding that discussions between a person later charged with sexual assault and a Pastor that he had known for over thirty years were not protected by the cleric-penitent privilege. Applying a standard of "objective reasonableness", the court concluded that the communications were privileged.
The defendant's wife had told the Pastor that the defendant had abused his two daughters. The wife and daughters were members of the Pastor's church; the defendant was not. The Pastor met the defendant and they took a walk to a public play area to talk. When the defendant tried to blame his wife, the Pastor said "if it was [i]n the days of the law of the bible...I'd kill you myself because I think what you've done is deserving of death." The defendant did not directly admit the allegations but sought the Pastor's help and to be baptized, which the Pastor declined.
The trial court declined to admit the evidence but the Appellate Division reversed. Here, the court concludes that "a reasonable penitent could have concluded that [the Pastor] was serving in a [spiritual adviser] capacity." By the Pastor's invoking biblical law and hearing a plea for help, the privilege came into being.
Justice Rivera-Soto dissented: "...the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege's clear tradition, and ignores the statutory mandate." (Mike Frisch)
Confidentiality Violation Charges In North Carolina
The North Carolina State Bar has filed a complaint alleging that an attorney researched a possible claim on behalf of a client who he represented in a patent infringement suit. The possible claim involved the deceptive use of a name or patent number in order to induce a public belief that a product is covered by a patent when it is not.
According to the complaint, "[the attorney] chose to reserve the research and the information...for a possible future claim against [the opposing party in the patent infringement suit]." The attorney then joined another firm and, it is alleged, used the research and confidential information that he had learned from the earlier case without permission of the client. The complaint charges violations of the duty of confidentialty and the duties owed to a former client.
The accused attorney's pro se answer admits certain facts but denies any ethical violations. The answer also contends, among other things, that the State Bar lacks subject matter jurisdiction (why and how is not explained), that the doctrine of laches bars the complaint, and that the confidentiality rule is "constitutionally overbroad."
Is it unethical to develop a legal theory while representing one client that is withheld and later used to benefit a second client in an unrelated matter? I see a tough road for the State Bar here unless there is smoking gun evidence of bad faith on the part of the accused attorney. (Mike Frisch)
April 6, 2010
Kazakhstan Law School Seeks Dean
Posted by Jeff Lipshaw
The School of Law of the Kazakhstan Institute of Management, Economics, and Strategic Research in Almaty, the major commercial center of Kazakhstan, is looking for a dean. Here's the job description (from AcademicKeys.com):
We like to be a full service blog, so if you are interested, here's a link to the Cores real estate agency in Almaty, if you might be looking to rent. If you'd be looking to buy, we suggest Almaty Real Estate. And here's Air Astana, the national airline of Kazakhstan.
The Kazakhstan Institute of Management, Economics and Strategic Research (KIMEP) is a rapidly growing, dynamic higher education institution, offering American style, credit-based programs in business administration, social sciences and international law. KIMEP is located in Almaty, an attractive and cosmopolitan city, with 1.2 million residents, located in the foothills of the Tian Shan mountain range. The Institute currently enrolls about 4,300 students in degree programs. All degree programs are taught in English.
Currently, the Law Program is housed in the Bang College of Business, offering an LLM, a minor in Law and undergraduate courses. The creation of an independent Law School is being planned, with both undergraduate and expanded graduate programs.
The Dean of SL is the School's administrative and academic head. Reporting to the Vice-President of Academic Affairs (VPAA), the Dean will exercise vision, ethical leadership and advocacy in curriculum matters of the School, placing emphasis on quality assurance and continuing development of the finest educational program possible. As key responsibilities and duties, the Dean of SL shall:
•Manage fiscal and personnel resources of the School and recruitment, evaluation and retention of well qualified faculty and staff;
•Curriculum planning and development;
•Promotion, publicity and student recruitment;
•Manage the School’s faculty, including hiring, promotion, arrangement of leaves, salary determination, assignment of academic and administrative duties and resolution of grievances and disciplinary problems;
•Prepare and submit the School's annual budget and other relevant reports;
•Serve as Chair of the School Academic Committee and facilitate the work of other School committees; •Serve as a member of the Deans’ Committee and KIMEP Executive Committee;
•Represent the School in KIMEP-wide events and to external constituencies;
•Teach one course (3 credits) in each of the Fall and Spring semesters; and,
•Other duties, as assigned by VPAA.
Qualifications: Doctoral degree in Jurisprudence/Law; a clear educational vision for an effective, rigorous, comprehensive Law program, following American models; administrative experience, preferably at Chair or Dean level, at an institution of higher education; experience in curriculum development and review; excellent negotiation, communication, organization and leadership skills; and, fluency in English.
Applications will be accepted until the position is filled. Salary is negotiable.
To apply, please send, via e-mail, a letter of interest, curriculum vitae and contact information, including e-mail addresses of three references, to: firstname.lastname@example.org
CLE Credit For Time Served
An en banc decision of the Mississippi Supreme Court is summarized on the court's web page:
Petition filed by the Mississippi Commission on Continuing Legal Education to Amend Rule 3 of the Rules and Regulations for Mandatory Continuing Legal Education is granted in part and denied in part. Members of the Supreme Court Advisory Committee on Rules, and the Mississippi Code of Judicial Conduct Study Committee are hereby awarded six (6) hours of CLE credit annually for service on these committees. The request that Rule 3 of the Rules and Regulations for Mandatory Continuing Legal Education be amended is denied. Order entered.
Maryland, My Maryland
The Louisiana Supreme Court denied admission to an applicant who originally sat for the July 2001 bar exam. The Committee on Bar Admissions was advised by the applicant's law school that "he had been disciplined for committing fraudulent acts in the course of his employment as a student research assistant." He was allowed to sit for the exam but did not pass.
He passed the February 2002 bar exam but moved the withdraw his application when an investigation by the Office of Disciplinary Counsel found evidence of unauthorized practice in assisting a lay person with legal analysis and pro se pleadings. The court allowed him to withdraw his application.
He again applied for admission in November 2009. The committee opposed the application and asserted that the applicant had engaged in unauthorized practice in Maryland (the applicant's last name is Maryland) by entering an appearance as counsel in a domestic matter. As a result, the Maryland Attorney Grievance Commission sought an injunction and a consent order was issued prohibiting further acts of unauthorized practice. (Mike Frisch)
An attorney who had withheld from his client a substantial portion of a lump sum workers' compensation settlement and converted the money for his own personal and business obligations was suspended for three years by the Louisiana Supreme Court. A hearing committee and the disciplinary board found that the attorney did not intend to permanently deprive the client of the proceeds. Although he had initially lied to the client, he refinanced his home and paid the client, who found out that the attorney had falsely advised him after he complained to the workers' compensation hearing officer.
The attorney admitted that he "made a bad choice" but "expressed remorse and contrition for his conduct and that he would not convert client funds to his own use in the future." His wife had just been diagnosed with uterine cancer and both he and his son were having shoulder problems, which could have affected the son's chances of getting a swimming scholarship.
Justice Knoll would disbar the attorney. So would I. (Mike Frisch)
Up The River
According to a news release issued today, the New York Commission on Judicial Conduct censured a non-lawyer town court justice who had retired from service as a state trooper as a result of injuries sustained in a high-speed chase of an now-incarcerated individual. The judge has a personal injury lawsuit against the inmate. The judge wrote the prison officials at Sing Sing Correctional Facility asking the officials to confiscate materials relating to the suit.
The judge had made repeated reference to his judicial office, which the commission concluded "can only be seen as an effort to influence the disposition of his personal requests" and showed "extremely poor judgment and insensitivity to his ethical obligations..." (Mike Frisch)
That's What Makes It A Horse Race
The West Virginia Supreme Court has affirmed a lower court's rejection of a claim that the state's "zero tolerance" drug policy for racing horses was unconstitutional:
We are persuaded by the Illinois court's reasoning. If we were to adopt the appellants' argument, it would result in endless litigation and debates concerning whether a particular horse was affected by a particular substance. In the end, the winner of a horse race would not be determined by the speed of the horses on the track, but by the dexterity of experts and lawyers in the courtroom.
In Morris, we found to be constitutional the Racing Commission's power to eliminate drugs in race horses “by any reasonable and adaptable method.” Morris, 133 W.Va. at 194, 55 S.E.2d at 271. We find that the Racing Commission's zero tolerance rule is a reasonable method of preventing horses from being raced when they have drugs in their system. We therefore find that 78 C.S.R. § 66.5 is rationally related to the reasonable regulation of horse racing, and is therefore constitutional.
April 5, 2010
Support For Immigration Clients "Fraught With Danger"
The District of Columbia Bar Legal Ethics Committee has recently opined on the practice by immigration attorneys of executing affidavits of support for their clients. The conclusion:
Lawyers in immigration matters may not execute an Affidavit of Support (U.S. Citizenship and Immigration Services Form I-864) on the immigrant’s behalf as a joint–sponsor while continuing to represent the immigrant in the matter. Typically, a person who signs an Affidavit of Support agrees to support the immigrant at an annual income that is not less than 125% of the federal poverty level so that the immigrant will not become a public charge. The ensuing contractual obligations continue for years after the immigrant is admitted on the basis of the Affidavit of Support. The Affidavit of Support is a guarantee of financial assistance to a client. Such guarantees are generally prohibited by Rule 1.8(d). Because the obligations continue long after the completion of the immigration proceeding, the undertaking does not fit within the narrow safe harbor of Rule 1.8(d)(2), which allows, but does not require, financial support strictly necessary to sustain the client during a proceeding. An Affidavit of Support undertaking by a lawyer to a client is also fraught with peril under Rule 1.7(b)(4) (conflicts of interest). Thus, a lawyer who wishes to serve as a joint sponsor for an immigration client by executing an Affidavit of Support on the immigrant’s behalf must withdraw from the representation of that client before doing so.
Plot To Maim, Murder Prosecutors Ends in ConvictionThe Rhode Island Supreme Court has affirmed the conviction of a defendant charged with soliciting the murder of the state Attorney General and the felonious assault of the Assistant Attorney General who was responsible for his prosecution. The defendant had solicited persons while incarcerated and awaiting trial for the "horrific murder" of his spouse in the presence of their children. Four individuals testified about the solicitation. One said the defendant wanted the Attorney General killed and the Assistant's legs broken; another sais the defendant wanted the Attorney General shot twice, once for each of his children who were to be called as witnesses against him. (Mike Frisch)
No Gifts For Judges
The Massachusetts Judical Ethics Committee has opined that a judge may not accept a monetary award in recognition of community service, even if the award is donated to charity. The facts:
...the program from which you will receive the monetary award "is an awards program that provides recognition and direct financial support to individuals of creativity, vision and leadership who work in community service in a particular area. . . . [and that] celebrates the builders of the community; the social entrepreneurs who often go unrecognized, but who make a vital contribution to our quality of life." The program "provides an opportunity to identify and support the best practices of community service" and one of its goals "is to be a highly visible mechanism for public recognition of excellence in community service." To that end, "[p]ress coverage of the awards presentation is encouraged." "[A] not-for-profit organization offering philanthropic design and management services to individuals, foundations and corporations" administers the program. (Emphasis omitted).
Possible recipients of the grant are nominated "by a group of `spotters,' individuals representing diverse parts of the community. They serve for a two-year period. During that time, the spotters agree to identify individuals who, by virtue of their leadership and service qualify for this award. The spotters serve on a voluntary basis." To be eligible, "[n]ominees must be engaged in some form of community service. They may work for a government agency or a community organization, or they can be doing volunteer work." Nominees cannot be "individuals who hold public office." Once the spotters make their nominations, "[a] small selection committee reviews the nominations and makes the final selection. [The administering organization's] staff conducts a complete review and reference check on all finalists. Selecting a group of fellows [i.e., award recipients] that represents the diversity of the community is a prime consideration."
The program honors six individuals each year, and each of those six fellows "receives a grant of $10,000 each year for three years." The donor funding the program "wishes to remain anonymous." The funds the fellows receive "are absolutely unrestricted. The recipients may use them to stabilize their personal finances, to take time off for special projects or a sabbatical. Some might choose to go back to school or obtain some skills training. Others might choose to use the funds as social venture capital to seed new projects. Recipients will not be required to continue in their present work." Additionally, "[n]o reports will be required of recipients on their activities. Other than appearing at an initial presentation, they will not be required to work together or attend meetings. Fellows are invited to share their experiences and discuss their work over the course of the year, but participation is not mandatory."
The committee concluded that the award does not qualify as a scholarship or fellowship, but rather as a prohibited gift. (Mike Frisch)