July 3, 2010
The Issue is, What is Chicken?
Posted by Jeff Lipshaw
Now that I can print out the New York Times crossword puzzle from the online edition, I don't often venture into town, up here in northern Michigan, for a newspaper. So I kind of lose track of the great events of the world for a couple months, which probably isn't such a bad thing. Alene (that's my beautiful spouse) likes to pick up the Petoskey News-Review on Friday, because it has a listing of the entertainments available in the finer and not-so-finer establishments of Charlevoix and Emmet counties.
My son, Matthew, just pointed out to me yesterday's lead story, prominently above the fold in the left-hand column: Beaker: Pet rooster to get a new home in Petoskey. (That's Beaker, pictured left.) You may wonder why I've chosen to highlight Beaker in the Legal Profession Blog, and it's certainly not to mock the newsworthiness of articles in the local paper. No, this is the kind of real world legal issue that law professors too seldom focus upon. The Emmet County 90th District Court found Beaker's owners in violation of having a farm animal on a residential property smaller than the county requirements, and they appealed this to the 57th Circuit Court. (That's the court of general jurisdiction in Michigan.) In a case worthy of H.L.A. Hart's vehicles in the park, or the famous question in Frigalament, Inc. to which the title of this post refers, the owners contended that Beaker was a pet, not a farm animal, and should be exempt from the county ordinance requiring a property size of at least two acres to operate a farm.
What makes this story heart-wrenching is that Beaker has a hooked foot and has been nearly blind since having an accident as a chick. But the owners decided not to appeal to the Michigan Court of Appeals, and have found Beaker a new home at the Second Chance Ranch and Rescue. The vet who facilitated resettlement reported, "Beaker seemed to be unfazed by the new surroundings, scratching at feed and 'acting like a chicken.'"
I find myself completely unable to find an appropriate concluding bon mot for this post.
July 2, 2010
The Iowa Supreme Court has imposed a suspension without possibility of reinstatement for three months in a matter where the attorney had been convicted on plea of guilty to six counts of invasion of privacy-nudity. The conduct involved repeated "peeping tom" incidents at a home occupied by three women:
Here, [the attorney] engaged in a pattern of criminal conduct by repeatedly looking into the victims' windows. In doing so, he violated Doe's, Roe's, and Poe's privacy, and caused them emotional distress. Although his conduct was compulsive, the record also establishes he intentionally and knowingly invaded the privacy of these women. This conduct also raises serious misgivings about whether [he] understands the concept of privacy and respects the law protecting privacy rights.
The court sets out in detail the efforts taken to identify the attorney as the perpetrator. A surveillance photograph was taken outside of the house. The police had a license number of a car seen in the area that the attorney had recently purchased from a friend. The surveillance photo was compared to his license driver's photo and a match was made. The attorney admitted the conduct when confronted with the evidence.
The court noted that the attorney had entered entered treatment and that the prognosis suggests a slim chance of future similar acts.The court also found that the conduct did not violate the "conduct prejudicial to the administration of justice" rule.
The attorney was admitted in 1987 and was on inactive status at the time of the crimes. He was managing a four-state newspaper distribution business and found the house through his newspaper deliveries. The house was owned by an 80 year old woman who had two tenants in their twenties. One of the tenants was so frightened that she covered the windows with blankets and dressed in a closet. The other tenant quit her internship and moved back home as a result of fear caused by the incidents. This victim also declined to press criminal charges for fear of the attorney.
Notably, the Grievance Commission had found three rules violations and recommended a two-year period before the attorney could seek reinstatement. The court found a single rule violation. (Mike Frisch)
Failure To Supervise Incarcerated Legal Assistant
The Indiana Supreme Court has imposed a private reprimand (the case is styled "In re Anonymous") in a matter in which the attorney had hired a legal assistant "whose incarceration made it impossible for [the attorney] to ensure that the assistant's conduct was compatible with [the attorney's] professional obligations to his client."
The court indicated that a more severe sanction might well have been appropriate absent the attorney's consent to the discipline. (Mike Frisch)
From the July 2010 online edition of the California Bar Journal:
[An attorney] was suspended for four years, stayed, with an actual two-year suspension and until he proves his rehabilitation, and he was ordered to take the MPRE and comply with rule 9.20. The order took effect Nov. 13, 2009.
In 2008, [he] was convicted in Indiana of one count of felony cocaine possession, a crime that involved moral turpitude. He accepted crack cocaine from a client as payment of a $175 bill. [He] asked for an “eight ball,” known to be an eighth of an ounce, or 3.5 grams, of cocaine.
In mitigation, he had no discipline record in 35 years of practice. He did not participate in the bar’s disciplinary proceedings.
Is this an example of a fee that is illegal but not excessive? (Mike Frisch)
July 1, 2010
Hourly Fees As Life Capital: Not
The Florida Supreme Court rejected a referee's proposed six-month suspension and slammed the attorney with permanent disbarment. The attorney refuses to file and pay income tax on the income generated from his law practice.
His view: "his time was his life capital and, in practicing law, he was trading his life capital for an hourly fee, both of equal value." The court found that this contention was "devoid of merit and lacks any basis in established law."
The attorney had not helped his cause by advising the court at oral argument that he had no intention of paying taxes in the future. The court rejected the contention that the absence of a criminal conviction precluded discipline. The court concluded that the proposed short suspension was unduly lenient in light of the attorney's expressed intention to violate tax laws
In the case currently under consideration, he has openly declared his intention at oral argument to persist in refusing to file income tax returns "[u[nless the law changes or unless someone can show me a law that makes me clearly liable for income tax, for federal income tax"...By his own voluntary actions, [he] has forfeited his privilege to practice law.
The only appropriate sanction under these circumstances-cumulative misconduct and a persistent course of unrepentant misconduct-is permanent disbarment from the practice of law.
Impasse At Wisconsin Supreme Court
The Wisconsin Supreme Court has issued opinions concerning allegations that Justice Michael Gableman violated canons of judicial ethics in campaigning for the court. Three justices would dismiss the charges:
Three members of the court, Justice Prosser, Justice Roggensack and Justice Ziegler, agree with the recommendation of the three-judge Panel that the Commission's complaint against Justice Gableman must be dismissed. We agree with the Panel's recommendation because after conducting an independent review of the record and considering the arguments of counsel, we have concluded that the Commission failed to establish, by evidence that is clear, satisfactory and convincing, that Justice Michael J. Gableman violated SCR 60.06(3)(c).
The campaign advertisement that gave rise to the Commission's complaint against Justice Gableman and the governmental rule, SCR 60.06(3)(c), by which the Commission seeks to punish Justice Gableman for that advertisement must be examined according to the commands of the First Amendment. As the United States Supreme Court has explained, the First Amendment applies to judicial elections and those canons of judicial ethics that states seek to apply to judicial elections. Republican Party, 536
at 788. We acknowledge that the advertisement run by Justice Gableman's campaign committee was distasteful; however, the First Amendment prevents the government from stifling speech, even when that speech is distasteful. R.A.V., 505 U.S. at 380, 391. The United States Supreme Court has established the parameters of the First Amendment's protections of campaign speech that we have followed in our decision. U.S.
In order to meet the burden of proof assigned to the Commission by Wis. Stat. § 757.89, at least four justices must conclude that the advertisement by Justice Gableman's campaign committee violated SCR 60.06(3)(c), when SCR 60.06(3)(c) is interpreted and applied consistent with the commands of the First Amendment. The Commission has not met that burden of proof. Accordingly, we anticipate that the Commission, or the Commission and Justice Gableman together, promptly will file a motion to dismiss the complaint against Justice Gableman.
Chief Justice Abrahamson, joined by two justices took a different view:
It is clear that the court is equally divided regarding the disposition of the matter. No four justices have voted either to accept or to reject the Judicial Conduct Panel's recommendations, nor have four justices agreed on Justice Gableman's motion for summary judgment or any disposition of the Judicial Commission's complaint. No action can therefore be taken on the Panel's recommendation. The Judicial Commission has failed to obtain a majority of justices to reject the recommendation of the Panel. Under these circumstances, the Panel is relieved of any further responsibility in this matter, and we remand the matter to the Judicial Commission with directions to request a jury hearing...
This analysis from WisPolitics.com:
Milwaukee: Late last night the Wisconsin State Supreme Court split 3-3 on the complaint against Justice Michael Gableman for running a deliberately false and misleading campaign ad.
The complaint, which was originally filed by Citizen Action of Wisconsin in March 2008, maintains that Justice Gableman made false and deliberately misleading statements in a campaign ad directed at Justice Louis Butler, violating the Wisconsin Code of Judicial Conduct. The ad, which sparked outrage from the legal community, editorial boards, and the public at large, was compared by many to the infamous “Willy Horton” ads. It falsely charged that Justice Butler’s actions had led to the release of a felon who committed another crime. In October 2008 the Wisconsin Judicial Commission agreed with the Citizen Action complaint, ruling that an attack ad by Michael Gableman showed “reckless disregard for the truth” and constitutes “judicial misconduct.” The Judicial Commission found the ad to be willfully false, and a clear violation of the Wisconsin Code of Judicial Conduct.
“The sharp division of the State Supreme Court over one of the most odious ads in Wisconsin campaign history is yet another stunning turn of events in a case that has drawn national attention,” said Robert Kraig, Executive Director of Citizen Action of Wisconsin. “We agree with Chief Justice Abrahamson and Justices Bradley and Crooks that the conduct of Gableman undermines the public reputation of the court, and that the Judicial Commission should hold a jury trial on the charges.”
In a well reasoned opinion released last night, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks found that the ad was willfully misleading and thus violated the Judicial Code of Conduct. "False statements knowingly made or false statements made in reckless disregard of their truth or falsity are not protected by the First Amendment," the justices concluded.
“The Judicial Code expects judges to have high standards,” Kraig continued. “This is why the Code provides that a candidate for judge cannot knowingly or with reckless disregard misrepresent a fact concerning an opponent. Clearly anyone seeing the Gableman ad knows it was not true. It was grossly misleading.”
Red and Green Squiggly Line Loops in Microsoft Word
Posted by Jeff Lipshaw
Lawyers and law professors do a lot of writing in Word. I like the red squiggly lines, because it's usually a good sign that I've either misspelled something or am using a name or expression that I ought to add to my dictionary. I don't like the green squiggly lines that signify syntax or grammar or usage errors because, while they are sometimes helpful (as in identifying passive voice when I shouldn't use it), clicking "ignore" doesn't really make them go away.
Word just did something to me that I've not seen before. I was writing a book chapter with a sentence that used the word "Midwestern" to describe a law firm. When I typed it with a lower case "m", it gave me a red squiggly line, suggesting that I change it to "Midwestern," but when I did that, it gave me a green squiggly line suggesting that I change it back to "midwestern."
I wish I could learn simply to ignore the green squiggly lines.
It Is, Sir, As I Have Said, A Small College...
The New Hampshire Supreme Court affirmed the grant of summary judgment to the trustees of Dartmouth College in a breach of contact dispute brought by a tenured faculty member in the theater department. The department had been placed in "receivership" because of the "contentious atmosphere within the department." A confidential letter suggested that the professor was a "corrosive influence." The professor was offered an early retirement package and a change in teaching assignment. She then filed an EEOC complaint, which was dismissed.
Here, the court agreed with the trial court that the professor's reassignment in duties was not a "major change" in employment and not a disciplinary action that triggered procedural rights. The professor had been neither terminated nor placed on involuntary leave. Rather, she had been assigned to teach writing courses.
The First Circuit affirmed the dismissal of the EEOC claim.
Here's a post on the dispute from the Dartmouth Review. Their take on the situation in January 2006:
Perhaps most stunning, however, is the disdain that both Prof. Sabinson and the administration share for the First-Year Writing Program. Sabinson, who herself is the first to admit that “I am not an expository writer and cannot competently teach the First-Year Writing Seminars,” was forced in 2005 to accept a course-load of three writing seminars for this academic year. Sabinson regards the writing seminars as “harassment” that were designed to “humiliate” her—hardly the way one would expect a member of the faculty to approach one of Dartmouth’s most important tasks, that of teaching undergraduates basic writing skills. Moreover, she is by no means the only one with such an opinion. More grave, though, is the fact that writing seminar assignments are fobbed off on professors who adamantly maintain that they are not capable of teaching them. The administration’s action towards Mara Sabinson shows nothing less than a callous disregard for the writing program, furthering the already-existing impression among many faculty members: that writing classes are a pain to teach and detrimental to professional advancement.
And at the same time that Parkhurst is playing politics with First-Year Writing seminars, the Departmental Editing Program has fallen by the wayside. Created by the always-querulous Joe Asch ’79 in 2002, the DEP provided a common-sense solution to Dartmouth’s writing program: hiring professionals (mainly former high school English teachers) for each department who have knowledge of its unique needs and writing style and are solely dedicated to improving student prose. Asch himself funded the editors as a pilot program for four years, to rave reviews from students and faculty alike. But now the administration has told him thanks, but no thanks—they have no desire to fund the editors themselves; they’ve got the Student Center for Research Writing, and Information Technology (RWiT) already. Never mind that RWiT’s method of student writing tutors suffered a “scathing” outside review by professors from other Ivy League professors in 2002. The administration’s writing program policy thus boils down to forcing professors who don’t know writing to teach it, while turning away talented editors who do want to teach writing. And they wonder why student prose is so tortuous?
The root problem of much of the Sabinson case, as it is for so many other problems at the College (chief among them the recent budget imbroglios), is the administration’s culture of secrecy. A certain amount of secrecy obviously needs to be preserved in the administration’s decisions—tenure decisions, for instance, are best kept under wraps. But simple matters like student complaints about professors, dissatisfaction with teaching styles, and the determination of how writing at the College will be taught can and should be made in the open. If administrators spent a little more time explaining their decision-making processes to the public, they might save themselves a lot of future embarrassment and lawsuits.
Read Before Signing
The Indiana Supreme Court imposed a public reprimand in a matter in which the attorney had secured a deferred prosecution of a Florida battery charge against his then 19 year old son in 2001. The son was arrested in Indiana on a drunk driving charge. The attorney was able to secure a deferred prosecution of that charge without disclosing the Florida matter. The attorney signed an agreement that represented that the son had no prior arrests. He claimed he did not read the agreement he had signed but relied upon past agreements "which, in his experience, did not contain such a statement."
The court found that the attorney, an experienced defense lawyer, made a choice to remain ignorant of the contents of the agreement and was responsible for any errors contained therein. The attorney had been in practice for over 30 years without prior incident.
Do we need to mention again the danger of flawed judgment when representing close family members? (Mike Frisch)
June 30, 2010
Disbarment Proposed For, Among Other Things, Lawyer's Battery Of His Father
The Louisiana Attorney Disciplinary Board has recommended disbarment for misconduct that included the theft by the attorney of a can of gasoline from his elderly father and battery against the father when he tried to prevent the theft. The incident led to the father having a broken finger. The attorney also conspired to commit forgery to obtain drugs. The board concluded that disbarment was appropriate even though it rejected findings that the attorney violated escrow obligations.
The board remanded findings that the attorney had committed perjury in the disciplinary matter. (Mike Frisch)
Wisconsin Marriage Decision
The Wisconsin Supreme Court held today that a voter and taxpayer has standing to challenge an amendment that provides that marriage can only be between a man and a woman. The court set out the facts:
In November 2006, the people of
approved the adoption of the following amendment to the Wisconsin Constitution: Wisconsin
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
In July 2007, William McConkey, a voter and taxpayer, filed suit alleging, among other things, that this amendment (the "marriage amendment") was submitted to the people in violation of the constitution's requirement that voters must be allowed to vote separately on separate amendments (the "separate amendment rule"). In other words, McConkey claimed that the two sentences of the marriage amendment constituted two amendments, not one, and that because voters were not able to vote for or against each sentence, the marriage amendment was not validly adopted. The Attorney General countered that McConkey did not have standing to bring this claim because he suffered no actual injury, and maintained that the amendment was adopted in conformity with the separate amendment rule.
The court held:
...the two propositions contained in the marriage amendment plainly relate to the subject of marriage. And as the text of the amendment and context of its adoption make clear, the general purpose of the marriage amendment is to preserve the legal status of marriage in
as between only one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose. Therefore, the marriage amendment does not violate the separate amendment rule of Article XII, Section 1 of the Wisconsin Constitution. Rather, the marriage amendment was adopted by the people of Wisconsin using the process prescribed by the constitution, and is properly now part of our constitution... Wisconsin
In summary, though the precise nature of McConkey's alleged injury is difficult to define, we conclude that the policy considerations underlying our standing doctrine support addressing the merits of McConkey's claim, which we therefore choose to do.
We hold that Article XIII, Section 13 of the Wisconsin Constitution——the marriage amendment——was adopted in conformity with the separate amendment rule in Article XII, Section 1 of the Wisconsin Constitution, which mandates that voters must be able to vote separately on separate amendments. Both sentences of the marriage amendment relate to marriage and tend to effect or carry out the same general purpose of preserving the legal status of marriage in
as between only one man and one woman. Wisconsin
From the web page of the Ohio Supreme Court on a recent ethics opinion:
Opinion 2010-3 addresses the following question: “As part of the settlement of a legal malpractice claim, is it proper for a lawyer to require a current or former client to withdraw a disciplinary grievance or to refrain from filing a disciplinary grievance?”
The opinion cited several disciplinary cases as proof that an attempt by a lawyer to hinder the disciplinary process is improper.
“Such conduct constitutes conduct prejudicial to the administration of justice under Prof. Cond. Rule 8.4(d) and conduct adversely reflecting on fitness to practice law under Prof. Cond. Rule 8.4(h),” the opinion states.
“Further, in response to a demand for information by a disciplinary authority a lawyer is required by Prof. Cond. Rules 8.1(a) and 8.1(b) to respond truthfully and fully in the disciplinary matter including inquiry, investigation, and subsequent disciplinary proceeding. A lawyer’s attempts to avoid discipline hinder the disciplinary process.”
Both Sides Now
The North Carolina Supreme Court held that a trial court did not abuse its discretion when it revoked the pro hac vice status of two attorneys in litigation against Abbott Laboratories and a hospital when a child contracted a rare form of meningitis shortly after birth. The court reversed the Court of Appeals and held "that the North Carolina Rules of Professional Conduct do not limit the trial court's discretion to revoke pro hac vice status."
Abbott moved to disqualify counsel after admission had been granted. The issue related to a contact between plaintiff's counsel and defendant's expert in a case in Kentucky. Plaintiffs put into the record the state circuit court decision in that "factually similar" case. In that case, the circuit court found that the plaintiff's attorneys had contacted and retained the expert not knowing that Abbott had already done so. Abbott was not a party to the litigation at that juncture but was a potential defendant. The court found that plaintiff's attorney deliberately failed to advise the expert that Abbott might be sued in the case. As a result, the "expert found himself on both sides in [the case]." However, the Kentucky court denied the motion to disqualify.
The court here concluded that the trial court had the inherent authority to revoke the admission. The Court of Appeals had reached a contrary conclusion by focusing on the Rules of Professional Conduct and, in particular, the choice of law provisions of Rule 8.5. The court found that Rule 8.5 applies to a bar discipline matter. The trial court found an appearance of impropriety in the contact with the expert and that the conduct was "inconsistent with fair dealings as reflected by Rule 4.3 of the Rules of Professional Conduct." Those conclusions were sufficient to invoke the trial court's inherent authority to disqualify counsel.
The court also found sufficient evidence of involvement in the expert contact to justify disqualifying both attorneys. (Mike Frisch)
June 29, 2010
Making Matters Worse
The Pennsylvania Supreme Court accepted a consent two-year suspension in a disciplinary matter that arose in the wake of a six-month suspension imposed in 2008. The attorney agreed that he had accepted a new matter shortly before the effective date of the first suspension. He then filed a required affidavit that falsely concealed the new matter.
The violation came to light when the new client filed a bar complaint. (Mike Frisch)
"Obvious Disdain" Leads To Suspension With Fitness
The Illinois Review Board rejected a First Amendment defense to charges of making disparaging remarks about judicial officers and recommended a six-month suspension with reinstatement conditioned on further court order. The attorney represented a client in a custody matter. The board found that:
[Opposing] Attorney...and Judge Murphy testified that during the telephone conversation Respondent stated that he refused to appear before Judge Murphy. He yelled at Judge Murphy and said that he was a "narcissistic, maniacal, mental case, and should not be on the bench." Respondent denied that he raised his voice or that he used the phrase "mental case."
Following this incident, Judge Murphy entered an order requiring Respondent and his client to appear before him on February 21, 2008.
On February 12, 2008, Respondent sent Judge Murphy a letter stating as follows, in relevant part:
I must note further that during our telephone conference on February 8, 2008, you personally stated: "I have no problem with the matter being heard in LaSalle County." If that is correct, and no Motions are pending in Cook County, it is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict.
As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?
In another matter, the board found:
Respondent and his client appeared for a hearing before Administrative Law Judge (ALJ) Judy Heineken. The hearing pertained to allegations that [his client] had sexually abused a minor foster child who was in her care.
During the hearing, Respondent stated several times that ALJ Heineken only "pretended" to be impartial because she was employed by DCFS. Among other things, he stated DCFS was an adversary to his client "and also hires and employs the hearing officer who purports to be independent, which she obviously is not since she's employed by the same agency and under the same state umbrella." He further stated to ALJ Heineken, "Obviously, you're an advocate and adversary to my position in everything that's done here with regard to rules of evidence and your own rules."
Respondent also stated on the record to ALJ Heineken, "I'd be embarrassed to have to take such jobs," and, "Obviously you need to go find a job in the private sector in the real world instead of bothering people with this kind of stuff." Respondent referred to the DCFS proceeding several times as a "kangaroo court" and "a joke" and said that "[t]his is no more a fair hearing than they had in Russia when they were operating under the Soviet system."
ALJ Heineken found that DCFS proved one of the charges against [the client] but did not prove the second charge. Respondent appealed the decision, which the appellate court affirmed. The appellate court noted that Respondent constantly badgered ALJ Heineken and showed disrespect for her and the conduct of the proceeding.
Respondent testified that, by his comments, he simply meant to challenge existing law and that he was offended by the manner in which the proceedings took place.
As to sanction:
Respondent's conduct during the proceedings below supports the Administrator's position that a suspension UFO is appropriate. While facing possible discipline for making unfounded accusations and disparaging remarks about Judge Murphy and ALJ Heineken, he continued to make similar remarks about the Hearing Panel's objectivity and qualifications. This demonstrates to us that the disciplinary process has had no deterrent effect on Respondent, and he does not intend to abide by the Rules of Professional Conduct in the future. The court has imposed suspensions UFO in similar situations. (citations omitted) We conclude that Respondent's utter lack of understanding and remorse and his obvious disdain for the disciplinary system require a recommendation of a suspension UFO.
The attorney has no record of prior discipline. (Mike Frisch)
June 27, 2010
Reprimand For Attempt To Embarrass
The web page of the Massachusetts Board of Bar Examiners has a summary of a recent public reprimand of an attorney for misconduct in course of civil litigation. The attorney represented the defendant. After judgment had been entered against her client and execution proceedings, there were settlement discussions. Some unflattering information surfaced concerning one of the plaintiffs. Then:
By March 2008, settlement negotiations had broken down, and the plaintiffs were prepared to go forward with the sheriff’s sale. In the interim, one of the plaintiffs brought suit against a former lover seeking to enjoin her from filing false reports with criminal authorities alleging that he had raped and sexually abused her. In defense of the lawsuit, the former lover filed an opposition to which she attached e-mails received from the plaintiff. The woman’s allegations and the e-mails were scandalous and embarrassing. On August 31, 2006, the superior court issued a permanent injunction against the woman.
On March 7, 2008, the respondent wrote to plaintiffs’ counsel that she had come across the other lawsuit involving one of the plaintiffs and that including the woman’s allegations and other information in a motion for new trial in the case against the contractor could prove to be “embarrassing.” On March 11, 2008, the respondent wrote to plaintiffs’ counsel that she hoped the plaintiffs had taken the “time to consider the implications of my most recent correspondence” in deciding whether to resolve the matter with the respondent’s client.
The respondent’s conduct in using means that had no substantial purpose other than to embarrass one of the plaintiffs into agreeing to a settlement of the matter involving the respondent’s client violated Mass. R. Prof. C. 4.4 (a lawyer shall not use means that have no substantial purpose other than to embarrass a third person) and 8.4(d) (conduct prejudicial to the administration of justice) and (h) (conduct that adversely reflects on a lawyer’s fitness to practice law.)
Default Disbarment Proposed
The California Bar Journal reports proposed rule changes governing, among other things, attorneys who fail to participate in the disciplinary process:
Attorneys who do not participate in disciplinary proceedings against them could be subject to automatic disbarment under a proposal floated last month by the State Bar’s chief prosecutor. At the same time, the State Bar Court suggested a slightly different proposal that ultimately would hasten disbarment recommendations for lawyers who default. The bar board of governors sent out both proposals last month for input from interested parties.
They were part of a group of suggestions designed to streamline and simplify disciplinary procedures by both the prosecutor’s office and the court as well as to bring bar standards in line with case law. The Supreme Court has explicitly criticized the default procedure.
In his proposal, interim Chief Trial Counsel Russell Weiner wrote that disbarment would be imposed in default proceedings “unless the offense is so minimal in severity that imposing disbarment would be manifestly unjust and in those cases the discipline shall be at the high end of the applicable standard.”
Weiner also recommended separately that default should be categorized as a separate “aggravating circumstance” to be considered by a bar court judge in determining the level of discipline.
The bar court proposes to speed up disbarment in default cases rather than making it automatic. Currently, the road from default to disbarment can take many months — the bar attorney must file motions, the respondent can reply and a hearing may be held before the judge rules. Accused lawyers can go through two or three default proceedings before the hammer falls.
Under the new proposal, once the default is entered, the attorney will be placed on inactive status. If he or she does not move to set aside the default within a specified amount of time, bar lawyers can petition for disbarment.
State Bar Court Presiding Judge JoAnn Remke said the court proposes eight substantive changes that focus on two issues in addition to default — the discovery process and rules of evidence.
The court’s proposal requires a mandatory exchange of discovery modeled after the federal Rules of Civil Procedure and the process used by the Commission on Judicial Performance. The court could permit limited discovery and failure to disclose any required information would preclude its admissibility at trial.
The evidence standard would follow the Administrative Procedure Act, which allows only relevant and reliable evidence to be admitted. The standard currently is used by state agencies that oversee professional licenses, including dentists, engineers, physicians and pharmacists.
The chief prosecutor’s suggestions include adding or amending mitigating and aggravating factors, clarifications of suspension standards, and spells out the punishment for offenses involving entrusted funds or for lawyers who have sex with a client.
Although there is a so-called “three strikes” standard in discipline cases that requires disbarment on the third discipline “unless the most compelling mitigating circumstances clearly predominate.” Weiner said the courts have created four exceptions. He proposes requiring disbarment if:
- the attorney has two discrete prior disciplines;
- the prior discipline must have been “sufficiently serious”; and
- the current misconduct must be serious enough to justify an actual suspension in the absence of prior discipline or there is actual harm to the client.
The recommendation also eliminates the “most compelling mitigating circumstances” escape clause.
Several board members expressed opposition or concern about a proposal to consider a lawyer’s refusal to acknowledge the wrongful nature of his or her conduct as an aggravating factor. Ventura County governor Michael Tenenbaum said an acknowledgement of wrongdoing should be a mitigating factor but the converse should not be the case.
Young lawyer representative Micha Liberty said respondents “should be able to defend themselves,” and former State Bar Court Judge Michael Marcus, now a board member representing Los Angeles, said a court should not consider it aggravating when “a person is asserting his or her rights.”
Weiner explained that mitigation and aggravation are considered only after an attorney has been found culpable of wrongdoing and an “unreasonable insistence” that a lawyer has done nothing wrong could trigger an aggravating factor. “It’s very important,” he said, “that they give some recognition that what they did is wrong.”