May 15, 2010
Harry Potter And The Florida Judge
It is ethically permissible for a judge to author and promote a children's book, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The committee considered the activity to be "avocational" in nature:
An "avocational activity" is defined as a subordinate occupation or hobby (Webster's New Collegiate Dictionary, 1960). Therefore, the Code encourages activities such as writing a book on non-legal subjects, if the writing is otherwise consistent with the requirements of the Code.
In Fla. JEAC Op. 89-06, this Committee advised that it was permissible for a judge to author a book, to give a book to a member of the bar, and to autograph a book purchased by an attorney. However, the Committee advised against the judge selling the book to a member of the bar. This would not be proper under the Code, because it may be perceived to exploit the judge's position or involve the judge in frequent transactions with lawyers likely to appear before the court, all in violation of Canon 5D(1).
Likewise, in Fla. JEAC Op. 98-01, this Committee advised that a judge may ethically write a crime novel so long as it does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties. Canon 5A. This caveat applies to the current inquiry.
An example of when a judge cannot engage in a specific avocational activity is found in Fla. JEAC Op. 07-04. In that inquiry a judge was advised that it would be improper to sell at a Sheriff's fundraiser custom-made knives which were readily identifiable as made by the judge. The Committee further advised that the judge should not donate these items to other community organizations for charitable fundraising purposes. However, the Committee had no problem with the judge selling these knives at trade shows, by special order, or on the internet. The selling of the knives at auction was disapproved, not because the product was being sold to the public, but because the prestige of judicial office was being used to promote a fundraiser. No aspect of the current inquiry involves fundraising.
Finally, this Committee believes that posting a photograph of the judge on the author page of the book, having a book signing, and mentioning that the author is a judge are permissible under the Code. Such activities are reasonable and commonplace for publishers and are incidental to the avocational activity of the author. These activities do not appear to lend the prestige of judicial office to advance the private interests of others; do not cast reasonable doubt on the judge's capacity to act impartially; do not undermine the judge's independence, integrity or impartiality; nor do they demean the judicial office.
Therefore, this Committee advises that the contemplated activity is encouraged by the Code so long as the judge remains within the parameters of all other requirements of the Code.
Just be careful not to "friend" anyone in the process. (Mike Frisch)
May 14, 2010
"Uniquely Positioned" To Uncover Partner's Thefts
The New York Appellate Division for the Second Judicial Department has imposed a three-year suspension for an attorney's failure to adequately supervise his thieving law partner. The attorney also failed to fully respond to the complaints that poured in in the wake of the partner's defalcations. There were 30 complaints with 17 responses and a failure to respond to further requests for information.
The court stated:
In determining an appropriate measure of discipline to impose, the Grievance Committee has expressed strong disagreement with the Special Referee's conclusion and the respondent's contention that he was a victim of Belletieri's fraudulent scheme. The respondent's position is that Bellettieri [the partner] acted alone, without his knowledge, and that he acted to hide his misconduct from the respondent. He submits that had he been able to obtain Bellettieri's testimony at the hearing, the extent of the obstruction he created to prevent the respondent from finding out what he was doing would be revealed. The division of labor at BF & L [the law firm] was such that the respondent and [partner] Laudonio attended closings, while Belletieri ran the office, particularly the escrow accounts. The respondent issued checks at closings only after confirming that the requisite funds were in BF & L's escrow account. He maintains that he had no reason to suspect criminal behavior on the part of Bellettieri, who was the firm's founder and "a pillar of the community." Moreover, the high volume of transactions engaged in on a daily and weekly basis, together with the onerous schedule of closings the respondent was required to attend, would have made it a practical impossibility for him to reconcile the firm's accounts while continuing to meet his duties to clients.
The Grievance Committee maintains that the respondent displayed a long-term, near total ignorance of his fiduciary duties as attorney and escrowee. He ignored multiple warning signs and blatantly apparent indicators of criminality which could have forestalled such a massive escrow fraud by Belletieri. These included the $900,000 defalcation in BF & L's former escrow account at Fleet Bank in 2003, Bellettieri's refusal to produce the records for that account despite the respondent's requests, and the mysterious destruction of records maintained in BF & L's storage archive at that time. In the face of these warnings, greater oversight and immediate intervention was warranted.
With respect to the respondent, it bears noting that he was no stranger to the real estate and mortgage business. Far from being a business novice, he had an accounting background and had worked for an accounting firm for about three years after graduating from law school. He thereafter worked for a Manhattan law firm which handled real estate matters, where he was trained to represent buyers and sellers in residential and commercial transactions before starting his own practice and eventually entering a partnership with Bellettieri. He was comfortably drawing approximately $7,000 per week from BF & L during the period in question and knowingly permitted Bellettieri's commingling in order to allow BF & L to continue operating. The respondent's disciplinary history consists of one Letter of Caution, dated April 29, 2005, for his delay of approximately three years in resolving a $4,000 escrow problem arising from the sale of real property in Ozone Park, Queens. While it may have been difficult and time consuming to obtain the necessary documents to establish that the subject premises was a two-family dwelling on the tax records as of 1937, the Grievance Committee found no valid reason for the respondent's excessive delay in turning over the first $1,000 to the seller, who had promptly vacated the premises pursuant to the possession agreement. The respondent's failure to take any meaningful measures to resolve the tax record issue until after the filing of the underlying complaint resulted in the issuance of a Letter of Caution.
While the respondent was, to some extent, victimized by Bellettieri, he was also uniquely positioned to put an end to Bellettieri's scheme and thereby minimize damage to clients who had entrusted funds to BF & L. In this regard, he failed to uphold his nonwaivable fiduciary duty. Under the totality of circumstances, the respondent is suspended from the practice of law for a period of three years.
I'm not sure that I've seen this long a suspension for failure to discover the thefts of a law partner. (Mike Frisch)
Publish Your Dissertation as a Digital Book or Ebook on Amazon, B&N & Apple iBooks: Legal Ethics, Law, Legal History, Law & Society, Sociology, etc.
Posted by Alan Childress
As a follow-up to my post yesterday on republishing the Kadish & Kadish classic and others as a Kindle book or an ebook, I announce more generally that I seek submissions to publish digitally your still-relevant dissertation or monograph-length thesis. This is to post on Amazon and other sites for use on iPad, Kindle, and Nook, and related apps on PC, Mac, iPhone, and BlackBerry. The fields are legal ethics, law, law and society, legal history or biography, history, and the broader social sciences. This would not be an SSRN-type download but instead would be marketed as a regular Kindle book and the like and available to a broader international market, easily searched on Amazon, Google, and Barnes and Noble sites.
This is unlike some digital-dissertation services that essentially make it a vanity press by having it as a download from their site; my goal is to turn it into a real book, for use with readers and researchers through real channels and read by every device, with working links and footnotes. (And also unlike those sites, my royalty rate is much higher, and your book will accompany not only other dissertations but classic works in law and society, brought back digitally.) Eventually they will also be featured on this website, but mainly on Amazon, Barnes & Noble, and iBooks. Editing services are available for outsourcing at good rates (with legal writing professors!), but I will do all production, formatting, and marketing.
This service is not exclusive, in the sense that you are free to submit your work elsewhere in the meantime and pull it from this program should it be accepted by Penn Press or OUP ("making it to the show"), or for whatever reason; I'd facilitate that. This is exclusively digital publishing and is not meant to interfere with your parsing parts of it for articles (even to SSRN) or your seeking traditional publication of the whole. Contact me at this email address (or see left sidebar) with topic, description, and the history of your manuscript, and the goals you have for it, if interested. The imprint, as with the book above, would be with Quid Pro, these in a Dissertation Series or by subject matter, e.g., Legal Ethics, History. Although so far the accepted and anticipated books have been in law and society or legal sociology, subjects will include the broader social sciences of political science, sociology, history, and philosophy (or basically subjects that I feel competent to read and assess because of my doctoral work in Jurisprudence & Social Policy at Berkeley). If they are not particularly law-related, that is fine, as the project has expanded to become Quid Pro Books not just Quid Pro Law Books.
UPDATE: See this example, which has its digital origins in the comment by John Flood to this post.
A Tangled Web But No Ethics Violation
An Illinois Hearing Board has recommended that bar charges against an attorney be dismissed. The attorney had represented a married man in litigation involving a woman (not his spouse). The representation involved a civil protection order against the woman. During the course of the hearing on the protective order, it was established that the woman was in an intimate relationship with the client. The attorney also was having an affair with the client. After learning that the client was three-timing her, she contacted the client's wife and disclosed the husband's perfidy. The predictable result of this disclosure was the wife's initiation of divorce proceedings.
The hearing board found that the attorney's contact with the client's lawfully-wedded wife did not violate her duty of confidentiality:
In charging a violation of Rule 1.6(a) the Administrator alleges that Respondent revealed a secret of Matthew's without his consent by calling Matthew's wife and informing her that Matthew had an affair with Ms. Tipton. "Secret" is defined in the Terminology section of the Illinois Rules of Professional Conduct as "information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client." The Administrator states that Matthew's affair with Ms. Tipton was clearly information Respondent learned while representing Matthew in court on November 30, 2007, and that the revelation of this information to Matthew's wife was both embarrassing and detrimental to Matthew. Respondent argues that Matthew did not tell Respondent that he had engaged in a sexual relationship with Ms. Tipton and that once Ms. Tipton stated in court during a public proceeding that she had an affair with Matthew, that information was no longer a "secret" that Respondent was prohibited from disclosing.
Matthew admitted that he was intentionally "vague" in describing the nature of his relationship with Ms. Tipton to Respondent prior to the November 30, 2007 court hearing. Matthew also testified that he reluctantly told Respondent on November 9, 2007, that his relationship with Ms. Tipton was "physical," when Respondent filled out the form for his order of protection against Ms. Tipton and that he did not provide any further information to Respondent about the nature of his relationship with Ms. Tipton. On November 9, 2007, Respondent checked a box on the order of protection paperwork indicating that Matthew had a dating relationship with Ms. Tipton.
Respondent testified that Matthew did not tell her his relationship with Ms. Tipton was "physical." Respondent explained that she checked the dating relationship box on the order of protection form because Respondent told her Ms. Tipton wanted to have a dating relationship with him, but that he did not want to have one with her, which was why he was seeking the order of protection. Respondent testified that she was not aware Matthew had engaged in a sexual relationship with Ms. Tipton until Ms. Tipton described her relationship with Matthew in court on November 30, 2007, and that she was shocked by this information.
We do not find Matthew's testimony or the dating relationship box Respondent checked on the order of protection form sufficient to clearly and convincingly establish that Respondent knew Matthew had engaged in a sexual relationship with Ms. Tipton prior to Ms. Tipton's statements in court on November 30, 2007. We also find Respondent's testimony that she did not know Matthew had engaged in a sexual relationship with Ms. Tipton prior to the November 30, 2007 court hearing credible..This is consistent with the fact that Matthew went to great lengths to hide from Respondent the nature of his relationship with Ms. Tipton.
Accordingly, we conclude that the only information given to Respondent about Matthew's sexual relationship with Ms. Tipton was Ms. Tipton's public statements in court and the documentation Ms. Tipton brought to court with her regarding her relationship with Respondent. Ms. Tipton's disclosure of her affair with Matthew in open court made it impossible to identify how many individuals became aware of this information and therefore, the "secret" was not only known to Matthew, Ms. Tipton, and Respondent, but "in a legal sense it was known to the whole world." (citation omitted)
The hearing board also rejected former client conflicts charges:
In charging a violation of Rule 1.9(a)(2) the Administrator alleges that by calling Matthew's wife, Sally, and informing her that Matthew had an affair with Ms. Tipton, Respondent used information related to her representation of Matthew to his disadvantage because that information caused Sally to initiate divorce proceedings against Matthew. Rule 1.9(a)(2) prohibits an attorney from using information related to the representation of a former client to that client's disadvantage unless that information has become generally known. Respondent argues that no violation occurred because the information regarding Matthew's affair with Ms. Tipton had become generally known.
The evidence clearly established that on November 30, 2007, Ms. Tipton stated to the judge during a public proceeding in court that she had engaged in an affair with Matthew and that after learning this information in court Respondent called Matthew's wife and told her that Respondent had engaged in an affair with Ms. Tipton. We find Ms. Tipton's statements during a public proceeding in court about her affair with Matthew caused this information to become generally known. Accordingly, the evidence showed that Respondent did not reveal the information to Matthew's wife about his affair with Ms. Tipton until after the information had become generally known. As a result, we conclude the Administrator failed to meet his burden of proof as to Rule 1.9(a)(2) and recommend that charge be dismissed.
Look for an appeal by the Administrator here. The charging document in this matter was a basis for a question on my last year's American Legal Profession exam. (Mike Frisch)
Class Actions Alleging Unauthorized Practice Dismissed
The Florida Supreme Court has affirmed the dismissal of two class actions brought against Merrill Lynch Credit Corporation that sought return of document preparation fees on a theory that the corporation had engaged in the unauthorized practice of law. The court majority concluded that it had exclusive authority to regulate the unauthorized practice of law. While Florida statutes allow a private litigant to recover fees for legal services paid to non-lawyers, the plaintiffs here had failed to identify and plead facts sufficient to establish unauthorized practice by Merrill Lynch. This element may be proven by a prior court injunction or controlling opinion that the conduct at issue crossed the line.
Justice Canady dissented: "Neither the majority nor the respondents have identified any precedent in any other area of the law for the assertion of what amounts to exclusive issue-of-first-impression jurisdiction...I would quash the decision [below] and remand for further proceedings on the merits of the plaintiffs' claim of unauthorized practice." (Mike Frisch)
Entitled To A Hearing
The Maryland Court of Appeals held that a physician had not been convicted of a crime of moral turpitude and thus was entitled to an evidentiary hearing prior to license revocation. The physician was the subject of two criminal complaints alleging fourth degree sexual offenses against patients during examinations. The physician entered an Alford plea to a lesser charge of second degree assault and expresssly denied that the prosecutor's proffer of facts was accurate. The court accepted the plea and granted probation before judgment.
The State Board of Physicians summarily revoked his license to practice medicine, based on its conclusion that the crime involved moral turpitude. The court here disagreed that the conviction involved such an offense, disagreeing with the State Board that the record established the sexual abuse of the patients. The plea to the lesser offense did not conclusively establish guilt of the greater offense, in light of the physician's explicit denial of the proffer at the plea proceeding: "A stipulation as to testimony is not an admission of fact." (Mike Frisch)
May 13, 2010
Kadish & Kadish on Honoring Law By Breaking It: Bringing Back Discretion to Disobey
Posted by Alan Childress
That may be a bit of an exaggeration about the Kadish argument, since they say "rule departures" rather than "violations" or "breaking the law," but it is an intriguing argument nonetheless. Admittedly not so much a legal ethics argument as an ethics one [on the concept of law and the philosophy of law-deviations and civil disobedience], but I felt it appropriate to blog on it here because it is part of a larger project I am working on--more on that soon--that certainly does include works on legal ethics and the legal profession.
Mortimer and Sanford Kadish first published their classic study of rule departures within law in 1973, by Stanford U. Press, and I am republishing it as a digital book with permission (and I made new covers, left). Here is the Amazon site featuring it and allowing its download. It is in the form of a Kindle book but is also fully compatible with free ereader apps on PC and laptops, Mac, iPhone, BlackBerry, and iPad. (Weirdly, Kindle books read better on the iPad than iBooks do, since their own iBooks makes you strip the linking of footnotes and other necessities of law books.) It's my first follow-up after bringing back Warren & Brandeis, The Right to Privacy (both digital ebook, and in paper, right) last month, with blogging here. Discretion to Disobey is part of a series I want to do, Classics of Law & Society, so feel free to write me if you want to digitize your own classic work and believe you hold at least its digital rights (this means you, Nell Harper Lee, though Ronald Dworkin should still ask too, or for that matter anyone with a timeless book--so in fact I am working on some legal history and judicial biography works, and others that should be available for downloads.)
The Kadish book is certainly a recognized classic: people were arguing about it from when it first came out. One reviewer wrote that "the paradoxical idea that a citizen or official may lawfully break the law" surely "will raise the hackles" of a positivist. (I'd also gladly publish Hart's rejoinder, The Concept of Law 2: Positive Vibes.) Both citizens and government actors, the book argues, have the power and the right to deviate from law in certain contexts and yet not act illegally in a sense, because law itself contains strands of adaptations to its own departures that the authors weave into a sustained jurisprudential whole. Mortimer Kadish (1916-2010) was a much-published philosophy professor at Case Western, while his brother Sanford became dean at Berkeley's law school and remains an accomplished professor and scholar there. This book is truly a joint product of the fields of philosophy and law. I hope it's of interest to some of our readers (I bet Patrick S. O'Donnell has read it, and may have even assigned it to his classes). If you have a similar classic that needs to be easily read again, or a new manuscript (including Patrick), let me know....
When Steven Met Barbara
What happens when a private citizen is rear-ended by a D.C. Metropolitan Police detective who is driving her son to school?
In one instance, the citizen ends up getting arrested and charged with reckless driving. The citizen was tried and acquitted of the charges. He then sued the detective and the arresting officer for false arrest, malicious prosecution and intentional infliction of emotional distress. He also sued the city for negligent supervision. The District of Columbia Court of Appeals today affirmed the award of damages to the citizen.
The plaintiff was a clinical psychologist at Walter Reed Hospital who was driving a silver Porsche. He was hit by the detective, driving a green Honda. The detective got angry and profane, admitting that she had a high level of "pissivity." This presumably is in contrast to a level of "passivity." A police officer responded and arrested the clinical psychologist after what could fairly be characterized as an inadequate investigation, which appears to have consisted of siding with the detective.
The court rejected the District's appeal on the issue of allegedly inconsistent jury verdicts. The court also agreed that the detective could not be liable for false arrest and malicious prosecution, as she left to take her son to school. The arresting officer was liable as was the District for failure to supervise. (Mike Frisch)
Revenge Can Be a Dangerous Motivation
The Louisiana Supreme Supreme Court has disbarred an attorney who had been charged with (and acquitted of ) extortion charges. While those charges were pending, he obtained an affidavit from an inmate that accused the Parish district attorney (and his prosecutor) of solicitation to commit murder. The attorney used the affidavit without any independent investigation of the truth of its contents. He later filed a suit against the district attorney and the Parish judges that was deemed to be frivolous and brought as an act of revenge.
There was misconduct found in other bar matters that included lack of candor and dishonesty to a tribunal in a matter unrelated to the was with the district attorney and the courts. The court found no mitigating factors.(Mike Frisch)
Misconduct After Blown Statute Of Limitations Warrants Disbarment
The Maryland Court of Appeals has disbarred an attorney for a pattern of misconduct in the course of a single serious personal injury matter in which he had represented the plaintiff. He did not timely pursue the matter and filed suit after the applicable statute of limitations had expired. He attributed the late filing to an administrative oversight.
When he filed the case, he misrepresented the accident date by a year to conceal the statute of limitations problem and failed to correct the date, "causing the Circuit Court to needlessly expend time and other resources, all in violation of [multiple disciplinary rules including dishonesty and lack of candor to a tribunal]." His affirmative acts of concealment of the statute of limitations issue from his client precluded any recovery for her substantial injuries. He failed to advise her to obtain independent counsel to pursue a possible malpractice claim. He did not have malpractice insurance.
He also failed to respond to Bar Counsel's written requests for information.
The attorney was undergoing a nasty and unexpected firm dissolution in which he was locked out of his office, marital discord and health issues. The court found that these factors did not explain or mitigate the blown statute and ensung acts of serious dishonesty. (Mike Frisch)
May 12, 2010
The Illinois Review Board has proposed a one-year suspension of an attorney found to have violated fiduciary obligations to his law firms by "moonlighting." The Review Board concluded:
The Hearing Board found that the Respondent breached his fiduciary duty to Altheimer & Gray and Holland & Knight by depriving them of the opportunity to provide legal services to, and to earn income from, his moonlighting clients. He engaged in deceitful conduct over a long period of time, in order to earn income from the practice of law in breach of his duties to his employers. He engaged in dishonesty by failing to disclose his outside practice to the firms, by making misrepresentations on his employment application to Holland & Knight, by submitting altered copies of tax returns, and according to the majority of the panel, by exporting documents to his home, rather than following the firm’s procedure.
We affirm the Hearing Board’s findings. We are particularly troubled by the Respondent’s dishonesty concerning Holland & Knight. Respondent willfully altered his tax returns with an intent to deceive the law firm. He signed his employment application representing that its contents were accurate when he knew that they were not. In signing the employment agreement, the Respondent agreed that he would not "undertake or continue any representation except in accordance with [Holland & Knight’s] practices and procedures," which included that unless the firm approved otherwise, "all compensation for services of every kind rendered by a firm lawyer….shall be deemed income of the firm." He signed the agreement while fully intending to continue his moonlighting practice. The Respondent does not appear to be remorseful for this misconduct. He apparently does not view his dishonesty as a violation of the professional rules, as he argues that the proceedings should be dismissed.
As to sanction:
After consideration of all the circumstances, we conclude that a suspension of one year is appropriate in this case. Unlike the situation in Vano, we find no indication that probation is appropriate here. It would serve no purpose. The Respondent’s conduct was deliberate and not the type of activity that would be remedied through supervision. Additionally, and unlike the situation in Vano, there was no ambiguity as to what was required of the Respondent in this case. In Vano, the aggrieved law firm allowed, as part of a settlement, the entry of a summary judgment order against it which stipulated that the agreement governing Vano’s obligation could "be interpreted" so as to make Vano’s conduct innocent.
"Not Totally Heartless"
The Wisconsin Supreme Court has imposed a public reprimand of an attorney who had committed ethical violations in the course of representing a criminal defendant. The court found that the referee had not abused his discretion in handling a request for adjournment of the proceedings due to the respondent attorney's health issues:
There is no dispute that at the time of his adjournment request, Attorney...was undergoing chemotherapy for cancer. There is no dispute he could not anticipate how he would respond to his treatments. As Attorney...stated, the effects of chemotherapy cause discomfort, including diarrhea, nausea, and vertigo. Attorney...was certainly entitled to accommodations as well as understanding with respect to the challenges he faces while making his recovery. We sympathize with the challenges Attorney...faces with treatment and very well may have ruled differently. Our role on appeal, however, is not to substitute our discretion for that of the referee. See SCR 22.16(1). We must examine the record to determine whether a rational basis exists for the referee's decision to proceed.
The record reflects the referee's understanding that Attorney...was undergoing treatment of a very dangerous disease and experiencing the discomfort and difficulties associated with chemotherapy. The referee had postponed the disciplinary hearing from October 6, 2008, to March 23, 2009, when it was rescheduled with Attorney...'s cautious agreement. We conclude the referee was entitled to find that the medical verification did not address whether Attorney...was medically incapacitated and unable to participate in the March 23 hearing. Also, we conclude the referee was entitled to conclude the medical verification did not support Attorney...'s proposal to adjourn subject to postponement due to the unpredictable treatment schedule and its effects. The record indicates the referee understood the effects of chemotherapy would cause discomfort, be distracting, and were unpredictable. However, the record also demonstrates the referee's consideration of the obligation to balance the needs of Attorney...with those of the lawyer regulation system, the grievant, and the witnesses. The record shows the OLR and the referee were willing to accommodate Attorney...'s discomfort by permitting a choice of hearing location, a delayed starting time, frequent breaks as requested, and participation by telephone. We conclude the record fails to reveal the referee erroneously exercised his discretion.
Attorney...argues the proposed accommodation of a telephone hearing was prejudicial, however, because it would eliminate his opportunity to cross-examine witnesses in person. Attorney...does not, however, identify what fact-finding is disputed. He does not indicate what defense he would have raised. He submitted no post-hearing brief challenging the OLR's arguments. He made no offer of proof and does not suggest any evidence he would submit if granted a new hearing. In the absence of a demonstrated factual dispute, we conclude Attorney...does not show prejudice by the referee's order denying a second adjournment. (citation omitted)
As a result, we decline to set aside the referee's determination. We approve and adopt the referee's findings of fact and conclusions of law as to four counts of misconduct, which are unchallenged on appeal.
The Office of Lawyer Regulation argued that it had "not been totally heartless and had suggested many accommodations." (Mike Frisch)
Spring 2010 Newsletter of the AALS Section on Professional Responsibility -- Hot off the presses
Posted by Alan Childress
Thanks again to the excellent generosity of the Section on Professional Responsibility of the AALS, which generosity and excellence we have noted before, we provide to you the latest issue of the newsy Newsletter. Download Spring_2010_PR_Newsletter. It has lots of substantive law and rule changes, all dealing with legal ethics, as well as calls for papers and conferences in the field. This issue includes a brief article on the judge as Facebook friend, an issue that Mike on this blog has also raised here (Florida) and here (South Carolina).
Road Rage As Ethical Violation
The South Carolina Supreme Court suspended an attorney for six months retroactive to an interim suspension that had previously been imposed. The case involved a road rage incident:
Respondent graduated from college in 2004 and then worked as a police officer in Horry County for a year and a half. Following his graduation from law school in 2007, Respondent began working as an assistant solicitor with the Ninth Circuit Solicitor's Office.
This case arises from a road rage incident. On February 15, 2008, Respondent was arrested and charged with pointing and presenting a firearm after he allegedly pointed his gun at a driver ("female driver") in another vehicle while driving. Respondent was immediately fired from the solicitor's office and placed on interim suspension.
The female driver informed law enforcement that she was alone in her vehicle when Respondent, without provocation, displayed a firearm. While Respondent exercised extremely poor judgment warranting a sanction, the facts are not as reprehensible as reported by the female driver.
The record reveals the following facts. Respondent was driving from Charleston to Myrtle Beach on February 15, 2008. As he was merging onto the Ravenel Bridge, he drove behind a vehicle traveling around twenty miles-per-hour. Respondent testified the vehicle was "zigzagging" in the lane, so he attempted to get around it. Respondent admitted he was following the vehicle too closely. As he tried to pass the vehicle, Respondent testified the female driver and her male passenger extended their middle fingers and shouted at him. Respondent testified he tried to pass them a couple of times, but they cut him off each time. When Respondent was eventually able to get in front of the car, he tapped his brakes, apparently in an attempt to frustrate the driver.
The female driver then pursued Respondent and passed him. As the couple's vehicle passed Respondent's vehicle, the male passenger held up a gun, put his middle finger up, and yelled at him. Respondent passed them, took his gun from the center console, and said: "What the hell are you doing, I have one too." This concluded the road rage incident, and the female driver exited the highway. The female driver called 911 claiming to be a victim of road rage. The female driver provided information concerning Respondent's vehicle. Shortly thereafter, the police stopped Respondent's vehicle and arrested him.
Respondent and the female driver disputed the events leading up to the incident. According to the incident report, the female driver claimed she was by herself in the vehicle, and as she was driving on the highway, Respondent's vehicle came up behind her at a high rate of speed. The female driver stated that as he passed her, Respondent was yelling and pointing a gun at her. The female driver denied any road rage conduct on her part, as well as the presence of a male passenger in her vehicle.
After investigating the matter, the Attorney General's Office offered Respondent the opportunity to enter into pre-trial intervention (PTI) in exchange for the dismissal of the charge. After Respondent successfully completed PTI, the charge was nol prossed and expunged from his record.
For reasons not known, law enforcement never investigated Respondent's claim that a male passenger had first pointed a firearm at Respondent and threatened him. Law enforcement simply accepted the female driver's claim that she was alone. The truth came to light at the Panel Hearing. The female driver's call to 911 was recorded. The 911 recording proves the presence of a male passenger in the vehicle. The voice of the male passenger is heard relaying identifying information about Respondent's vehicle, such as his license plate number. Additionally, Respondent submitted affidavits from the female driver's landlord stating she saw the driver and her husband – the male passenger – after the incident and the driver told her "they" had a problem with someone on the bridge. Respondent also submitted an affidavit from the property manager of the female driver's residence. He asserted that the female driver told him about the incident and that both she and her husband were in the vehicle. A day later, she told the property manager the person involved in the incident was a solicitor and "we (she and [her husband]) are going to sue him for 'a lot of money.'"
The true facts concerning the road rage incident in no manner exonerate Respondent, yet the facts mitigate the degree of his misconduct. Respondent exercised extremely poor judgment in participating in this road rage incident. Respondent could have removed himself from the situation after the initial contact, but he chose to further engage the couple in the other vehicle. Respondent was then confronted and threatened by the male passenger with a firearm. The female driver lied to law enforcement, and when law enforcement merely accepted her claims without any scrutiny, she saw an opportunity to leverage Respondent in a civil lawsuit. If law enforcement had simply listened to the 911 transmission, the falsity of the center piece of the female driver's claim would have been revealed.
The Panel questioned Respondent regarding his counseling sessions. Respondent admitted he perhaps had unresolved issues as a result of a prior shooting incident when he was a police officer. Respondent was candid with the Panel and took full responsibility for his actions.
The attorney was authorized to carry the gun in his car. The court also ordered him to continue with counseling sessions. (Mike Frisch)
Violation Of Bar Exam Rules Results in Denial Of Admission
The Ohio Supreme Court entered a series of orders today that included the denial of bar admission to seven persons who were caught violating test administration rules while taking the Ohio Bar examination. The orders recite that the applicants had "violated examination rules by returning to questions after time was called." Two applicants had done so on the Multistate Performance Test.
The denials do not prevent possible admission in the near future. The court will allow each of the applicants to reapply for admission at various times in 2010. The court denied a motion of one applicant to seal the matter. (Mike Frisch)
The New York Appellate Division for the First Judicial Department rejected an attorney's asserted fear of a stalker as an explanation for failure to respond to two client bar complaints. The attorney was suspended on an interim basis for failing to respond. The court described the efforts of the Departmental Disciplinary Committee to obtain responses after letters were returned unopened:
In October 2008, the Committee's investigator visited respondent's purported residence, but she was not present and the individuals that were present claimed they did not know respondent. On or about October 27, 2008, the U.S. Postal Service advised the Committee that the mailing addresses they had for respondent were indeed valid.
On three successive days in March 2009, the Committee's investigator unsuccessfully attempted to personally serve a judicial subpoena duces tecum at respondent's address in Brooklyn. The subpoena directed respondent to appear before the Committee on April 21, 2009 and to provide an answer to the Gray-Nelson complaint. On March 30, 2009, respondent was served with the subpoena by substituted service. The Committee continued its attempts to contact respondent by sending letters to both of her Brooklyn addresses by regular and certified mail, and by regular mail to an address in Jersey City found in an internet search. The regular mail was never returned or answered and the certified mail was returned as "unclaimed".
On or about August 6, 2009, the Committee sent a copy of the Jordan complaint to respondent at her Manhattan business address and directed her to answer within 20 days. Respondent failed to respond to the Committee's letter and it was returned, unopened.
The attorney later filed an affidavit:
...respondent submitted an affidavit whereby she avers that she did not intentionally refuse to cooperate with the Committee's investigation, rather, she had no notice of the two complaints against her because she had not received any of the Committee's correspondence. Respondent claims she has had to relocate her residence on several occasions because she was being stalked by a dangerous individual. She avers that as soon as her sister found a copy of the Committee's motion, respondent immediately retained counsel and states that she intends to cooperate.
Nonetheless, the court concluded:
...an attorney who is the subject of an investigation by the Committee may be temporarily suspended from the practice of law, pending consideration of the charges, upon a finding that the respondent is guilty of professional misconduct that immediately threatens the public interest, such as refusing to cooperate with the Committee's investigation of misconduct. Here, while respondent was allegedly being stalked and did not provide her current addresses to OCA out of fear for her safety, at least since October 1, 2009, she has had copies of the two complaints filed against her. Despite that notice, to date, respondent has not submitted answers to the complaints nor has she appeared for a deposition. Thus, respondent's conduct demonstrates a willful noncompliance with the Committee's investigation, warranting her immediate suspension. (citations omitted)
The suspension will remain in effect until the proceedings are completed and further court order. (Mike Frisch)
Excessive Fee For Unwanted Litigation Draws Reprimand
The web page of the Massachusetts Board of Bar Overseers summarizes a recent public reprimand:
Beginning in late 2000, the respondent represented an administratrix in probating the estate of her sister, Mary. The client was also the administratrix of the estate of her brother, John, who had died shortly after Mary. The client was represented by separate counsel on John’s estate.
Mary had no funds in her name alone, but there were three bank accounts in Mary’s and John’s names—one account of $537,876 in a Florida bank and two accounts totaling $6795 in a Massachusetts bank. The interest earned by the three accounts had for several years been reported under Mary’s social security number and declared on Mary’s income tax returns. The respondent concluded that the accounts were not true joint accounts but were in fact Mary’s funds that had been held in joint accounts with John only as a matter of convenience. The respondent did not, however, attempt to obtain from the banks any account-opening documents, signature cards, or agreements governing the accounts to determine who owned the accounts.
Mary had no other assets, while John had an estate worth close to $2,000,000. At the time of John and Mary’s deaths, the federal estate tax exemption was $675,000. Consequently, John’s estate was taxable with or without the “joint” funds, while Mary’s estate was not taxable, even with the “joint” funds. The respondent and the client’s other attorney agreed that Mary was probably the owner of the three accounts and recommended to the client that the funds be considered as part of Mary’s estate. The client rejected that recommendation because she believed that all of the funds had belonged to John.
To resolve the conflict between the client’s and his understanding of the nature of the “joint” accounts, the respondent filed an action in the probate court, seeking instructions from the court as to how to treat the accounts. The client opposed the filing of such an action and the resulting mounting legal fees. She changed her earlier position and advocated filing tax returns consistent with the belief that the funds in the joint accounts were Mary’s. The client’s proposal was a legal and reasonable approach to the tax issue.
The respondent continued to prosecute and defend the equity action over the client’s objection. On September 15, 2004, a Middlesex probate court judge filed a reservation and report of the equity matter to the Massachusetts Appeals Court. On January 3, 2005, the Supreme Judicial Court granted direct appellate review. Prior to issuing a decision on the case, the SJC orally requested that the respondent obtain from the banks certain information about the subject accounts. In response to the request, the Cambridge Savings Bank produced a copy of a signature card for one of the accounts, indicating that Mary was the only signatory. The bank reported that it had no record of John.
On September 2, 2005, the SJC issued its ruling in Florio v. Florio, 445 Mass 1004 (2005). The Court stated that “because the record does not permit us to conclude that the Massachusetts accounts are in fact joint accounts, as alleged, it appears that the relief sought is not necessary.” The Court declined to make any ruling with respect to the Florida account, noting that a Florida statute mandates that Florida law governs all aspects of bank deposits in Florida.
The total fees charged by the respondent were $245,394, of which the respondent collected $177,000 from John’s estate. Most of the respondent’s fees related to the issue of the “joint” accounts and to the planning, discussing, filing and prosecution of the equity action. The equity action did not result in any benefit to the estate or to the heirs. The fees charged by the respondent were clearly excessive.
By failing to obtain relevant documentation of the “joint accounts” from the banks prior to initiating litigation, the respondent violated Mass. R. Prof. C. 1.1 and 1.3. By failing to seek the lawful objectives of his client through reasonably available means permitted by law, the respondent violated Mass. R. Prof. C. 1.2(a). By charging John’s estate a clearly excessive fee, the respondent violated Mass. R. Prof. C. 1.5(a).
In mitigation, the respondent has made restitution to John’s estate in an amount agreed to by the successor administrator of the estate.
The matter came before the Board of Bar Overseers on an agreed recommendation for discipline by public reprimand based on a stipulation of the parties. On March 8, 2010, the Board of Bar Overseers voted to administer a public reprimand to the respondent.
The case is Matter of Blake. (Mike Frisch)
May 11, 2010
Public Reprimand For Manifesting Bias
The Indiana Supreme Court approved the stipulated discipline of a public reprimand for manifesting bias or prejudice based on sexual orientation. The stipulated facts:
In June 2008, Respondent began receiving on her unlisted phone number persistent pre-recorded messages from a company seeking a person by the name of Respondent's husband. Respondent and her husband agreed that Respondent would call the company at the toll-free number given in the messages. Accordingly, Respondent called the number and spoke to a male representative of the company, identifying her husband as her client. Noting what she thought was a feminine-sounding voice, respondent gratuitously asked the company's representative if he was "gay" or "sweet." After the company representative commented on the unprofessional nature of this inquiry, the phone conversation ended abruptly.
The attorney admitted the violation of Indiana Rule 8.4(g) and apologized to the company representative. The rule makes it professional misconduct to:
...engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge's finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
As readers are doubtless aware, the ABA Model Rules do not contain a version of Indiana Rule 8.4,subsection (g). Expressions of bias are addressed in comment  to Model Rule 8.4 and are typically treated as a subspecies of the prohibition against conduct prejudicial to the administration of justice. There are cases where lawyers have been disciplined for racist and sexist comment in depositions or other court proceedings.
From Wells To Dover Foxcroft
The Maine Supreme Judicial Court denied the reinstatement petition of an attorney admitted in 1999, suspended in 2003 as a result of a barrage of bar complaints, and disbarred in 2004. The misconduct involved a wide array of violations that included three instances of forced sex with an unwilling former client. The attorney had moved to Georgia after the disbarment and obtained teaching credentials but failed to disclose his Maine disbarment. His teaching certificate was revoked when the omission was discovered.
His personal statement in support of reinstatement claimed that he was disbarred because he had "accepted the challenge of serving his people in a jurisdiction which was devoid of any civil rights architecture or sophistication: a state in need of a hero." He further claimed that '[w]herever I went-in whatever courthouse I argued-I was followed by crowds, cameras and enthusiasts. At age 27, I argued to packed courthouses from Wells to Dover-Foxcroft and was the focus of the civil rights movement in Maine."
The court found nothing in the record to support the above claims and nothing that would suggest he could be likened to civil rights attorneys in the South that had risked disbarment (or worse) because of their zeal and legal skills:
[His] view of himself and the reasons for his disbarment might be understandable, even if incorrect, had he been disciplined for overzealousness, arrogance, incivility, or disrespect towards clients, the bar or the courts. But [he] was disciplined primarily for abuse, financial impropriety and neglect of clients. The catch words [he] uses to characterize his problems do not explain this abuse, financial impropriety and neglect, and [he] does not appear to acknowledge this as a problem.
The record...demonstrates that when [he] was unavailable for clients, it was not because he was trying a high visibility case in Dover Foxcroft or doing interviews for the evening news, but because he was nowhere to be found when his clients needed him. Repeated sexual abuse of a client, missing many court deadlines, and neglect of many cases, including a gentleman who wanted to pursue a racial profiling action are not the actions of an attorney who "professes to be a champion of civil rights and minority causes...."
Anyone with a perception of himself and of his importance that is so far removed from reality will likely not pursue practice with the requisite honesty and integrity when understanding and adhering to ethical standards conflicts with [his] unrealistic self-image of who he is and should be in life and in law.
Petition denied. (Mike Frisch)
Permanent Disbarment Proposed For Stealing From the Saints
The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of an attorney who misappropriated the funds of several clients. He also had engaged in litigation-related misconduct. A number of the clients were professional athletes, including a hockey player for the minor league New Orleans Brass and a member of the Louisiana Ice Skaters.
His practice also involved representation of several players with the New Orleans Saints. The attorney stole workers compensation awards paid to the two of the players for their injuries. They were not advised of the payments and did not get a penny. When he was fired by 18 of his Saints clients and two players for the New Orleans Voodoo, he failed to turn over client files which had been lost or destroyed when he was evicted from his Atlanta office.
The attorney also was convicted of cocaine possession and impaired driving charges.
The attorney attempted to resign from the Louisiana Bar and did not participate in the disciplinary proceedings. (Mike Frisch)