August 20, 2010
Men Clients Only
A bar discipline case summary from North Carolina sets out an unusual limitation on the attorney's practice:
[An attorney] of Fayetteville attempted to have sex with clients and made inappropriate sexual comments to clients. The DHC suspended him for three years. The suspension is stayed for three years upon compliance with numerous conditions, including that [he] cannot represent female clients and cannot be alone with females in connection with his law practice unless his practice monitor is present.
Taking Advantage Of Inexperienced Lawyer Leads To Theft, Disbarment
A bar discipline report from the web page of the North Carolina State Bar;
[An attorney] of Mocksville sold half of his office building. He convinced the buyers and the closing lawyer that he was attending a closing that same day to refinance the remaining property, which would eliminate the existing deed of trust on the property being purchased. No such refinance closing was scheduled to take place. The inexperienced closing lawyer followed [the attorney's] instructions to deliver the gross sales proceeds to [him]. [The attorney] knew that he was obligated to apply $116,000 to pay off the existing mortgage. Instead, [he] converted the funds to his own use. He was convicted of felony obtaining property by false pretenses. [The attorney] was disbarred.
A Dark And Stormi Night In Crete
A district judge has been reprimanded by the Nebraska Supreme Court for conduct deemed prejudicial to the administration of justice. The judge dismissed a traffic case (against a defendant named Stormi Craig) when the police officer failed to appear for trial. After a chambers conference with counsel, the dismissal was put on the record in open court. The police officer was held in contempt, resulting in an administrative hearing against him.
In closing arguments in the administrative case, the police officer's counsel suggested that the deputy county attorney who handled the traffic matter was "very comfortable sitting in [the judge's] chambers and going forward with a contempt charge against [the police officer]." The deputy county attorney felt that the argument "crossed the line" and told the judge.
The judge called the police officer's attorney and accused him of making a false accusation. The judge requested that the attorney apologize publicly via the local newspaper (the Crete News) or face an ethics complaint. The reprimand was for the phone call. (Mike Frisch)
August 18, 2010
Law Firm Monitoring Fails To Prevent Misconduct
An attorney previously suspended for six months for lying to and presenting fabricated documents to a client has been suspended for eighteen months by the New York Appellate Division for the First Judicial Department. The misconduct was similar to that in the earlier case:
The Referee found that in February 2006, respondent's law firm was retained by Parry Murray & Company, Ltd., a U.K.-based firm, to collect $75,000 owed by Scalamandre Silks, Inc. In the nine months following his retention, respondent failed to institute litigation on behalf of this client and made repeated, deliberate misrepresentations concerning the status of the case via email to Eoin Campbell, Parry Murray's financial controller. Beginning in late May 2006, respondent misrepresented to Mr. Campbell that an action had been commenced. Respondent's misrepresentations about the case continued into October 2006.
In determining sanction, the court rejected calls for greater and lesser discipline than the eighteen month suspension:
Although the misconduct at issue in this proceeding involves one legal matter extending over a period of nine months, the circumstances are disturbingly similar to his previous misconduct, and suggest that he had not learned from his prior discipline. We also note that in the 2001 disciplinary proceeding, respondent testified that he and his firm had taken steps to reduce and manage more effectively his caseload, and had increased supervision by senior partners. Yet, approximately five years after his six-month suspension expired, and despite being monitored by his firm (according to a named partner), respondent committed the misconduct at issue.
Respondent has also offered remorse, but he has expressed it in such a fashion as to indicate that he does not appreciate the seriousness of his misconduct. He essentially counterbalances his contrition by repeatedly emphasizing the fact that the client withdrew the complaint against him and that no harm came to the client.
The Committee's request for a suspension of no less than four years appears too harsh, particularly since we cannot conclude that respondent presented false testimony before the Referee. On the other hand, respondent's suggestion of a six-month suspension overlooks that he has already been suspended for six months for almost the same exact misconduct. We thus conclude that a more severe sanction is necessary, and that the Hearing Panel's recommendation of an 18-month suspension is appropriate.
Accordingly, the Hearing Panel's finding that respondent testified falsely at the hearing is found not to be supported, but the Committee's motion to disaffirm is granted to the extent of rejecting the Referee's sanction recommendation and, otherwise, the findings of fact and conclusions of law of the Hearing Panel are confirmed, and respondent is suspended from the practice of law for 18 months.
Reinstatement from the six-month suspension was automatic. (Mike Frisch)
August 17, 2010
Masturbation Only Self Abuse
Not a legal profession case, but of possible interest is a decision today from the Wyoming Supreme Court that reversed a criminal conviction. The defendant walked into the hospital room of a woman (previously unknown to him) who was recovering from knee replacement surgery, masturbated in front of her, and departed.
The court found that the conduct did not involve abuse of the victim and did not subject the victim to punishment. Thus, the conviction for abuse of a vulnerable adult was reversed because, in the court's view, it "cannot stand."
Wonder if that was a comment on the evidence. (Mike Frisch)
Convicted And Disbarred
An attorney convicted of rape and other charges has been disbarred by the Massachusetts Supreme Judicial Court. This summary from the Bar's web page describes the criminal case:
On October 20, 2005, the respondent was convicted in the Worcester Superior Court of two counts of rape, indecent assault on a person fourteen or over, administering a drug for purpose of sexual intercourse, distribution of cocaine, furnishing liquor to a person under twenty-one years of age, and a drug violation in a school zone. The respondent was sentenced to state prison and required to register as a sex offender. Following these convictions, the respondent was temporarily suspended from the practice of law on January 9, 2006. See Matter of LeBlanc, 22 Mass. Att’y Disc. R. 458 (2006).
On February 3, 2009, the Appeals Court in Commonwealth v. LeBlanc, 73 Mass. App. Ct. 624 (2009), reversed the conviction for administering drugs for sexual intercourse but affirmed the remaining convictions. Bar counsel filed a petition for discipline on February 4, 2009. Proceedings were deferred while the criminal case was further appealed to the Supreme Judicial Court. Commonwealth v. LeBlanc, 456 Mass. 135 (2010), upheld all of the convictions except for administering a drug for sexual intercourse.
Universal Hub reports on the disposition of the criminal appeal:
The Supreme Judicial Court today dismissed Gary LeBlanc's conviction on a charge of drugging a person for unlawful sexual intercourse because he only made the cocaine and beer available to her but did not force her to consume it.
However, the ruling upholds LeBlanc's convictions on two counts of rape and one count each of indecent assault and battery, distribution of cocaine, procuring liquor for a person under 21 and distribution of cocaine in a school zone, because the 18-year-old, who had previously and repeatedly rebuffed his efforts at sex, was so bombed out of her mind she was unable to give consent for intercourse - or keep him off her.
According to the ruling, LeBlanc, at the time a 50-year-old lawyer in Gardner, had been rebuffed several times in his efforts to bed the teen - who at least once outright laughed at him. But she attended a 2004 Super Bowl part at her aunt's house, which he also attended and where she accepted his offer of cocaine. Over the next day, she went to his place twice for beer and more cocaine. Even in her drugged state, she resisted him, but eventually consumed so much beer and coke - 12 beers on an empty stomach - that by the time her friends managed to get her home, her father noticed she "looked like a zombie."
The SJC ruled that the state law on drugging a person for sex requires some element of force or coercion and that merely providing access to a banquet of alcohol and drugs is not the same as "giving" somebody those substances.
Reporting Honors And Lawyer Advertising
The North Dakota Supreme Court has asked for comments on proposed amendments to its rule governing communications concerning the lawyer's services. The proposed additions (which are underscored) deal with comparisons and accolades about the lawyer and are accompanied by the following proposed new comment:
A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the comparing organization has made inquiry into the lawyer's fitness, (2) the comparing organization does not issue the honor or accolade for a price, and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source.
The recommendation for the change is linked here. (Mike Frisch)
August 16, 2010
Limited Representation Agreement Defeats Legal Malpractice ClaimThe Indiana Court of Appeals has held that the defendants in a legal malpractice lawsuit were improperly denied summary judgment. The attorneys and client had entered into a limited representation agreement. The attorneys fulfilled their obligations under the agreement. There was no evidence that the former client plaintiff did not understand or consent to the limited representation. (Mike Frisch)
Predatory Behavior Results In Disbarment
The South Carolina Supreme Court has rejected a variety of claims and disbarred an attorney for ethical misconduct in two client matters. The court described the violations:
This matter involved the aggravated misconduct of an attorney who engaged in egregious, predatory behavior, taking advantage of and causing great detriment to his clients. Respondent took vast, yet unchecked, power over the affairs of the clients at issue. Respondent used these powers for his benefit, but to the detriment of the clients. When a lawyer acquires fiduciary duties over his clients' affairs, as is the case in this matter, he must meticulously account for his handling of the client's real and personal property. Respondent failed to keep account of his handling of his clients' financial transactions, hiding the great detriment he caused them. Any friendship Respondent gave to the clients at issue here, as he claims to have provided them, is no substitute for the great harm he caused them.
The court rejected the suggestion that the mixing of the role of prosecutor and investigator tainted the proceeding:
Seymour acted as an investigator and prosecuting attorney in the time leading up to the hearing. When ODC called Seymour to testify, Respondent objected based on Rule 3.7, RPC, Rule 407, SCACR. Rule 3.7 prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness unless certain exceptions are met.
In our view, a respondent at an investigative hearing may not ask the Panel to adjudicate an opposing attorney's compliance with the Rules of Ethics. An independent grievance filing may be made, but the Panel is not the correct forum. In any event, we find no abuse of discretion on the part of the Chairman. Seymour was included on Respondent's witness list submitted prior to trial and her testimony at trial was limited to presentation of facts, documents, and statements by Respondent obtained in the course of the investigation. Thus, we find no error in the admission of Seymour's testimony at the hearing.
The court also rejected claims concerning the admission of hearsay evidence. The court found the documents were not hearsay and were properly admitted. (Mike Frisch)
Best Laid Plans Result In Disbarment
The Kansas Supreme Court has disbarred a suspended attorney for post-suspension activities that involved the continuing practice of law. The court rejected the contention that the attorney had done "exactly what a suspended attorney is supposed to do..." and agreed with the disciplinary administator that he had, in effect, purchased the license of another attorney to continue practicing during the suspension period.
The other attorney did not supervise the suspended attorney; rather, he was paid as the suspended attorney's independant contractor. The so-called employing attorney was not a shareholder or officer of the professional corporation:
...we do not view [the suspended attorney's] conduct to be an inadvertant violation, but rather a carefully planned scheme to circumvent the suspension order in order to continue to his law practice.