January 22, 2010
More Than A Momentary Lapse
The Louisiana Supreme Court denied the application for admission of an applicant who, after having conditionally failed the bar exam, forged a notarial signature on an affidavit attesting that her answers had not changed since her prior application. The applicant had taken and passed the examination on the second try. It was then learned that she had gone to the office of the Committee on Bar Admissions on the last day for applying to take the February 2007 exam. She was informed by committee staff that the application was not properly completed and notarized. She returned later that day with a forged notary signature on the application and later gave a false oath-sworn statement that it was genuine.
The court here rejected the suggestion that the misconduct was a "momentary lapse in judgment" and found the applicant lacked the good moral character required for bar admission. The applicant may reapply for admission after one year.
Justice Johnson dissented, concluding that the misconduct was a "complete aberration." Justice Johnson would order conditional admission. (Mike Frisch)
Burglary Did Not Cause Neglect
The Oregon Supreme Court suspended an attorney for 120 days based on findings that he had neglected a divorce case and falsely attributed his lack of preparation to a burglary of his trailer/office. The underlying facts:
The accused has been a lawyer since 1976. In 2005, he began working as the administrator of a charter school operated by People Involved in Education (PIE). The accused still continued to handle a few cases and used space in a trailer that PIE owned for his law office. In the fall of 2005, the accused agreed to represent a coworker, who was in the process of divorcing her husband. The accused's client (the wife) and her husband had already reached an agreement on parenting time and property division, and the accused filed a petition for the dissolution of the marriage on December 19, 2005, in Linn County Circuit Court.
On December 26, 2005, someone broke into and vandalized the trailer that the accused used for his law office. The accused's files were "trashed," including the wife's dissolution file. At that point, the dissolution file consisted of the petition and information that the wife had given the accused. The accused reconstructed most, if not all, of the wife's file and, after December 26, 2005, stopped using the trailer as his law office.
The false representations were later made to the tribunal:
The Bar argues that the accused's explanation was false or misleading in two respects. First, it argues that no burglaries occurred after December 26, 2005, and, at a minimum, after April 20, 2006 -- the date that would have affected the accused's ability to proceed with the arbitration. Second, the Bar argues that, even if the trailer was burglarized after April, the accused misled the trial court into believing that those break-ins were the reason that he had failed to respond to the arbitrator's request and proceed with the dissolution case. The Bar notes that, because the accused stopped working out of the trailer after December 2005, any subsequent break-ins would have had no material effect on his ability to represent the wife's interests.
We begin with the number and timing of any burglaries. The evidence clearly establishes that, on or about December 26, 2005, someone broke into the trailer that the accused used for office space and completely vandalized its contents, including the accused's legal files. The testimony regarding the existence and timing of other break-ins was mixed. The owner of the property on which the trailer was located works approximately 150 feet from the trailer and walks or drives by it daily. He testified that, within a month after the December break-in, the trailer's windows and doors were boarded up and that he never saw evidence of a later break-in. Another witness, Cody Northern, is involved in PIE and helped maintain the trailer. He testified that two break-ins or attempted break-ins occurred before the major break-in, but he could not identify the date when any of the break-ins had occurred. His mother, Mary Northern, testified that more than one break-in occurred, and her testimony primarily is consistent with her son's that the break-ins preceded the major break-in in December. One part of her testimony, however, may permit a weak inference that some break-ins occurred after December 2005. Finally, at the disciplinary hearing, the accused sought to clarify his response to the trial court in July. He testified that,
"in responding in court that day about the later burglaries, what I should have made more clear was the fact that I don't know when any of the burglaries occurred. I personally don't have that knowledge. The reference that I should have made clearer is that I became aware of at least two others after the last -- after the April court date."
There are no police reports or other documentation of any burglaries after December 26, 2005, and we conclude that no break-ins occurred after that date. The accused's statement to the court on July 20, 2006, that two burglaries had occurred after April 20, 2006 was, at a minimum, too broad, as he later acknowledged.
The attorney had a prior history of bar discipline for neglect of client matters. (Mike Frisch)
Suspension For Confidentialty Violations
The former city and county attorney for Wakeeney, Kansas has been suspended for 90 days by the Kansas Supreme Court. He was found to have repeatedly disclosed attorney-client confidential information obtained through his dealings with city and county officials and also to have violated his ethical duties to his organization client. The disclosures were to two individuals and in a newspaper letter to the editor.
According to the court:
The respondent knowingly violated his duty to his client causing actual injury. His conduct was motivated by anger and selfishness. On more than one occasion he publicly revealed confidential information obtained while representing a client. Through his efforts some of this information surfaced in a local newspaper. The respondent through his special prosecuting attorney was able to initiate an inquisition concerning activities of certain city officials. The inquisition was subsequently dismissed by the district court. Within the community of Wakeeney, respondent's client suffered injury and certainly the reputations of some council members were damaged by the misconduct...
The attorney's anger was a result of inquiries into whether he was eligible to participate in a public employee's retirement system. He then disclosed concerns about illegal conduct by the Mayor and the City Administrator, who were his clients. Thereafter, he was removed from participation in the retirement plan. Further confidentiality breaches followed. The Mayor and others filed bar complaints after the Mayor had lost his bid for reelection.
The Disciplinary Administrator had recommended a published censure. A minority of the court would impose greater discipline. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended a fully-deferred suspension of three months and one year probation of an attorney convicted of trespassing on public school grounds and resisting arrest. The incident had taken place prior to her admission to practice and involved her child's school, where she was considered to be "disruptive or interfering with [school staff]..." The attorney had violated the condition of her criminal probation after bar admission and served a brief period of incarceration.
Here, the board recommends a deviation from the presumptive sanction of actual suspension:
Mere months before she was admitted to the bar, [respondent] was tried and convicted of school trespassing and of resisting arrest. She was placed on supervised probation.
Mere months after admission to the bar, [respondent] stipulated to the same court that she violated the conditions of probation. [The] violation of her probation violated the Rules of Professional Conduct. The baseline sanction for such misconduct is a suspension from the practice of law.
...much of the Board's justification for deviating downward from actual suspension to deferred suspension owes to the facts that 1) [she] has had her probation revoked, and 2) she has served three days in jail. Also owing to these facts, [she] should never again expect to receive the benefit of such lenient treatment by a court if she commits additional criminal misconduct.
The board is therefore persuaded that these facts stand as a powerful safeguard against [respondent] committing criminal misconduct, or otherwise violating the orders of a court.
Pay You Back With Interest
A Subcommittee of the Virginia State Bar Disciplinary Board has imposed a public reprimand with terms in connection with an attorney's fee practices in a divorcematter. The attorney was paid $5,000 and had "estimated" that the work could be completed for that amount. It was not. The attorney thereafter advised the client that she would be responsible for fees and costs if her bill for legal services was sent to collection. The client also was advised that interest on the unpaid fee balance would accrue at a rate of 18% per annum.
The divorce was obtained and the client owed over $18,800. The lawyer sought and received from the client an irrevocable assignment of proceeds from the sale of the marital residence. The attorney continued to send the client statements of amounts due, which with the interest charges eventually exceeded $60,000. The client obtained new counsel who tried without success to negotiate with the attorney, which led to a bar investigation.
The subcommittee found that the attorney had violated the prohibited transactions rule in several respects. The attorney must withdraw the claim on the marital residence and desist from using the interest rate in receiving irrevocable assigned interests or in client billing arrangements. (Mike Frisch)
January 21, 2010
Conference on Lawyer Marketing Through Online Social Networks
Posted by Jeff Lipshaw
Suffolk University Law School is hosting a program entitled Avoiding the Ethical Minefield of Online Social Networking and Marketing: Do You Know Who Your Friends Are? on Thursday, March 11, 2010 from 4:00 - 6:30 p.m. at 120 Tremont Street in the heart of downtown Boston. Featured speakers include Legal Ethics Forum luminaries, colleague Andrew Perlman (Suffolk) and John Steele (Visiting, Indiana - Bloomington) and James Sokolove of the ubiquitous television commercials advertising for mesothelioma (a particular kind of asbestos-related cancer) plaintiffs. Also a chance to pick a couple of those hard-to-come-by "ethics hours" for CLE.
The New York Appellate Division for the Third Judicial Department revoked the admission and struck from its rolls an attorney who had defaulted on charges that he had failed to disclose a 1997 conviction in England of the offense (maybe it should be offence?) "of being knowingly concerned in the fraudulent evasion of a prohibition or restriction on importation of a class A controlled drug, specifically cocaine."
The order notes that he was sentenced to an eight-year prison term. (Mike Frisch)
Two For The Price Of One
In a reciprocal discipline matter where the attorney had been reprimanded twice in Michigan, the Wisconsin Supreme Court held that a single reciprocal reprimand would suffice:
The only question that remains is whether the two
public reprimands should be addressed in a single proceeding and opinion in this court or whether there should be two public reprimands. The OLR urges that imposing a single reprimand will, as a practical matter, effectuate identical discipline under [pertinent rules] and will promote judicial economy. We conclude that since both of the disciplinary actions in the foreign jurisdiction were public reprimands and since we are explaining that Attorney...is receiving reciprocal discipline for both public reprimands, a single public reprimand encompassing both Michigan disciplinary actions is adequate. Michigan
Important Public Interest Fee Decision
The New Jersey Supreme Court upheld a trial court decision finding that parties to a discrimination case did not reach a settlement through a mediator. The court lifted a bar "placed on public interest attorneys and defendants from simultaneously negotiating merits and attorneys fees in Consumer Fraud Act cases." Such negotiations are now allowed. The defendants in such matters may not insist upon fee waivers or dictate to plaintiffs and their counsel concerning the fee division between lawyer and client. The court concludes that a defendant "has no legitimate interest in how the plaintiff and attorney divvy up the settlement." The court adopted the approach suggested by Justice Brennan in his dissent in Evans v. Jeff D.
Justice Albin authored the opinion for a unanimous court. (Mike Frisch)
Ethics 101: Suing Your Client Is A Conflict
The web page of the North Carolina State Bar reports:
[A] Maxton lawyer...was reprimanded by the Grievance Committee. [He] represented four clients in a personal injury case arising from a car accident. He failed to notify any of his clients that he had conflicts of interest. He filed two civil cases. In one civil case, [He] named two of his clients as defendants. Despite his conflict of interest, which required him to withdraw from representing any of the clients, [He] withdrew from representing only two of the clients and continued to represent the remaining two.
January 20, 2010
Suffolk Law School Offers Business Deals/Business Skills CLE
Posted by Jeff Lipshaw
Suffolk Law School's Advanced Legal Studies Program and its Business Law and Finance Services Concentration are co-sponsoring a 12-hour class in business and transactional skills for new lawyers, running for four consecutive Thursday evenings beginning on March 18, 2010 at 120 Tremont Street in the heart of downtown Boston. Information is available here. Here's a brief description of the aim of the course:
Business Deals/Business Skills is a four session program to assist new attorneys, those in transition, and those wishing to beef up their business acumen, with an understanding of the basic business concepts, financial components, and other issues arising in the practice of business law. Our program is staffed by experienced attorneys and business professionals who will present their respective topics in a practical and effective manner reviewing key definitions and providing practical insights on the practice of business law.
Attend and Learn:
Learn how to read a financial statement and understand financing terms
Gain an appreciation for the role of the P/L manager
Learn how to integrate your legal skills with business strategy and goals
Learn how to “move” the deal along to closing
Understand the team approach for legal/finance/management in achieving business goals
Flanders on the Need for Ethics Instruction in Law School
Posted by Jeff Lipshaw
My co-author (of the soon-to-be published ABA book, Becoming a Law Professor, with Brannon Denning), Marcia McCormick, passed along this link to a column in National Jurist by her St. Louis U. colleague Chad Flanders (right). I'm sympathetic to the position that much of law school (as well as legal scholarship) hits the low-hanging and not very interesting fruit on these issues - that many of the ethical issues facing lawyers go beyond the Model Rules (which are almost all directed essentially to litigation in any event), and often involve choices made in good faith by ethically-inclined people among several less-than-perfect alternatives.
Probation Precludes Bar Admission
The Arizona Supreme Court recently denied the bar admission application of an applicant who is on felony deferred adjudication status in Texas. In 2002, while an undergraduate, he was indicted on charges of burglary and sexual assault. He pled no contest to a reduced charge of attempted sexual assault and was placed on deferred adjudication while he completes a 10 year probationary term.
Arizona has a presumption that an applicant convicted of a felony or misdemeanor serious crime should be denied admission. Clear and convincing evidence is required to rebut this presumption. The court notes that "[c]ases from across the country uniformly require individuals convicted of crimes to complete their court-ordered supervision before applying for admission or reinstatement." Here, the applicant's probationary status renders him ineligible for admission until his probation expires in November 2013.
A divided Committee on Character and Fitness had recommended admission. The court chided the committee for questioning guilt notwithstanding the criminal conviction, noting that the committee was not free to retry the case in light of the plea. (Mike Frisch)
Terms Of Art
A disciplinary summary from the January 2010 web page of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year and comply with rule 9.20. The order took effect July 10, 2009.
[The attorney] stipulated that she failed to promptly return client property to a client who is an artist.
She had both a legal services agreement and an artist management agreement with the client and kept several pieces of his art, both for safekeeping and because the client had a gambling problem. At one point, the client asked that his paintings be returned but [the attorney] did not do so because of her previous agreements with him and because the paintings were waiting to be sold.
The client “began acting like someone else and he was erratic, angry and untruthfully accusing [the attorney] of never doing work for him,” according to the stipulation. [The attorney] wrote to the client, outlining a number of issues, and he contacted an artist arbitration service to facilitate the return of his art.
[The attorney] did not participate in the mediation because she believed the service acted as an advocate for the artist. She said she did not receive a letter from the client and does not recall receiving a letter from the mediation service.
At an early settlement conference, a bar court judge recommended that she return the artwork to her client and she did so.
Reentry Mission Scrubbed
The Michigan Attorney Discipline Board affirmed a Tri-County Hearing Panel's order denying reinstatement to an attorney who had been subject to a series of suspension orders that had started with a 120 day suspension in 1997. In 1998, he was suspended for an additional one year and a three-year concurrent term. Another 180 days was imposed in 1998 and still another in 2001 when he pled no contest to charges that he had signed another attorney's name to a claim of appeal.
The board agreed with (and appended) the panel's conclusion that the showing of the petitioner was "woefully insufficient." He had failed to pay state and federal taxes over several years and "provided no evidence that he now had a system in place that will help him avoid the mistakes of the past. [He] had further failed to participate in any continuing legal education, whether formal or informal, to enhance his readiness for reentry into the profession." (MIke Frisch)
An order affirming a $211,000 judgment in a lease/purchase matter was reversed by the South Carolina Supreme Court. The defendants had hired an attorney to defend the action who had been suspended from practice prior to the plaintiff's discovery motion: "Unfortunately, however, [the defendant] had no means of knowing of the suspension, and [the suspended attorney] was prohibited thereby from taking any action on her behalf."
After the client was served with the court's discovery order, she attempted to contact the attorney. By the time she had secured new counsel, the time to respond had elapsed. Notice of the trial was thereafter sent only to the suspended attorney and judgment was entered after "brief" testimony with the defendant not present. A pro se motion to set aside the judgment was denied.
Here, the court concludes:
We find the Court of Appeals placed an undue burden upon [client] Rice. Rice repeatedly attempted to contact [attorney] Tullis who, unbeknownst to her, was suspended. When she received the order from Judge Hill, she again attempted to contact Tullis. Receiving no answer, she attempted to hire a new attorney. She received no further communication until such time as she was served with the order issuing judgment against her.
Because of Tullis’ suspension, Rice found herself in a classic Catch 22 situation which she could find no redress. When she filed a pro se motion to reconsider the judgment, alleging Tullis’ had abandoned her, the trial court declined to rule on it, treating her as though she were represented by counsel. The Court of Appeals, however, treated her as a pro se litigant, with a duty to monitor her own proceedings.
If, as found by the trial court, Rice was represented by counsel, then counsel was required to notify her of the date and time of the hearing and, contrary to the Court of Appeals’ opinion, it was not incumbent upon Rice to monitor the status of her proceedings.
If, on the other hand, as implied by the Court of Appeals, Rice was deemed pro se by her attorney’s suspension, then she was entitled to due process and notice of the final hearing. Accordingly, absent notice of the proceedings, Rice is entitled to relief from judgment. (citation and footnotes omitted)
There are concurring and dissenting opinions. The dissent would find that the issue was not preserved. (Mike Frisch)
January 19, 2010
Interviews with Richard Posner
Posted by Jeff Lipshaw
There's an extended series of interviews with Judge Richard Posner over at bigthink.com. I disagree with him about many, many things, but I much admire his willingness to say exactly what he thinks and in an interesting way. Along the way he bashes anything to do with faith versus facts, and while he acknowledges the Humean dictum that you can't derive "ought" from "is," he thinks if we really understood everything about abortion, for example, maybe 60% of people would come to the same conclusion one way or another. I'm not sure that's consistent with his view that people are "just monkeys with big brains." I was also pleased to find that his decision to go to law school was a lot like mine: largely without passion about being a lawyer, but a better alternative than going to grad school in the humanities.
The web page of the North Carolina State Bar reports the following disciplinary action involving a state General Assembly representative:
Charlotte lawyer Nikita Mackey was reprimanded by the Grievance Committee. Mackey listed his martial status as "single" on a bankruptcy petition when he was in fact married. He was found in criminal contempt of court for failing to appear at his criminal client's trial. He failed to comply with the State Bar's subpoenas for production of state tax records.
The New York Appellate Division for the First Judicial Department has suspended an attorney under investigation for misappropriation of the proceeds of a wrongful death action in light of the following:
By letters dated August 3, 2009 and September 25, 2009, counsel for respondent informed the Committee that because respondent was under investigation by the New York County District Attorney's Office, counsel had advised respondent not to respond to the Kraft Complaint and to invoke his Fifth Amendment privilege.
Based on the bank records furnished to this Court, the September 25, 2009 letter from respondent's counsel wherein respondent invoked his Fifth Amendment privilege, and counsel's oral representation to the Committee staff that he would not oppose an interim suspension, we conclude that respondent is guilty of professional misconduct warranting immediate suspension from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(iii).
In the context of disciplinary proceedings, this Court has previously drawn an adverse inference against attorneys such as respondent who have invoked their Fifth Amendment privilege against self-incrimination. Thus, no facts are presented to controvert the Committee's submissions.
Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, until such time as disciplinary proceedings have been concluded, and until further order of this Court. (citations omitted)
January 17, 2010
Stayed Suspension For Intoxicated Belligerence To Courthouse Personnel
A disciplinary sanction reported by the North Carolina State Bar:
The DHC suspended [a] Wilson lawyer...for one year. [The lawyer] appeared in the courthouse intoxicated and was loudly belligerent to courthouse personnel. The suspension is stayed for three years upon compliance with numerous conditions.
The order of consent discipline is linked here. (Mike Frisch)