January 11, 2010
Lawyer Witness Disqualified
The New York Appellate Division for the First Judicial Department affirmed a trial court decision to disqualify defense counsel in civil litigation under the "lawyer witness" rule:
Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.29) provides that "[a] lawyer may not act as an advocate before a tribunal in a matter if: (1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is
apparent that the testimony may be prejudicial to the client" (22 NYCRR 1200.29[b]). Here, plaintiff sufficiently established that a member of the subject firm would be a witness and provide testimony that "may be prejudicial to the client," inasmuch as defendants claim that the note in question is invalid and a forgery, and the member is the person who prepared the note in question, who would most likely have knowledge regarding its execution, and who is claimed to have delivered it to plaintiff. The member also represented defendant Nightlife in the transaction that resulted in the promissory note, as well as in negotiating a subsequent agreement regarding the note with the person whom defendants claim was its rightful owner. Furthermore, any delay in bringing this motion was minimal, given that discovery is ongoing, and defendants have claimed no prejudice. (citations omitted)
When You Assume...
A person injured in a motor vehicle accident received a policy limits payment from the responsible tortfeasor. He then sought additional payment from his insurance company. The attorney who had handled the claim against the tortfeasor referred the person to a second lawyer, who was present for the arbitration of the claim against his insurer. The arbitrator awarded the person nothing. Both lawyers received notice of the decision but failed to initiate litigation within the time prescribed by the insurance contract.
"In a preemptive strike," the insurer filed a petition to confirm the arbitration award. Both attorneys "submitted separate affidavits explained that they each 'assumed' that the other would notify [the insurer] that the award was not satisfactory." Neither did so.
The Rhode Island Supreme Court held that the contract provision was binding and that the failure to object to the award within 60 days required that the arbitration be confirmed. (Mike Frisch)
The New York Appellate Division ordered the immediate suspension of an attorney based on the following findings of fact:
In June 2008, the Committee received a complaint against respondent from a former client. She alleged that she never received her portion of a $15,000 insurance settlement awarded for injuries she suffered in a car accident. The client provided the Committee a copy of the Release and Power of Attorney that respondent allegedly faxed to her in April 2006, which she executed and returned to respondent as requested. Respondent, pro se, appeared before the Committee for a deposition, but did not bring his bank records because, he alleged, they had been stolen by his landlady when he was evicted from his apartment. Several days later, respondent submitted an answer to the client's complaint. He alluded to a number of serious personal problems, which have led him to withdraw from practicing law, other than performing some per diem work for a law firm. However, he stated that he had written a check to the client for her share of the settlement proceeds. He also stated that prior to the loss of his records, and, in particular, her file, he had the check stub for her payment. He added that if the client was not paid "due to an oversight", he would make every effort to rectify the situation.
The Committee subpoenaed the relevant bank statements, checks, withdrawal and deposit slips for the period May 2005 through November 2008. These revealed a deposit of a $15,000 check into his IOLA account made out to him as attorney for the complaining client. Respondent testified that $10,000 of that check belonged to the client, and that he recalled writing her a check in that amount. The bank records do not show a $10,000 check, but they do reveal that respondent paid himself the full $5,000 fee for the matter. Additionally, respondent made a large number of cash withdrawals from the account, which he could not account for. By August 23, 2006 the balance in the escrow account was $3.07 and the bank records still showed no check written to the client for $10,000. The records also revealed that respondent paid rent and utility bills out of the IOLA account, and that he impermissibly commingled personal funds with client funds.
Thus, based upon respondent's admissions made during his deposition, as well as the substantial documentary evidence of his mishandling and misappropriation of client funds, we conclude that respondent is guilty of professional misconduct warranting immediate suspension from the practice of law...
Removed Judge May Be Disciplined
A judge of the civil district court for Orleans Parish who had solicited campaign contributions and required his court staff to assist his campaign on threat of job loss was disbarred retroactive to his interim suspension by the Louisiana Supreme Court. The judge had falsely denied the allegations, including in oath-sworn testimony. The Supreme Court removed him from office him in 2003 but "did not reserve to the ODC the right to institute lawyer disciplinary proceedings against [him] in accordance with Supreme Court Rule XIX, section 6(B)."
The judge was charged with perjury and public salary extortion and pled guilty to a felony count of conspiracy to commit public payroll fraud. He was then suspended for the conviction, which was late expunged. The Supreme Court denied his petition for reinstatement after the conviction was set aside.
The court majority rejected the suggestion that it lacked jurisdiction, as the proceeding was "based upon the criminal conviction and not upon judicial misconduct." The majority found disbarment appropriate for the knowing and intentional misuse of the judicial office for personal benefit.
There is a concurring opinion and several dissents. Justice Johnson would lift the interim suspension and impose no further discipline: "This Court has handed down an excessively harsh discipline to a former member of the judiciary, who has not been the subject of previous disciplinary charges, and who, at the time of the misconduct, was a relatively inexperienced judge." Justice Victory opines as the author of the removal order that did not reserve bar proceedings and agrees with Justice Johnson as to sanction.