June 11, 2010
Drinks On A Plane
The Kansas Supreme Court has imposed a stayed one-year suspension and probation for two years in a case involving an attorney's alcohol issues. After drinking to excess at a lunch, a partner drove him home. The attorney's partners got him into a treatment program and, when he returned to work, required him to enter into a contract that "greatly limited his ownership interest in the firm if he continued to drink."
He did continue to drink. He consumed a fifth of vodka on his way to the Kansas City International airport and continued to drink on the plane. He was "rather disruptive" and was met by security while getting off the plane. He was arrested for misdemeanors but then damaged a window in the police car, which drew a felony beef. The felony charge was dismissed when he pleaded guilty to the misdemeanor charges. The firm fired him after the arrest.
He entered into a sobriety contract with the Bar, but continued to drink. He was terminated from the Bar's program but avers that he has been sober since September 2009. The probation requires that he maintain sobriety and be subject to a practice monitor. (Mike Frisch)
Tenant From Hell Disbarred
The District of Columbia Court of Appeals disbarred an attorney convicted of theft and fraud offenses. The attorney rented an apartment, tendering an initial payment and security deposit with a dishonored check. She eventually paid a total of two months rent and security deposit while she occupied the premises for ten months.
She sublet the apartment to a person who paid her three months of rent for less than two months of occupancy. The subtenant vacated the apartment when he learned that the attorney was not in fact the landlord. The attorney then sued the real landlords "regarding the premises" and they countersued seeking to evict her. A court order was entered prohibiting the attorney from advertising, renting or collecting rent on the premises. The attorney violated the court order, rented the premises and received a rent check. The convictions involved theft from the landlords and first subtenant and fraud on the second subtenant as well as contempt.
The court found that the crimes involved moral turpitude, which requires disbarment in the District. (Mike Frisch)
June 10, 2010
An Honest Man--Not
The Florida Supreme Court affirmed a referee's findings of misconduct but raised the sanction from a proposed 18-month suspension to a three year term. The attorney had represented a client and his company in proceedings brought by the Commodity Futures Trading Commission alleging that the client had defrauded customers, converted customer funds, and violated federal registration requirements. The client was subject to an injunction that prohibited his participation in commodities transactions.
Several years later, the client advertised for new business partners (read:suckers). A potential partner responded. In response to a query, the attorney told the potential partner of the client that the client was an "honest man." The attorney failed to disclose the court order prohibiting certain business transactions. The attorney also failed to disclose the client's prior criminal record. Both the court order and criminal history were matters of public record. The attorney then represented adverse interests in the matter.
The referee found that the "honest man" remark "triggered a duty to reveal to [the prospective partner] the negative information he had concerning [the client] that could have impacted [his] decision to go into business with [the client]." The attorney admitted that the remark was intended to convince the prospective partner to proceed with the proposed deal. He also admitted that he had an interest in fees that the deal would generate. (Mike Frisch)
Duty To Memorialize Violated
A reciprocal public censure was imposed by the New York Appellate Division for the second Judicial department based on a reprimand imposed in New Jersey. The court set out the key facts:
The respondent served as counsel to the City of Paterson Zoning Board of Adjustment (hereinafter the Board) from 1989 to 2006. It was alleged that, as counsel to the Board, the respondent was responsible for ensuring that the Board complied with the resolution/requirements for New Jersey Statutes Annotated 40:55D-10g requiring Zoning Boards to memorialize their decisions via resolutions, and that his failure to do so contributed to the Board's remaining statutorily noncompliant.
The City had a long-standing tradition of using the Board's minutes to memorialize its actions because requiring resolutions for all applications to the Board was too time-consuming and expensive. Therefore, Edward Murphy, the Board's Chair from 1975 to 2001, and the former mayor had orally agreed to shift the burden of producing those documents to the city attorney, who would then work from the Board's transcribed minutes. In 1989, Murphy advised the respondent not to prepare memorialization resolutions unless it appeared that the applicant would be filing an appeal from the Board's determination. Murphy unsuccessfully tried to persuade the City to allocate additional funds for an attorney to draft memorialization resolutions.
The respondent never prepared resolutions and refused to do so when ordered by two judges and at least two Board chairs. On two occasions during the respondent's tenure as the Board's counsel, the Board's practice of using its minutes in lieu of memorialization resolutions was the subject of litigation and resulted in rulings against the Board in 1995 and 1997. The Board, nonetheless, decided to proceed with its practice of not memorializing resolutions.
The New Jersey District IIB Ethics Committee (hereinafter the Ethics Committee) found that the respondent had failed to comply with the statute, the Board's instructions to prepare the resolutions, and the two court orders. The Ethics Committee also found that the respondent failed to take remedial action to prevent the Board from conducting its business in violation of the law. The Ethics Committee recommended a reprimand.
Upon de novo review, the Review Board found, by clear and convincing evidence, that the respondent's conduct was unethical. As the Board's attorney, the respondent had an obligation to advise his client that its practice of not preparing resolutions was a violation of the Land Use Law. Had he done so, and had the Board persisted in its longstanding practice, the respondent's duty was to withdraw as the Board's counsel. While it may not have been the respondent's responsibility to memorialize the resolutions, he was required to proceed in the best interest of the Board. The Review Board concluded that this included an obligation to advise the Board that it was in violation of the law and to explain the consequences thereof. In aggravation, the Review Board considered the respondent's misrepresentations to successive Board members, both by silence and affirmation, of the two prior court orders. In mitigation, the Review Board noted the respondent's previously unblemished record, and decided upon a reprimand as the appropriate sanction.
New Jersey had found violations of Rules 1.13(b) and 8.4(d). (Mike Frisch)
The Meaning Of Rule 4.2
The Oregon Supreme Court has imposed a public reprimand of an attorney for a violation of the rule that prohibits communication with a represented person on the subject matter of the representation. The attorney had taken the represented person's deposition without notice to counsel. The court rejected a variety of theories as to why the ethical rule was not violated:
RPC 4.2 does not prohibit all communications between a lawyer and a person represented by counsel. Rather, that rule prohibits communications between lawyers and represented persons only when (1) the communication occurs in the course of the lawyer's representation of a client or the lawyer's interests; (2) the person with whom the lawyer communicates is represented; (3) the communication is on the subject of both the lawyer's representation and the person's representation; and (4) the lawyer knows that the person is represented on that subject.
In this case, there is no dispute that the accused communicated with Fahey in the course of representing Jewett-Cameron, that Fahey was represented in the criminal action, and that the accused knew that he was communicating with Fahey on the subject on which Fahey was represented. The only question is whether the communication concerned the subject on which the accused represented Jewett-Cameron and on which Coit represented Fahey. As a factual matter, the answer to that question is "yes." The subject on which the accused represented Jewett-Cameron was Greenwood's alleged overstatement of its inventory. The accused sought to recover part of the purchase price from Greenwood on the theory that Greenwood's assets were less than its books showed. Coit represented Fahey on that same subject. The criminal action was based on Fahey's embezzlement from Greenwood, which resulted in Greenwood's overstated inventory. Factually, each lawyer's representation involved a common subject -- whether Greenwood's books were overstated.
The accused does not dispute that factual proposition. He argues instead that the word "subject" in RPC 4.2 means "matter" and that "matter" means the specific legal matter on which he was representing his client. More specifically, the accused argues that his communication with Fahey would violate RPC 4.2 only if Coit represented Fahey in Jewett-Cameron's action against Greenwood and if the accused knew that fact.
The accused's argument is difficult to square with the text of the rule. The rule uses the word "subject," not "matter." In this context, "subject" means
"something concerning which something is said or done * * * <let's say no more on that ~> <treated religion as the first and greatest of ~s> <the ~ of your essay> < a ~ worth of a great dramatist>."
The context of RPC 4.2 is also at odds with the accused's interpretation of the term "subject." See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (explaining that the context for interpreting a statute's text includes "'the preexisting common law and the statutory framework within which the law was enacted'" (quoting Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998)). RPC 4.2 is generally modeled on American Bar Association (ABA) Model Rule 4.2 (2002). Oregon's rule differs from the ABA model rule in at least one respect. The model rule prohibits a lawyer from communicating with a "person the lawyer knows to be represented by another lawyer in the matter." The Oregon rule prohibits a lawyer from communicating with a person "the lawyer knows to be represented by a lawyer on that subject."
The Oregon rule's use of "subject" rather than the defined term "matter" cuts against the accused's argument that we should substitute "matter" for "subject." (citation omitted) Indeed, RPC 4.2 continues the use of the term "subject" found in former DR 7-104 (1984). In construing a former version of the rule, this court held that it prohibited a district attorney from communicating with a defendant regarding the defendant's participation as an undercover drug informant when the district attorney knew that the defendant was represented on pending rape and robbery charges. In re Burrows, 291 Or 135, 143-44, 629 P2d 820 (1981). In that case, the accused argued that his communications did not relate to the rape or the robbery charges, the particular matters on which the defendant was represented, "but to the separate subject matter of undercover drug activities." Id. at 142. This court disagreed. It reasoned that, because it was clear that the defendant's participation as an undercover informant would affect his sentencing in the rape and robbery proceedings, "'the subject matter of the [accused's] communications necessarily involved the pending criminal charges.'" Id. at 143-44 (quoting and adopting the trial panel's findings).
Architect And Attorney
The New York Appellate Division for the Third Judicial Department imposed a two-year suspension of an attorney convicted of felony false statements to the FBI during an interview conducted as part of a bribery investigation. The attorney was sentenced to probation and fined $25,000. He was suspended on an interim basis in New Jersey. The court here concluded
Although quite serious, respondent's conviction is mitigated by his otherwise laudable personal background and prior excellent professional reputation both as an architect and lawyer. Additionally, he voluntarily and expeditiously disclosed to the United States attorney's Office that he had made the false statements and thereafter provided extensive and effective cooperation with the government's local corruption investigations. Notably, the sentencing judge extended significant leniency to respondent on account of such cooperation.
The attorney reported that his architect's license was suspended for three years but that the suspension was stayed. (Mike Frisch)
The Constitutional Right To Tell Fortunes
The Maryland Court of Appeals has held that a county ordinance that prohibits fortunetelling for pay violates the free speech rights of a fortuneteller. A dissent would find that the legislative determination that the provision was no more restrictive than necessary
...to further the County's expressed and significant interest in preventing fraud from being perpetrated on its citizens. The Majority opinion, deeming itself more insightful about the nature of fortunetelling than the largely factual assessment of the [county] government, substitutes its judgment for that of the legislative body. I, on the other hand, would hold that [the provision] does not restrict impermissibly Appellant's First Amendment rights.
June 9, 2010
Conference: Business Complexity and the Global Business Leader
Posted by Jeff Lipshaw
Suffolk University's Institute for Executive Education and Sawyer Business School are sponsoring a conference entitled Business Complexity and the Global Business Leader, to be held at Suffolk's Boston campus, October 18-20, 2010. Here's a description of the aims of the conference:
Global leaders are faced with business complexity of unprecedented scale and interconnectedness. The goal of the conference is to bring together academicians and business leaders from around the world to expand our thinking and learning in a new era of business incorporating complexity science. The conference is organized around three main themes: corporate longevity/sustainability; innovation; and self-organization.
The website includes a call for papers with a full draft deadline of July 30, 2010. Papers should address the corporation as a complex adaptive system that evolves within a complex global business ecosystem, covering one or more of the conference themes: corporate longevity, self-organization, and innovation. Papers will be reviewed by the conference paper review committee with acceptances to be announced by September 24, 2010. All accepted papers will be published in the conference proceedings and posted on the conference's web site.
There's also an interesting and eclectic lineup of keynote speakers, including Geoffrey West (pictured above), theoretical physicist and the past president of the Santa Fe Institute, Phil Budden, Britain's Consul General to New England, and Juan Perez Mercader, of the Spain's Centro de Astrobiology and Harvard's Origins of Life Initiative.
The Vermont Professional Conduct Board imposed a reprimand and probation of an attorney who charged an excessive fee and failed to reduce a contingent fee to writing. The attorney was a "seasoned practitioner" with over 36 years at the Vermont Bar.
The client had been seriously injured in a trampoline accident. He was represented by two lawyers for a 1/3 contingent fee. The sanctioned attorney represented the client in divorce and related proceedings and never entered an appearance in the accident litigation. He did give the client some free advice and facilitated communication with the attorney handling the matter. The attorney agreed to continue in this role for a 12% share of any gross recovery, which was found to be excessive. The Board majority found that the attorney's limited role in the accident litigation made the fee (which was not paid after there was a substantial recovery) excessive.
A dissent would find no violation. (Mike Frisch)
Reinstated With A Warning
The Oklahoma Supreme Court reinstated an attorney suspended for non-payment of dues notwithstanding its conclusion that she had engaged in the unauthorized practice of law in Texas. The attorney had left practice to become sales director for Mary Kay Cosmetics. The court found her work in Texas involved unauthorized practice:
Based on Petitioner's conduct prior to her administrative suspension, it appears her actions ran afoul of ORPC Rule 5.5, which governs the unauthorized practice of law in the context of multi-jurisdictional practice. Rule 5.5(a) mandates that "[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so." Okla. Stat. tit. 5, ch. 1, app. 3-A (Supp. 2002). First, Petitioner is not admitted to practice in Texas where she established a continuous and systematic presence via her only office. Second, the legal services which Petitioner rendered can hardly be deemed limited to federal law given the fact that bankruptcy law is inextricably intertwined with state law. Third, the act of assessing the legal position of Texas debtors through analysis, interview, or explanation of legal rights and then representing only those clients whose cases squarely fit within the federal court's jurisdiction is no shield against Petitioner's unauthorized activities within Texas.
However, reinstatement was granted:
The Petitioner has advised, under oath, that she intends to resume the same activities. The Petitioner is warned that this conduct in the future would constitute the unauthorized practice of law and would warrant disciplinary action. Effective upon the payment of $533.03, the costs incurred in this reinstatement proceeding, it is ordered that petitioner...be reinstated to membership in the OBA and her name placed on the Roll of Attorneys licensed to practice law in Oklahoma. It is further ordered that Petitioner shall pay said costs and current membership dues within twenty days from the date this opinion is filed with the Clerk of this Court.
One justice dissented:
Petitioner for reinstatement seeks renewal of her Oklahoma license for use collateral to that which the license is to serve. Its legal purpose is to authorize a person to practice law in Oklahoma. She seeks it to serve as primary state bar membership for needed legal support of her federal bankruptcy practice in Texas. In my view, an Oklahoma license to practice law should not be issued when it is apparent that the applying licensee's Texas bankruptcy practice has no proven nexus to a sustained stream of Oklahoma clientele.
I must therefore recede from today's reinstatement of petitioner's Oklahoma license to practice law.
Agarwal & Simonson on Public Interest Lawyering and Instruction
Posted by Alan Childress
From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:
In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.
This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.
Duty To Warn Process Server
A process server who was hired by a law firm to serve the defendant in a divorce case was violently attacked by the servee. The law firm had attached to the process the following warning: "Be forewarned he's an ex-cop with anger issues." The process server read the papers but saw nothing to indicate that the defendant was violent or dangerous. When he accomplished service, he was "severely beaten" by the defendant.
The process server sued the law firm on theories of intentional infliction of emotional distress/outrageous conduct, negligent misrepresentation and negligence. The trial court dismissed the action.
The Tennessee Court of Appeals affirmed the dismissal save for the negligence claim, which was remanded for further proceedings. The process server had alleged that three orders of protection had been entered one week before the assault and that a law firm attorney was counsel in 14 cases against the defendant. The plaintiff's averment that the attorney knew or should have known that an attack was reasonably foreseeable under the circumstances was sufficient to state a claim. (Mike Frisch)
June 8, 2010
In And Out
An attorney admitted to practice in 2006 had his license to practice law revoked by the Wisconsin Supreme Court. In less than five years at the bar, the attorney had racked up 55 charges of ethical violations in 10 separate matters. The attorney had been suspended in 2009 for failure to cooperate in the disciplinary matters and did not participate in the ensuing proceedings. He had no prior discipline (and precious little time to accumulate a record).
The referee noted:
This case portrays extremely troublesome conduct on the part of an attorney admitted to practice for only a few years. Not only did he take fees from clients under false pretenses, he totally abandoned his responsibilities toward those clients and absconded with the money. He has not cooperated at all with the investigation or prosecution of these proceedings against him. The evidence suggests that Attorney Fisher has left the country. The Referee and counsel for OLR are simply unable to locate him. Although he has no prior disciplinary record, his actions are egregious and absolutely unacceptable.
Not sure I've seen such a short career with so many charges leading to revocation. (Mike Frisch)
The Sounds Of Silence
The legal concept of silence has received a fair amount of attention in recent days. The Supreme Court held last week that silence may constitute a waiver of Miranda rights. We reported a case from the Nevada Supreme Court yesterday that found that a prosecutor's silence in responding to an argument on appeal conceded the point to the defense.
Today the Maryland Court of Appeals held that the silence of the trial judge in rendering a verdict on several counts in a vehicular homicide bench trial required a remand to the Court of Special Appeals to determine whether the charged (but unresolved by verdict) offenses were lesser included offenses of counts for which the defendant had been convicted. If the charged offenses are not lesser included offenses, the docket entries will be corrected. The Court of Special Appeals had held that the silence on the unconvicted counts amounted to an acquittal.
Judge Harrell concurred and dissented:
As is known to most persons who have been engaged to be married and by many professional athletes and rock-and-roll stars with pierced ears, diamonda are graded, among other things, for clarity; that is, the relative absence or appearance of internal "inclusions" and external "blemishes." Under the graiding system of the Gemological Institute of America (GIA), a "flawless" catagory diamond (no flaws visible under 10X magnification) receives a grade of "FL." The next highest catagory, "internally flawless" (meaning no inclusions and only small blemishes visible under the same magnification), receives the grade "IF." If the record of the present case were a diamond, it would be one of "IF" clarity regarding the intention of the trial judge in rendering his verdict.
The judge, joined by two colleagues, would find that the trial court had rendered verdicts and that the remand was a windfall to the defendant. (Mike Frisch)
June 7, 2010
Silence Confesses Error
The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:
In this appeal, we have the duty to publicly reiterate the importance of submitting attentive appellate briefs and the unfortunate obligation to address the unforgiving consequences resulting from a respondent’s failure to respond to relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk’s alleged constitutional violation, it effectively confessed error under NRAP 31(d). We agree and reverse and remand for a new trial.
The State failed to respond to a critical issue:
We recognize that the State filed a lengthy answering brief addressing Polk’s other issues on appeal; however, the State failed to address Polk’s argument that his constitutional right to confrontation under Crawford and Melendez-Diaz was violated. This is a significant constitutional issue that compels a response. The issue was clearly raised in Polk’s opening brief and reply brief, the argument regarding it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State filed its answering brief six weeks later, on September 10, 2009. In Polk’s reply brief, he explicitly referenced the State’s failure to directly address the constitutional issue. Even after being notified of its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its response and elected to wait until oral argument to address the constitutional issue or harmless error. Such appellate practice causes prejudice to Polk’s ability to adequately prepare for or respond during oral argument.
Accordingly, we grant Polk’s oral motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument. Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal, but the State failed to address or even assert that any potential violation was harmless error, we invoke our authority under NRAP 31(d) and consider the State’s silence to be a confession of error on this issue.
Georgia Lawyers Exempt From Debt Practices investigation
A majority of the Georgia Supreme Court held today that the Administrator of the state's Fair Business Practices Act has no authority to compel a law firm engaged in debt collection on behalf of creditors to comply with his investigative demands. The majority found that
...the nature of ...representation of clients in a legal capacity is not destroyed by the utilization of "staffing, training, equipment or support personnel." (citation omitted) Indeed, the manner in which such support is used and managed in the representation of clients is part of the actual practice of law and, therefore, does not involve the entrepreneurial or commercial aspects of professional practice within the contemplation of the [Act].
Justice Melton, joined by Justices Hines and Nahmias, dissented:
Because the [Act] is a law of general application that has nothing to do with impermissibly regulating the practice of law in violation of separation of powers, I must respectfull dissent from the majority's erroneous conclusion that the remedies relating to [the law firm's] allegedly abusive debt collection practices "must be found outside the [Act]." (quoting the majority) Investigating violations of the law that happen to involve lawyers does not automatically amount to impermissibly "regulating" the practice of law, as a lawyer who violates the law is just as subject to investigation as any other common offender.
The Georgia Supreme Court has rejected a second petition for voluntary discipline of an attorney who had fraudulently collected over $500,000 from the firm where he was employed as an associate. He sumitted false invoices for outside vendors and performed the services himself. The misconduct took place over a six-year period. When the misconduct was discovered in a billing review, he was terminated and promptly repaid $526,922.
The court previously had rejected a petition (supported by the State Bar) for a six to 12-month suspension. The court here rejected a petition for a two to four-year suspension with reinstatement conditioned upon a favorable recommendation from a psychologist or psychiatrist that he is fit to practice law. The court found the "extent of [the attorney's] fraudulent and deceptive conduct" and the mitigation offered in connection makes the proposed suspension an "inappropriate sanction..." The State Bar now objects to any sanction short of disbarment.
This report from the ABA Journal notes that the attorney had been an associate at Greenberg Traurig. (Mike Frisch)
June 6, 2010
Should a lawyer withdraw at the first sign that a client is lying?
I muse about the issue over at my blog (here).
(Posted by Nancy Rapoport.)
"Boy, Am I Stupid"
The above-quoted self-assessment comes from charges recently filed by the Illinois Administrator against an attorney. The complaint alleges that the attorney received items and currency that he passed to inmates that were being held in the detention areas of the Criminal Courts Building in Chicago. After several such arrangements, the attorney delivered a "stain" that combined cannabis and tobacco to an inmate (who the attorney did not represent) by calling his name and passing the contraband.
The inmate got caught and a sting operation was set up. The attorney was arrested when he was leaving the courtroom and made the statement at that time. The attorney pleaded guilty to delivery of contraband into the facility and was sentenced to 18 months probation. (Mike Frisch)