June 4, 2010
Tough On Crime
The Michigan Attorney Discipline Board increased a panel suspension of two years and six months and entered an order that revoked the license of an attorney. The board concluded that the panel had erred in determining the appropriate level of discipline where the attorney had converted to his own use $5,000 that a court ordered to be held in trust. The board futher concluded that "none of the personal problems related by [the attorney], or the testimonials of two judges, constitute 'compelling mitigation' that would justify a departure from [standards that provide that disbarment is generally the proper sanction for conversion of entrusted funds]."
The board also found that an order of restitution was appropriate because the clients in another matter got no value for their payment of fees. (Mike Frisch)
No Home in Prison
The Iowa Supreme Court today held that a prison is not considered to be an inmate's "dwelling" place for purposes of Iowa discrimination laws. However, the inmate might be considered an "employee" of the prison and have rights that emanate from that status.
The inmate filed a complaint with the Iowa Civil Rights Commission alleging discrimination in housing and employment. She had been working as a receiving and discharge clerk ("the most respected and highest paid position in the prison") when she allegedly was subjected to punishment for resisting an officer's advances.
The court found that housing discrimination law did not apply:
Although an inmate may consider her cell, and the prison as a whole, her indefinite residence and expect to remain in the prison for an extended length of time, we do not believe those considerations are determinative of whether a prison is a dwelling for purpose of the Act...Our determination of this issue is strongly influenced by the fact that [the inmate] has no choice in her placement...and freedom of choice is crucial for purposes of the Iowa Civil Rights Act and the Fair Housing Act.
A single justice dissented from the majority's conclusion that an inmate may have claims based on employee status. (Mike Frisch)
The Indiana Supreme Court reversed a conviction for driving while suspended and ordered a new trial because the defendant had been denied an impartial bench trial. The defendant decided that she wanted to accept a plea bargain after the first witness was called. The trial court "exhibited impatience" and told the defendant that if she was found guilty, "she's going to jail for a year." Then:
I don't know if I want to take your plea. I'd rather just go to trial, I think. I don't like being jerked around at all, all right?
When defense counsel reminded the judge at sentencing that unrelated pending charges were only allegations:
Sure they are.
The court here found that the trial court's conduct did not meet standards of Indiana Judicial Conduct Canon 2. (Mike Frisch)
Not Enough To Mitigate
An attorney who had misapproprited nearly $20,000 in three matters was suspended for three years by the Pennsylvania Supreme Court. The attorney had presented evidence that he had suffered from depression during the period of misconduct. While four witnesses testified on his behalf, no evidence of his condition was presented from his treating or evaluating medical professionals. He did not seek a continuance to put such evidence in the record.
As explained more fully in the appended report and recommendation of the Disciplinary Board, the attorney had not established mitigation based on depression. The absence of supporting medical testimony can be fatal to mitigation claims based on a treatable condition. (Mike Frisch)
June 3, 2010
"Computer Phobia" No Defense
An attorney has been suspended for an indefinite period of at least five months by the Minnesota Supreme Court.
The attorney had been charged with misconduct in two matters. The first involved failures to file income tax returns over a twelve- year period. The court rejected the suggestion that such failures did not violate ethical rules or must be intentional to constitute a violation, finding contrary precedent dating back to 1977. The court also found that the referee had rejected the defense of reliance on the advice of an accountant on credibility grounds.
The other case involved failure to comply with federal court requirements where the communication with the attorney was done through the court's electronic system. The attorney had claimed that the electronic notification system was "prone to errors" and that she had only received some of the court's e-mail communications. The referee found no evidence that messages were returned undelivered or had not been received. The referee also rejected the attorney's claims that the conduct was a result of either post-traumatic stress disorder or "computer phobia." (Mike Frisch)
Yes, No And Maybe So
The Florida Judicial Ethics Advisory Committee has addressed a number of issues relating to campaigning for judicial office with the following responses:
(1) May a judicial candidate send an email inviting persons to attend a fundraiser for the candidate’s campaign and personally encourage persons to attend the fundraiser?
(2) May a judicial candidate, in answering questions by voters as to what criteria they should use to evaluate candidates for judicial office, indicate that he or she agrees with the criteria used by a named United States President in nominating identified justices of the United States Supreme Court?
(3a) May a judicial candidate participate in a walk-a-thon to raise funds for a charitable organization?
(3b) May a judicial candidate participate in a walk-a-thon to raise funds for a charitable organization while wearing a shirt advertising the candidate's campaign?
(3c) May members of the judicial candidate's campaign committee participate in a walk-a-thon to raise funds for a charitable organization while wearing a shirt advertising the candidate's campaign?
(4a) May a judicial candidate accept an endorsement from a non-judicial elected official who is not campaigning for election?
ANSWER: Yes, but only if the partisan aspects of the official’s position are not mentioned.
(4b) If a judicial candidate accepts an endorsement from a non-judicial elected official, may the judicial candidate: (i) advertise the endorsement on the judicial candidate's campaign website; (ii) advertise the endorsement in printed campaign advertisements; and (iii) discuss the endorsement in a campaign speech or other public forum?
(5) May a judicial candidate accept an endorsement from a non-judicial candidate for elected office?
(6) May a judicial candidate place an advertisement on the side of a moving advertising truck which would also display other advertisements for other candidates for elected office?
(7) May a judicial candidate purchase tent space with funds drawn from the campaign account made out to the organizer of the county fair, and share space in the tent alongside other candidates for judicial or non-judicial elected office?
ANSWER: Yes, but only if the sharing of tent space with other candidates is done in a manner which does not create an appearance that the judicial candidate is running as part of a slate or as a member of a political party.
Settlement Undisturbed, Attorneys Can Be Sued
The New Jersey Supreme Court has affirmed an Appellate Division decision that overturned the trial court's grant of summary judgment to Duane Morris as defendant in a legal malpractice action. The underlying matter involved corporate governance concerns and had been resolved by a settlement. The client later sued the law firm for malpractice but had not sought to vacate the settlement.
Here, the court agreed with the Appellate Division that the lawyer defendants may properly be sued for giving negligent advice without the plaintiff first seeking to vacate the settlement agreement, so long as it is contended that the negligent advice culminated in the settlement. (Mike Frisch)
A convicted criminal defendant who alleges malpractice against defense counsel must claim and establish actual innocence of the offense, according to a decision of the New Hampshire Supreme Court. The defendant had fled while the jury was deliberating and was convicted in absentia of over 100 counts of theft and tax evasion. An appeal of the conviction was dismissed because the defendant was a fugitive. He was arrested in Switzerland and extradited to New Hampshire. The attorney who was sued was retained to seek post-conviction relief.
The court here dismissed the suit for failure to assert actual innocence. (Mike Frisch)
No Final Rest As Yet
The Maryland Court of Appeals has remanded a case that involves a silbing war over the burial place of their mother. One faction seeks to make Israel the final resting place; the others prefer Maryland.
The litigation commenced before Mother's death. One sibling who was the primary caretaker wanted to bury her in Israel, which is where the father and a deceased sibling are interred. Evidence was proferred in the form of oral statements and a writing (the genuineness of which was hotly contested) that Mother wanted to be buried in Israel. Mother could speak several languages but could write in none.
The trial court did not consider the evidence and entered an order directing a Maryland burial. Ironically, Mother died the very next day and was interred in Maryland two days later.
Here, the court found that the trial court improperly refused to admit and consider expressions of Mother's wishes with respect to the final disposition of her body:
We vacate the judgment that was entered, and remand the case for such further proceedings as may be appropriate. In doing so, we recognize that the circumstances have changed greatly since the time when the trial court made its ruling. We express no opinion with respect to the course of action the court of equity should follow on remand.
June 2, 2010
The story of the Louisiana internet/advertising rules and the federal court challenge
Posted by Alan Childress
One of my students doing a brief "independent study" on legal ethics wrote her paper on the 2009 Louisiana bar regulation of advertising, including internet and web advertising and blogging, and certain per-use fees and screening the bar requires. The rules were modeled on the restrictive Florida rules. The Louisiana act was challenged in federal district court late in '09 to a mixed result, as she details -- the judge nixing some procedures and fees while approving other parts of the act.
It's an interesting story and she helpfully explains what this means in nearly 25 other states. The student is Brittany Buckley--now a proud Tulane grad--and she said I could share it on LPB. It is called Intersecting the First Amendment, Ethics, and the Internet: Memo to Other States From the Louisiana Experience, and you can Download Buckley_ch 1 here.
This paper was turned into chapter one of the student book, called Hot Topics in the Legal Profession~2010, sold digitally on Amazon and Smashwords in nine formats including simple PDF (plus soon available for Nook and Apple--though iPad can read it now on its Kindle app). You do not need to own a Kindle to read Kindle books, but anyway there is always pdf or rtf from Smashwords. I blogged about the project here and included my Foreword as a download. This chapter should give you another taste of what the overall book includes, such as friending judges and judicial elections; ancillary businesses of law firms under labor law, actual friendships of judges, settlement ethics, and the Caperton case and final result. Get it while it is hot, and remember that sales benefit Tulane's nonprofit Public Interest Law Foundation.
The ethics book is featured on my publishing website at Quid Pro Books. We seek submission of books or monographs on law, legal history, and law and society -- and of course legal ethics -- plus other academic subjects. For information for you to submit your dissertation, here is my earlier post, but we also publish panel presentations, proceedings, and original manuscripts. Information for prospective authors is here.
Upping The Ante
An attorney was admonished by the Virginia State Bar Disciplinary Board for making a false statement to a tribunal in a small claims matter. Unfortunately for the attorney, he was also admitted in the District of Columbia and Delaware. The District imposed reciprocal discipline, but raised the sanction to a 30 day suspension.
The Delaware Supreme Court also just imposed reciprocal discipline, but rejected the 30-day suspension proposed by its Board (the attached Board report expresses the view that any greater sanction would amount to a penalty exacted for admission in Delaware). The court suspended the attorney for six months.
The District did not conduct any original proceeding but raised the sanction based on the Virginia record. Delaware conducted a hearing limited to the issue of sanction. Both jurisdictions imposed substantially different reciprocal discipline than that imposed in Virginia, where a full hearing had been held. (Mike Frisch)
Worst Client Ever?
An Arizona Hearing Officer has recommended a censure of a California attorney admitted pro hac vice in Arizona for a conflict of interest and the negligent disclosure of confidential client information.
The tangled web of the representation of the client as a plaintiff in civil litigation started with the attorney giving legal advice to the plaintiff while they were dating. The client was initially represented by Lawyer One, but the client convinced the attorney to serve as co-counsel. At the time, the attorney was aware that the client was also dating Lawyer Two, who was admitted in Arizona. Lawyer One withdrew and Lawyer Three agreed to become local counsel. When Lawyer Three withdrew, Lawyer Two replaced him as local counsel in the litigation.
Remarkably, the client was then simultaneously represented by two woman that he was currently dating. Lawyer Two was permitted to withdraw after she accused the client of assaulting her. However, the two reconciled. Lawyer Two then contacted the attorney and asked to help with the trial preparation. The attorney responded with information about the case, which led to the finding of a breach of the duty of confidentiality. The attorney testified that she believed she had the client's permission to make the disclosures to Lawyer Two. The attorney also believed that California rules prohibited her from seeking to withdraw from the case.
Matters got worse when the attorney alleged that the client twice asaulted her. The client was charged with seven felonies for the attacks and entered into a plea bargain. He is subject to a 20 year criminal restraining order whereby he may not contact or harass the attorney.
The hearing officer found that the attorney "stayed in the case long beyond a point when she should have." While the attorney contended that she was able to "compartmentalize" her personal and professional feelings, "the language of the e-mail she sent to [Lawyer Two] would say otherwise...the fact that [information] was disclosed as well as the fact that Respondent found herself in a difficult situation with [the client] further supports why the rules discourage a personal relationship between an attorney and a client."
The client "injected himself into [the attorney's] divorce proceedings by making false claims and testimony..." and was sanctioned for suing the attorney for legal malpractice. (Mike Frisch)
Disciplinary Probation For Eight Crimes
This disciplinary case summary appears in the most recent edition of the California Bar Journal:
[An attorney] was suspended for two years, stayed, placed on five years of probation and was ordered to take the MPRE within one year. The order took effect Oct. 29, 2009.
[The attorney] stipulated that he was convicted of eight crimes between 1999 and 2006 — battery against a spouse or cohabitant; contempt of court (twice) for violating a protective order; three instances of driving under the influence; child endangerment; and assault and battery. The violations did not involve moral turpitude.
I'm sure the attorney will do well on disciplinary probation as he likely has some experience with court-ordered supervision. (Mike Frisch)
June 1, 2010
5th Annual Conglomerate Junior Scholars Workshop
Posted by Jeff Lipshaw
I can tell you that one of the most difficult things for an aspiring professor to do is actually to get a paper read! Hence, if you write in the area of business law, I strongly recommend that you give serious thought to submitting a paper to Conglomerate's Junior Scholars Workshop, now in its fifth iteration. The deadline for submissions to Christine Hurt (Illinois) (email@example.com) is June 26, 2010, and the presentations will begin July 19, 2010.
Speak Into The Microphone
The New York Appellate Division for the First Judicial Department today imposed a six-month suspension of an attorney after receiving evidence of secretly tape-recorded conversations made by the client:
An investigation commenced into this matter upon a complaint from a former client, "L.E.", filed with the Departmental Disciplinary Committee on November 25, 2005. Some of the alleged misconduct was secretly recorded by the client during telephone conversations and a meeting in respondent's office. The client provided the Committee with recordings of two telephone conversations and a meeting that took place in respondent's office in October 2005 which were admitted into evidence at the disciplinary hearing.
The Committee charged respondent with acts of professional misconduct including making unwelcome sexual advances to L.E. in violation of DR 1-102(A)(7), asking L.E. for oral sex incident to his representation as trial counsel in violation of DR 5-111(B), boasting to L.E. that he is able to influence improperly Appellate Division judges in violation of DR 9-101(C), calling one of the First Department judges a "prick" in violation of DR 1-102 (A)(7) and making suggestive comments to his secretary and inappropriately touching her in violation of DR 1-102(A)(7).
Respondent submitted an answer to the charges in which he made some admissions but otherwise denied the charges. At the lengthy hearing before the Referee, L.E.'s direct examination was completed but her cross-examination was interrupted at her request and an extended adjournment granted, based upon proffered health reasons. When L.E. failed to return for the balance of her cross-examination, at the request of the Committee this Court issued a subpoena which was served upon L.E. but she did not comply and did not appear. Thereafter, the Referee granted respondent's motion to strike L.E.'s testimony from the record but ruled that the recording of the October 2005 meeting, the two telephone conversation recordings, and the transcripts of those recordings would not be stricken because they had been identified by respondent.
Based upon the preponderance of the evidence and admissions made by respondent, the Referee sustained the charges relating to unwelcome sexual advances and sexual misconduct involving L.E., as well as the charges involving inappropriate comments about this Court, and dismissed the other charges as unsustained. The Referee recommended a two-year suspension for the violations concerning respondent's inappropriate sexual behavior and public censure for the comments made about the judiciary. The Hearing Panel affirmed the Referee's decision relating to respondent's inappropriate sexual conduct but reversed the Referee's findings of liability regarding the offensive comments about the judiciary, concluding that they did not constitute violations of the Disciplinary Rules as they were made in private. The Panel recommended a five-year suspension.
The court concluded that lengthy suspensions are appropriate where the sexual misconduct involves deeds as well as words. As to sanction:
[The attorney] acknowledges that his conduct was inappropriate and regrettable, but explains that at the time, he believed that the touching was consensual and not uninvited given his previous flirtatious and personal discussions with L.E., and that they had a special relationship separate from the attorney-client relationship. Respondent contends that L.E. recorded additional conversations and "cherry-picked" only a small fraction of the many conversations that they shared in order to falsely portray respondent as someone who sexually assaulted and intimidated her. Respondent also apologizes for his disrespectful comments about this Court.
In mitigation, the approximately 76-year-old respondent lists his professional and public activities, the awards he has received, his character witnesses attesting to his honesty and his unblemished 50-year legal career. He urges that his conduct was isolated and aberrational and not part of a pattern, that he does not pose a threat to the public and that there is no likelihood he will act improperly in the future. He maintains that a public censure is the fair and appropriate sanction.
Upon a review of the record, we confirm the findings of fact of both the Referee and the Hearing Panel which relate to respondent's sexual misconduct and the charges pertaining to comments concerning this Court; disaffirm the Referee's conclusions of law and confirm the Panel's conclusions of law with respect to those latter charges, and suspend respondent from the practice of law for six months.
The court concluded that is not an ethical violation to call an Appellate Division judge a bad name or boast about an ability to influence a judge outside the presence of the court. (Mike Frisch)
Unacceptable Computer Use
Also from the California Bar Journal:
[A judge] was suspended for two years, stayed, placed on two years of probation with a 30-day actual suspension and was ordered to take the MPRE within one year. The order took effect Oct. 29, 2009.
While sitting as a judge in the Fresno County Superior Court, [the judge] used the county’s computer system in his chambers to access porn sites. His actions occurred during business hours as well as weekends and non-business hours during the week. When confronted about his inappropriate computer use, [He] admitted he accessed sites containing sexually explicit materials over an eight-month period.
He was privately admonished by the Commission on Judicial Performance.
[The judge] subsequently ran (unsuccessfully) as an incumbent in a contested judicial election in which he involved court employees in campaign activities. He asked employees (including some subordinates) to obtain signatures on petitions to be filed in lieu of filing fees, he used court resources to distribute some or all of his requests for support, he distributed a campaign brochure with a photo of himself and judicial staff members without their consent, and he had conversations about his campaign with court employees during working hours.
In addition, during two television interviews, he denied using his court computer improperly and made other misrepresentations. He later threatened to sue the TV station if it aired the allegations and again denied them. When portions of the interviews aired, [the judge] read a statement that retracted his earlier denials.
He stipulated that his actions, which violated the Code of Judicial Ethics, also violated the law and constituted moral turpitude.
In mitigation, [the judge] had no discipline record since his 1976 admission to the bar, he displayed remorse and cooperated with the bar’s investigation, and his actions caused no harm.
The order imposing judicial discipline is linked here. (Mike Frisch)
The California Bar Journal June 2010 edition reports:
[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 30-day suspension and was ordered to take the MPRE within one year. The order took effect Oct. 29, 2009.
[He] stipulated that he acquired interests adverse to an elderly couple he represented in two lawsuits. As security for their legal fees, the couple gave him the pink slip to their mobile home, purchased 14 years earlier. It was worth about $60,000 when the clients hired [him], who did not advise them to seek independent legal advice about the transaction.
About five months after he began working for the clients, [he] started to bill them; the last bill was for more than $29,000 for 94 hours of work plus interest. They disputed the bill because they felt [he] did not properly account for his time.
When two real estate holdings in which the clients held an interest were lost to foreclosure, they filed for bankruptcy and succeeded in discharging [his] debt. They only made an initial payment of $600.
Two years later, [the attorney] registered his security interest in the mobile home, the primary residence of the clients, with the DMV. He told them to insure the home in order to protect his interest. After the State Bar began an investigation, [he] relinquished his ownership interest in the mobile home.
He stipulated that his interest in the clients’ property was not fair and reasonable because the value of the mobile home exceeded the value of his billings.
[He] also was disciplined in 1990 for obtaining an ownership interest in his client’s property.
In mitigation, he cooperated with the bar’s investigation.
Crossing the LineThe Georgia Supreme Court has accepted a petition for voluntary surrender of the law license of an attorney admitted in 1995. The attorney was convicted of felony offenses involving distribution of a controlled substance and "crossing a guard line with and delivering a controlled substance (Fentanyl) to an inmate." The court treats the voluntary surrender of a law license as tantamount to disbarment. (Mike Frisch)
May 31, 2010
Permissible But With Extreme Caution
A judicial ethics opinion from Kentucky gives a "qualified" endorsement of judges friending on facebook:
In conclusion, even a cursory reading of this opinion should make clear that the
aCommittee struggled with this issue, and whether the answer should be a "Qualified Yes" or "Qualified No". In speaking with various judges around the state, the Committee became aware that several judges who had joined internet-based social networks subsequently either limited their participation or ended it altogether. In the final analysis, the reality that Kentucky judges are elected and should not be isolated from the community in which they serve tipped the Committee's decision. Thus, the Committee believes that a Kentucky judge or justice's
participation in social networking sites is permissible, but that the judge or justice should be extremely cautious that such participation does not otherwise result in violations of the Code of Judicial Conduct.
May 30, 2010
Serving The Dead
A Massachusetts attorney was suspended for six months and one day for serving a summary judgment motion on opposing counsel of record. The problem? He knew that counsel of record had recently died. The memorandum and order in the case notes:
Paul Irwin [opposing counsel] died on September 8, 2006, and the respondent learned of this death on September 26, 2006, by virtue of a telephone call from Attorney Michael Eschelbacher. Eschelbacher informed the respondent that he was the attorney for the Irwin estate and that he would be meeting with the [opposing client] Calcagnis to discuss settlement or referral to successor counsel. The respondent, in turn, informed Eschelbacher that he would be filing a motion for summary judgment shortly.
After that telephone call, Eschelbacher failed to contact the respondent again, despite having indicated he would. The respondent, for his part, did not contact Eschelbacher — the respondent apparently lost the note with Eschelbacher's name on it. Rather, the respondent, knowing that Irwin had employed a paralegal, telephoned and left numerous messages at Irwin's office, which the respondent knew to be located in his home. Although the name of Irwin's paralegal was in the respondent's files, he never reviewed his files to find it. Instead, the respondent assumed his messages were being forwarded by the paralegal to the attorney for the estate. The respondent never received a response to his messages. No successor attorney filed an appearance on behalf of the Calcagnis.
On February 9, 2007, the respondent mailed the summary judgment motion papers to Irwin's office, and on March 5, 2007, the respondent filed in the Superior Court the motion for summary judgment and statement of material facts. He included in the motion package a signed notice of filing in compliance with Superior Court Rule 9A (b) (2), indicating that his motion was served on the attorney of record for the defendants and further declaring, "I certify that no opposition was served in a timely fashion by the opposing party." On March 20, 2007, the respondent's motion for summary judgment was allowed without a hearing and judgment entered for Nike on May 21, 2007, in the amount of $268,225.57. The respondent obtained an execution, which was levied and suspended.
The Calcagnis learned of the levy, retained new counsel, and filed an emergency motion to set aside the judgment. The respondent opposed the motion arguing that the judgment should be preserved because the Calcagnis could not meet their burden of showing a likelihood of success on the merits. He did not concede that service had been improper. The Superior Court judge allowed the motion to set aside the judgment. The respondent was sanctioned and ordered to pay all the Calcagnis’ costs and attorney's fees in connection with the motion for summary judgment and their own emergency motion to set aside the judgment. The respondent paid the sanction as ordered, in the amount of $15,000, and withdrew his appearance for Nike.
The hearing panel rejected the suggestion that the rule requiring service on opposing counsel justified such service after counsel had died. (Mike Frisch)