July 10, 2010
Witness Tampering Conviction
An attorney who was convicted of federal offenses involving tampering with a witness was suspended for five years by the Pennsylvania Supreme Court. The attorney was retained to represent a defendant charged with bank robbery. The client wanted to cooperate and offered to set up a purported Mafia figure in a drug deal. A co-defendant in the bank robbery matter was visited in jail by the attorney, without notice to or permission from that person's counsel. The conviction of the attorney related to his attempts to arrange a false story in order to reduce his client's legal exposure. Federal authorities did not believe the story and wired the co-defendant when the attorney again visited him without telling his counsel.
The underlying criminal matter was the attorney's first federal criminal trial (presumably his second case had his name in the caption). He has a single state DUI jury trial prior to the underlying case, although he had ten years experience at the Bar. (Mike Frisch)
July 9, 2010
Judge Benched Or "Take Care Of My Shortstop"
The Nebraska Supreme Court concluded that suspension of a county judge "would be insufficient to correct the damage wrought by the respondent's behavior" and removed the judge from office. The respondent had served in the judicial office since 1991.
The judge had agreed to serve as an assistant coach for his daughter's softball team (the "Sensations"). He heard rumors that the coach was about to be arrested. The judge discussed these rumors with the county attorney and offered to pay restitution as "he had not wanted his daughter's team to be hurt by association with [an arrest]." He also spoke with a different prosecutor, offered to pay the restitution and said to tell the county attorney that the he would put the coach on "double secret probation."
The coach was charged with misdemeanor theft. The judge recused himself. The matter was set for a guilty plea and drew media attention. The judge suggested an early plea but the county attorney rejected the suggestion. The coach pled guilty and was sentenced.
When the school board initiated an action against the coach, the judge interceded and made a threat to a board member that he would be " 'making an enemy' he didn't want to make." The board member also is an attorney and regularly appeared before the judge. The judge confirmed the threat in a telephone conversation with the board member's law partners. He also confirmed that he was not joking. The judge then wrote a letter designed to help the coach keep her job.
But that's not all, folks. He had a case involving the team's shortstop, who was on juvenile probation. He recused himself from the matter after taking the assistant coach job but lobbied the county attorney "as a softball coach and not as a judge" to "take care of [his] shortstop." He also asked the judge who had the case if it was proceeding to disposition.
The court here found that the judge had allowed family to influence his judicial conduct and judgment. Removal from office was required as he had ignored warnings that his conduct was unethical and "demonstrated a disregard for ethical rules that a suspension cannot overcome." His course of conduct was such that several lawyers cannot have confidence in his fairness as a judge.
Additional information, and some revealing quotes from the judge, may be found in this post from the North Platte Bulletin. (Mike Frisch)
July 8, 2010
A Will For Jake Leno
The North Dakota Supreme Court found that an attorney had not engaged in a conflict of interest but had violated Rule 1.14 and imposed a 90-day suspension. The attorney had drafted a will for a person declared incompetent that benefitted his clients, the children of the testator:
The record shows [the attorney] knew Jake Leno had been declared incapacitated and GAPS [protective sevices] had been named his guardian with full authority over his legal matters. [The attorney] was present at the guardianship hearing. He reviewed all the documents indicating Jake Leno suffered from Parkinson's disease and short-term memory loss. He concedes it was his responsibility to communicate with Jake Leno's guardian. He failed to meet this responsibility, however. [The attorney's] understandable desire to give his client attention and respect does not overcome Jake Leno's incapacity to make legal decisions on his own behalf. [The attorney] did not look to Jake Leno's appointed representative, as required by N.D.R. Prof. Conduct 1.14, comment 5. [The attorney] persisted in executing a will that was invalid because of Jake Leno's incapacity. Furthermore, we do not ignore the fact the second will drafted by [the attorney] benefitted Ronald Leno and Randy Leno, [his] clients at the guardianship/conservatorship hearing. Clear and convincing evidence indicates [the attorney] violated N.D.R. Prof. Conduct 1.14.
There are concurring and dissenting opinions that would sustain the conflict of interest charges. (Mike Frisch)
Lawyer Gone Wild
The Florida Supreme Court imposed a six-month suspension of an attorney who represented a 17 year-old client who had participated in a wet t-shirt contest during spring break in Daytona Beach. The contest was videotaped without the client's knowledge. She contacted the attorney's firm to pursue potential claims arising from the recording and distribution of the video.
The lawyer had only three years of practice without prior experience in federal court litigation. The court overturned the referee's finding that he had charged an excessive contingent fee but affirmed findings of incompetent representation. The court concluded that the fact that the client signed a series of contingent fee agreements that, in the end, increased the attorney's percentage to 45% did not establish that the fee was excessive. The client eventually fired the attorney and hired new counsel.
A referee had recommended a 90-day suspension in the matter. (Mike Frisch)
GGU Law Launches Book Review Journal -- Online -- for IP Books; All-Star Reviewers
Posted by Alan Childress
I am not sure why the Book Review has become an endangered species, or why some journal issues famously dedicated to Book Reviews have changed formats -- hey, I LIKED that station, why did it go 70's classic rock and now play the Eagles all day? -- but someone is trying to do something about it. The IP Law Center at Golden Gate Law just published online its first issue of The IP Law Book Review re books on patent, trademark, trade regulation, copyright and property concepts. Looks nice (includes the icons for the book much like an iPad would) but mainly it features books by some of the best in the Intellectual Property field, including Lemley and Burk; Catherine Fisk; David Hricik and Mercedes Meyer; and others. Then the reviewers are the other half of the all-star equation, including Jeffrey Lefstin, Shubha Ghosh, Jessica Silbey, and Andrew Torrance. Good idea and well executed. It is "edited by GGU Professors William Gallagher and Chester Chuang."
One of the books reviewed is indeed, fitting this blog, Hricik and Meyer's Patent Ethics, shown right..
A recent judicial ethics opinion is summarized on the web page of the Ohio Supreme Court:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion concerning making a charitable contribution in lieu of serving the community control sanction of community service.
The board noted that it does not have authority to interpret laws governing sentencing or to render advice as to the application of the sentencing laws. “Thus, the Board cannot advise as to whether Ohio law provides for a judge to allow an offender to substitute a charitable contribution in place of serving a community control sanction of community service as sentenced.” However, the board “may render advice as to whether conduct is ethical.”
Opinion 2010-4 addresses the following question: “Is it proper for a judge who has sentenced an offender for a felony or a misdemeanor offense to grant the offender’s request to replace a community control sanction of community service with a financial contribution to a charitable organization?”
The opinion finds that a judge should not grant the request unless there is authorization by law. Without such authorization by law, the opinion finds that it is not ethically proper because it would not uphold the law; because it would not promote public confidence in the independence, integrity and impartiality of the judiciary; and because it would convey the impression that money and outside influence impacts sentencing.
Several ethical rules in the Ohio Code of Judicial Conduct were consulted in issuing this advisory opinion, including: Jud. Cond. Rules 1.1, 1.2, 1.3, 2.2 and 2.4(C).
This Diamond Ring Doesn't Shine For Me Anymore
The New York Appellate Division for the Second Judicial Department found a triable case in a dispute over the return of a ring given in contemplation of marriage. The court set out the facts:
It is undisputed that, on or about September 10, 2006, the plaintiff gave the defendant a six-carat diamond ring, which he purchased for the sum of $100,000. Thereafter, on September 20, 2006, the parties participated in an Orthodox Jewish wedding ceremony as bride and groom. Prior to that ceremony, they executed a prenuptial agreement reciting, among other things, that the plaintiff would deposit the sum of $300,000 in a joint bank account to pay for their expenses, that the parties would retain their separate property, and that, in the event of a divorce sought by either party, the plaintiff would pay to the defendant a lump sum ranging from $525,000 to $3,000,000, depending upon the length of the marriage.
At the time of the religious wedding ceremony, the defendant was still legally married to another man, although she had obtained a "get" on July 30, 2002. She did not obtain a final judgment of civil divorce from her former husband until December 27, 2007. Prior to that date, however, the parties had separated and were no longer living as a couple.
The putative husband filed a lawsuit sounding in replevin and fraud. The court here concluded that he was not entitled to summary judgment:
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by averring in his affidavit that he gave the ring to the defendant in contemplation of their valid and binding marriage and that, unbeknownst to him, the defendant was still legally married to another man and could not validly marry him. However, contrary to the Supreme Court's determination, the defendant raised a triable issue of fact by submitting her own affidavit and that of her matrimonial attorney, asserting that, at the time the plaintiff discussed marriage with the defendant and presented her with the ring, the plaintiff was well aware of her marital status, and even participated indirectly in her divorce proceedings. While the Supreme Court correctly observed that the opposing affidavits did not identify the precise dates of the plaintiff's participation in the defendant's divorce proceedings, the affidavits clearly alleged that the plaintiff knew of the defendant's existing marriage before he gave the defendant the ring. The defendant further claimed in her affidavit that the plaintiff presented her with the ring not in contemplation of a legally valid civil marriage, but in contemplation of a religious wedding ceremony. She claimed that he was only concerned that the defendant obtain a religious divorce, and that he did not care about a civil divorce. The conflicting affidavits presented a stark credibility question, which the Supreme Court summarily and impermissibly resolved in the plaintiff's favor. "A court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned'" Here, there is no basis to conclude that the issues presented are not genuine. Accordingly, in light of the existence of these triable issues of fact, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action and left for trial the resolution of issues of credibilit (citations omitted).
Since there remains a triable issue of fact as to whether the plaintiff knew of an impediment to the proposed marriage at the time he gave the defendant the diamond ring, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action. Accordingly, the order is reversed, on the law, that branch of the plaintiff's motion which was for summary judgment on the first cause of action is denied, and the provision directing the defendant to return the diamond ring to the plaintiff is vacated.
Flat Fees In D.C.
The Legal Ethics Committee of the District of Columbia Bar has issued an opinion explaining the proper handling of flat fees. the opinion considers the impact of a recent opinion of the D.C. Court of Appeals on the subject. The summary:
In its decision in In re Mance, 980 A.2d 1196 (D.C. 2009), the District of Columbia Court of Appeals held that, absent informed consent from the client to a different arrangement, a lawyer must deposit a flat or fixed fee paid in advance of legal services in the lawyer’s trust account. Under Mance, such funds must remain in the lawyer’s trust account until earned unless the client gives informed consent to a different arrangement. This Opinion provides guidance for the Bar concerning these rulings.
The lawyer and client may agree on how and when the attorney is deemed to have earned some, or all, of the flat fee and thereby entitled to transfer trust funds into the lawyer’s operating account. Such an agreement must bear a reasonable relationship to the anticipated course of the representation and must avoid excessive “front–loading.” A written agreement or a writing evidencing the agreement is strongly recommended but not mandatory. In the absence of any agreement with the client regarding milestones by which the lawyer will have earned portions of the fixed fee, the lawyer will have the burden to establish that whatever funds that have been transferred to the lawyer’s operating account have been earned.
Alternatively, a lawyer may place unearned funds in an operating account provided that the lawyer obtains informed consent from the client as provided in Rule 1.15(e). In order to obtain such consent, the lawyer must explain to the client that the funds may also be placed and kept in a trust account until earned and that placement in an operating account does not affect a lawyer’s obligation to refund unearned funds if the client terminates the representation. The lawyer should also explain the additional protection offered by a trust account. For the lawyer’s and client’s protection, these disclosures should be in writing, but the Rules do not mandate a writing.
The Mance opinion is linked here. (Mike Frisch)
Federal Standards of Review, new edition, and Holmes' The Common Law
Posted by Alan Childress
Because you cannot spell blogger without either ego or bore, I use this forum to announce June publication, by LexisNexis, of the 4th edition of a book on appellate and federal review which I coauthor with Martha Davis, called Federal Standards of Review. It is in 3 volumes, for civil, criminal, and administrative appeals; previous editions were cited in some 350 cases including four Supreme Court opinions. Justice Ginsburg once wrote me a sweet note about it (by hand!). The new edition is expanded and thoroughly updated. You may want to ask your law library to get one.
Today, I published to Amazon Kindle a digital ebook of Oliver Wendell Holmes, Jr., The Common Law. It has my new Foreword and bio section of this great work from that great man. That would seem to be no large accomplishment, other than my trivially interesting Foreword, except that this is now the only online or ebook version of Holmes' masterpiece that actually uses Holmes' words. All of the prior versions -- free or paid, old version or Gutenberg's "2006 corrected" one -- are derived from ONE old scan from "Patient Zero," a book that was not held down on the copier so words from the inside margins are missing. Thus on most right-hand pages, every eighth word disappeared. That makes Holmes even tougher to read than normal. Plus he apparently uses words like "docs" and "modem," being ahead of his time! He uses "tiling" for "thing" and "ease" for "case" and other poor scan vestiges. You would think there would have been someone to have rescanned this and proofread it before posting to Kindle or Gutenberg, or online, but no. Plus I linked and numbered the footnotes (the others have 250 instances of footnote "1"!). No doubt, however, their book docs one tiling that no modem version of Holmes docs--it brings the eases to life for the reacling pubic. And you saved S bucks!
I think it is unethical Reverse Plagiarism to stick Holmes' name onto a work he did not write that way. HE did not leave out marginal words and sound like an idiot. (BTW, as to non-idiot, he delivered this as 12 lectures in 1880, without notes.) HE did not think a right-of-way is a "casement." One edition pronounces him Chief Justice of the Supreme Court. Taft would not appreciate that. Holmes even looks unhappy on my cover about all this.
Consider a worse example: for $30, you can buy on Amazon a paperback purportedly of the late Philip Selznick's fantastic study, TVA and the Grass Roots. And read this, supposedly by the author, "The jocation of administrative control in the area of operations, with the Authority as a weole, in relation 10 tha fmdfl IJOVCrflffietit, taken as an example". If you know someone at U of California Press, please ask them to fix this. (This is not one they produced, but they have not forced it down either, despite my telling them. Why? Because it is out of print?) People should not be allowed to sell books that are in effect very good passwords for your medical records.
I just noticed that the price is the same for both my announced books, except the decimal place. For individual purchase you should stick with Holmes, at $3.99. I priced it less than other versions that are not proofread or linked in the notes. If you do not have the Amazon app for PC, Mac, blackberry, iPad, etc., I offer a related version at Smashwords in epub, PDF (with active footnotes, clickable), rtf, and Sony reader formats. More on the other versions to come. Anyone with a computer can read it, as I explain here.
UPDATE: a thoroughly ANNOTATED and thus decoded edition of The Common Law now available on Kindle and Smashwords, and soon on Nook, Sony and Apple iTunes. It also uses the correct words.
July 7, 2010
For The Sake Of The Children
The Louisiana Supreme Court imposed a fully deferred suspension of a year and a day in a matter arising out of an attorney's dispute with a public school attended by her child in the 2004-05 academic year. The attorney "repeatedly violated the rules and regulations established by [the school] and the School Board regarding a visitor's presence at the school." In dropping off and picking up the child, the attorney entered and exited the school's bus zone area. Two incidents at the school led to police involvement and a misdemeanor conviction for resisting arrest. A two year term of probation was imposed for the conviction.
The attorney was a law student at the time of the incidents and was admitted in 2006. She thereafter was found in violation of the terms of probation in entering the school premises three times without authorization. The probation was terminated as "unsatisfactorily resolved."
The court here found that the attorney acted knowingly in violating her probationary terms. While the court did not impose an active term of suspension, the attorney must submit to an examination by a licensed health care professional and submit monthly reports of compliance if treatment is ordered. (Mike Frisch)
An attorney's federal conviction for obstruction of justice was similar enough to a state criminal statute to warrant summary disbarment, according to a recent opinion of the New York Appellate Division for the First Judicial Department. The court explained:
A conviction of a federal felony does not trigger automatic disbarment unless the offense would constitute a felony under New York Penal Law. The federal felony need not be a "mirror image" of the New York felony, but it must be essentially similar. Here, respondent's federal conviction of obstruction of justice in violation of 18 USC § 1512(c) is essentially similar to the New York felony of tampering with physical evidence. Accordingly, the Committee's petition to strike respondent's name from the roll of attorneys is granted.
Respondent's conviction for obstruction of justice in violation of 18 USC § 1512 (c) is a proper predicate for disbarment because there is "essential similarity" between that federal statute and the New York felony of tampering with physical evidence.
While these statutes are not "mirror images," they are essentially similar. The only significant difference is the element of force or intimidation with respect to another person in Penal Law § 215.40(2), but that language is framed in the alternative and does not necessarily apply in every proceeding.
Respondent's indictment, inter alia, contained the following language: [Respondent], together with others, did knowingly, intentionally and corruptly alter, destroy, mutilate and conceal records, documents, and other objects, and attempt to do so, with the intent to impair their integrity and availability for use in an official proceeding, to wit: a Federal Grand Jury Investigation in the Eastern District of New York
* * *30. Between November 2005 and April 2007, a duly empaneled Grand Jury in the Eastern District of New York was  investigating Fraudulent Scheme #2. On or about January 12, 2006, the defendant Steven Coren was informed by [Cooperating Witness-3] that Corporation-3 was under investigation by a law enforcement agency and that law enforcement officials had obtained certified payrolls submitted by Corporation-3 for work it performed as a subcontractor on various state and federal projects.31. On or about and between January 13, 2006 and February 3, 2006, the defendant...advised [Cooperating Witness-3] and [Cooperating Witness-4] to conceal and destroy records, documents and other objects relating to the transfer of CBT funds to labor union benefit funds.
Respondent's plea allocution with respect to this charge was
as follows:[R]egarding the count in the indictment charging obstruction of justice, I admit that on February 3, 2006, I advised Nomi Beig [his client] in response to a question he posed to me that he should destroy a computer flash drive containing documents that I advised him to remove from his office when I heard that his company was under investigation. I knew that by doing so Nomi would be destroying documents that could have been used in a Government investigation.
The above allocution, taken in conjunction with the indictment, demonstrates the "essential similarity" between the federal and state statutes. Assuming Beig was a cooperating witness, respondent could be found guilty only of attempted, rather than actual, evidence tampering. While 18 USC § 1512(c) specifically includes "attempt" language, Penal Law § 215.40 does not. Furthermore, under Penal Law § 110.05(6), an attempt to commit a crime under Penal Law § 215.40 would only be a class A misdemeanor. Moreover, respondent's allocution only refers to his directing someone else to destroy evidence, rather than respondent himself. However, respondent was specifically charged in the indictment, and ultimately convicted for, actual evidence tampering, not attempted evidence tampering. Thus, under these circumstances the conviction under this charge is sufficient to strike respondent from the roll of attorneys. (citation omitted)
July 6, 2010
Suspension After Over Five Decades Of Practice
An attorney who was admitted to practice in 1956 was suspended for six months by the New York Appellate Division for the First Judicial Deapartment. His only prior discipline was imposed in 1990. The court noted mitigating evidence:
Respondent is an 82-year-old solo practitioner, who mostly handles indigent criminal and immigration cases, but also matrimonial and other civil matters. He served in the Navy during World War II, and briefly held offices in a Veterans organization, AMVETS. In 1990, he was admonished for neglecting a client matter (he waited five years before seeking a deposition and did not move to restore the case to the calendar until the disciplinary complaint), and lending a client money for purposes other than litigation expenses.
Two long-term clients (Roy Belaief and Marlene Liggett) and two more recent ones (Walid El Sayed and Meena Raguthu) testified on behalf of respondent that they were pleased with the quality of his work and the promptness of his responses.
Holmes [the complainant in this matter] testified that she had withdrawn her complaint upon respondent's assurance "that he would do better with the case, but nothing changed." She agreed to accept a $10,000 payment from respondent, who promised to send a certified check within 30 days.
We find that a six-month suspension is appropriate. While respondent's many years of practice, and his military service cannot be overlooked, it is evident that he neglected the matter entrusted to him over a very lengthy period of time, and was less than candid and cooperative when the investigation was ongoing. A mere censure or admonition would serve to ignore the significance of respondent's acts—which was the neglect of a matter entrusted to him by a client who had placed her faith in him.
Law School Applicants, Law Students, and Lawyers: You Are Less Anonymous Than You Think You Are
Posted by Jeff Lipshaw
Take a look at this post from the Dean of Admissions at the University of Michigan Law School. In a nutshell, an applicant will call the office, act rudely and hence take the view that he or she wants to remain anonymous lest he or she affect his or her prospects of admission, all while the person in the Admissions Office is looking at the caller's name on the caller id. This reminds me of the story from years ago in which a noted basketball player, let's call him "Joe," while in high school, was involved in holding up a bus. The kids were smart enough to wear nylon stockings over their heads, but the dead giveaway was the fact that Joe was wearing his varsity jacket that said "Central High" with a script "Joe" just below it.
(HT: Anna Ivey at The Ivey Files, via Facebook, as to the Michigan story, not the basketball anecdote!)
Report On Pennsylvania Juvenile Court Failures
The web page of the Disciplinary Board of the Supreme Court of Pennsylvania reports:
On May 27, 2010, the Interbranch Commission on Juvenile Justice issued its final report on its inquiry arising out of highly publicized failures in the juvenile justice system of Luzerne County. The Interbranch Commission was established in August 2009 by representatives of all three branches of government in Pennsylvania to consider ways to strengthen and improve the justice system statewide. The Commission’s Final Report is available online here. A summary of its recommendations is available here.
The Commission addressed, among other topics, ways to improve the disciplinary systems for judges and lawyers, enhance services to victims of juvenile crimes, provide better training for lawyers and judges who work in juvenile courts, and establish statewide ethical standards for juvenile probation officers.
While much of the focus of the report was on failings within the court system, the Commission did express concern about the role of some lawyers in the scandal. The Commission noted:
The Commission is concerned at the possibility, if not the probability, that no lawyer practicing in Judge Ciavarella’s courtroom ever filed a complaint to the Disciplinary Board against a fellow lawyer alleging a violation of the Rules of Professional Conduct. In addition, while attorneys witnessing unethical behavior by judges are bound to report the judge’s behavior to the Judicial Conduct Board, the Judicial Conduct Board reported that no such complaints were filed by any attorneys present at the juvenile proceedings which have been the subject of the commission’s investigation. Report, Page 45
As to the lawyer disciplinary system, the Commission recommended that:
- The Disciplinary Board create appropriate educational materials for the general public and for attorneys. This will assure that both the bar and the community at large understand what constitutes a violation of the Rules of Professional Conduct and how to file a complaint.
- The Web site of the Disciplinary Board be redesigned so that it offers a clear and simple mechanism to file complaints electronically.
- The Pennsylvania Continuing Legal Education Board Regulations be amended to provide that of the 12 continuing legal education credit hours a Pennsylvania attorney is required to earn each year; the minimum number of ethics credits should be increased from one hour to two hours per year; and, an attorney should be required to attend at least one hour of continuing legal education every five years on the topic of the duty to report misconduct by judges and other attorneys.
- Courses which are offered to satisfy the ethics continuing legal education requirement provide meaningful and inspirational programming. Report, Pages 45-46
The leadership of the Disciplinary Board and the Pennsylvania Continuing Legal Education Board are examining the report and the recommendations to determine action steps to achieve the goals set by the Interbranch Commission.
The Costs Of Alcoholism
The Wisconsin Supreme Court has publicly reprimanded an assistant district attorney for misconduct that was a product of his struggle with alcohol. The court substantially reduced the costs imposed because the attorney had prevailed on a count that, in the court majority's view, had caused a significant impact on the total costs. The court found that "extraordinary circumstances" warranted the costs reduction.
The court set out the facts:
The referee concluded that the professional misconduct in this case was a result of Attorney...'s struggles with alcoholism. According to the referee's report, there were concerns in Attorney...'s family about his alcohol consumption for a substantial number of years. He sought help for stress and alcohol consumption, but despite these efforts, his drinking increased in the early 2000s. Ultimately, his drinking progressed to the point that he was typically consuming significant amounts of alcohol after he arrived home from work.
The [district attorneys office's] policy was that official case files were to remain in the office unless they were needed for use in court, and they were to be returned immediately upon completion of the court proceeding. Like other members of the [office], however, Attorney...regularly took home case files on which he worked in the evenings. He generally did this to transfer notes he had taken on other pieces of paper into the MCDAO case file or to review a file in preparation for upcoming court proceedings. The referee concluded that this practice of working at home in the evenings had been essential to Attorney...'s ability to perform his job as a prosecuting attorney.
As Attorney...'s evening alcohol consumption increased, his ability to work at home decreased, causing him to fall farther and farther behind on his file management, especially in the latter half of 2004. Thus, Attorney...would take home every evening a sizable number of files with the intent to work on them after dinner but would not be able to get the work done. In the morning he would take those files from his house back to his car, including those files on which he had been unable to work. When he arrived at work, he usually took into the office only those files that he needed for that day's court proceedings, a few additional files that required work, and those files that he had completed the night before. In addition, Attorney...also kept some files in the trunk of his car that he considered to be low priority files. Some of these files remained in his car for an extended period of time.
A fellow employee found the attorney drinking in his car. There were 20 case files in the car at the time. Howver, the referee found insufficient evidence that the attorney engaged in dishonesty toward his employer:
On this count the referee concluded that the OLR had failed to meet its burden of presenting clear, satisfactory, and convincing evidence of dishonesty, fraud, deceit or misrepresentation. She noted that there was no proof that [another district attorney] Attorney...specifically asked about the location of the Brown Deer case file or directed Attorney...to locate that file. She further stated that Attorney...had testified, without contradiction, that the reason the files were in his car was because he had been trying to keep up with his work by taking files home to work on them, but had been prevented from completing the necessary work by his consumption of alcohol in the evenings. The evidence simply did not clearly and convincingly prove that Attorney...had attempted to hide his handling of cases by concealing case files in his car.
Chief Justice Abrahamson disagreed with the portion of the decision that reduced the costs:
The majority fails to explain what the "extraordinary circumstances" are in the present case. The rule does not define "extraordinary circumstances." In interpreting statutes, rules, and other documents, the court is very fond of examining the dictionary to define words. "Extraordinary" is defined in the dictionaries as meaning beyond what is ordinary and usual; the word means "not usually associated with" the subject being discussed.
The phrase "extraordinary circumstances" clearly requires the presence of factors that are not present in many disciplinary proceedings even though the phrase is incapable of being defined in a manner that encompasses all possible scenarios. The majority opinion fails to demonstrate facets of the present disciplinary proceeding that are not often found in disciplinary cases.
It is not extraordinary or unusual for the OLR to prosecute all misconduct counts for which the Preliminary Review Committee found "cause to proceed" and for the referee to conclude that one or more counts are not proved. It is not extraordinary or unusual for a prosecutor to be unable to prove all counts even after a finding of probable cause. There is no claim in the present case that the counts alleged by the OLR were wholly without prosecutorial merit or that OLR's pursuit of Count 3 was unreasonable, improper, or frivolous.
The majority is interpreting and applying the rule as if the court had adopted the substance of the rule originally proposed and defeated. If the majority wants to change the rule the court adopted, the majority has to do so using our rule-making function, our quasi-legislative function, not our case deciding function. The court is amending rules in an adjudication. That's a no-no.
At bottom, the instant proceeding arose out of Attorney...'s conduct. The rule adopted appropriately declares that the disciplined lawyer should bear to the extent he or she is able, except under extraordinary circumstances, the costs and attorney fees of the proceeding rather than the court transferring the costs to the other attorneys in the state who have not engaged in misconduct.
Dangers Of Expedience
An attorney found to have violated 24 ethics rules stemming from his partnership with a non-lawyer that engaged in the practice of law and fee-splitting with his partner was suspended for three years by the New York Appellate Division for the Second Judicial Department. The partnership conducted real estate transactions on behalf of lenders under the title of Expedient Settlement.
The court discussed the factors that resulted in a sanction:
In mitigation, the respondent emphasizes that he did not act with fraudulent intent, no client was harmed, he never took anyone's money, and he never utilized anyone's money. He cooperated fully with Grievance Committee in its investigation, which lasted more than four years, and testified candidly at all his appearances.
The Grievance Committee notes that the respondent has a disciplinary history consisting of two Letters of Caution. A September 30, 2005, letter cautioned the respondent for failing to maintain his attorney registration. A January 5, 2007, letter cautioned the respondent for neglecting a legal matter entrusted to him by failing to appear in court on two occasions, failing to respond to a motion to dismiss, which resulted in a dismissal of the case, and submitting an unsigned and unverified bill of particulars in the case.
Notwithstanding the Special Referee's finding that the respondent "did not profit or apparently intend to profit," we conclude that the respondent did profit in the sense that he would not have been able to handle the tremendous volume of business he did, but for his use, or more accurately abuse, of his attorney trust account. By using his attorney trust account and law office stationery in his "settlement business," the respondent imbued his business with an aura of trust, ordinarily afforded to attorneys by New York banks, who are accustomed to attorneys handling real estate closings. In so doing, the respondent was able to expedite closings, gain an advantage over his competitors, and garner more business. The respondent's improper use of his attorney trust account was part of an ongoing operation and not an isolated occurrence. Further, the respondent was no novice, as he had been practicing law for some 10 years when he formed Expedient Title and Expedient Settlement. He was well aware, as he admitted, that an attorney trust account is a highly regulated account.
July 4, 2010
Big Changes In Arizona Bar Discipline
The Arizona Supreme Court has announced significant changes in its attorney discipline system. The court's announcement highlights the new regime:
- Utilization of a paid full-time hearing officer, the Presiding Disciplinary Judge, to preside over all formal cases;
- Establishment of an independent probable cause committee, appointed by the Supreme Court, with representation by attorneys and members of the public;
- A streamlined process for formal cases that encourages resolution of cases before the Presiding Disciplinary Judge and provides the judge with the authority to impose all sanctions, including disbarment;
- Elimination of the Disciplinary Commission review and recommendation process; replacing it with a direct appeal to the Supreme Court;
- Appointment of counsel by the Presiding Disciplinary Judge for investigation of conflict cases and;
- Establish an Advisory Committee on Attorney Regulation to monitor the implementation of the new process and to periodically review the entire attorney admission and discipline system.
California Declares Bar Dues Amnesty
From the web page of the California State Bar:
Any attorney suspended for non-payment of State Bar membership fees for 2008 and earlier may take advantage of an amnesty program approved by the board of governors. The offer is good until Dec. 31.
Under bar rules, a lawyer may be able to regain his or her license by paying half of the amount owed from 2008 and earlier, plus the full amount of dues owed for 2009 and 2010. Attorneys suspended for other reasons, such as non-compliance with MCLE requirements or disciplinary actions, must resolve those issues separately.
The board changed bar rules last year, and through the amnesty program has collected $218,676 from 283 members – about 2 percent of the total owed by lawyers who qualify for amnesty.
At its meeting later this month, the board is expected to forward to the Supreme Court a list of California attorneys who have not paid their 2010 dues and any penalties or costs owed. By late June, 6,834 bar members were on the list. In addition, about 2,000 lawyers are on a list of non-compliance with MCLE requirements that will be sent to the board.
Failure to pay dues or comply with MCLE requirements can lead to administrative suspension of a law license.