August 27, 2010
Hello, My Name Is...
The Michigan Attorney Discipline Board increased a hearing panel's 60-day suspension to 120 days. The attorney was convicted of a driving under the influence offense and placed on probation with conditions. Among the condictions was attendance at Alcoholics Anonymous. He forged attendance sheets to falsely establish his compliance with the probationary conditions. He also continued to drink.
The Administrator had sought a one year suspension. (Mike Frisch)
August 26, 2010
Dissent Demonstrates That Bar Prosecution Was Unwarranted
The Florida Supreme Court denied rehearing in a bar discipline matter that had sanctioned an attorney for use of the trade name "Legal Experts."
Justice Lewis dissented, concluding that the attorney had established that the facts recited in the concurring opinion were "wrong." Because Florida rules allow an attorney to use the phrase "Board Certified Trial Expert" and the attorney was so certified, his inclusion of his specific certification directly below the trade name "negates any notion that his trade name was misleading to the public as stated to be a basis for discipline and effectively establishes his consistency with the Rules Regulating the Florida Bar."
I have trouble understanding why this matter was brought. As Justice Lewis notes, a grievance committee found no probable cause and no one ever complained that they were misled.
When I was a bar prosecutor, I'd have never wasted the time and effort to bring such a case. (Mike Frisch)
Pro Se Attorney Gets Paid
The Oregon Supreme Court has held that a prevailing pro se attotney in a case seeking disclosure of public records is entitled to reasonable attorney's fees:
...we agree with plaintiff that the term "attorney fees," as used in ORS 192.490(3), means the reasonable value of legal services provided by an attorney in seeking the disclosure of public records. Plaintiff is a practicing attorney who performed legal services in pursuit of disclosure of public records, and plaintiff is therefore entitled to recover from defendant the reasonable value of those services, despite the fact that he acted pro se.
Until Hell Freezes Over Or Defeated For Reelection
The Wisconsin Supreme Court has reprimanded a former municipal court judge for his reaction to staffing and funding issues in his court:
The parties agree that the additional clerk support would have assisted the municipal court in case management and reduced or possibly eliminated the need for the municipal court to rely on clerical staff from the city's police department to process court cases involving parking citations and other court administrative matters. [The] Judge...believes he would have been encouraged to process cases in a more timely manner if there had been additional clerk support so he would not have been required to spend time performing tasks that he believed to be more properly the work of a clerk.
Since early May 2009, [the] Judge...refused to adjudicate any parking ticket stipulation cases. He did so to protest the decision of the City of
's police department that the municipal court could no longer access the police department computer in those cases. After that time, [he] placed parking ticket stipulation cases in a box. He told the Judicial Commission that "they can sit and collect dust until hell freezes over for all [he] care[s]." [He] refused to adjudicate parking ticket stipulation cases because he believed that the use of a police department clerk as a de facto court clerk in those cases was unconstitutional. Although he did adjudicate a small number of parking ticket stipulation cases after the half-time clerk position was approved in November of 2009, most of those cases remained unadjudicated until he left office on April 30, 2010. Cudahy
As to sanction:
The misconduct at issue in this case is serious. [The judge] repeatedly and willfully refused to dispose of judicial matters presented to him promptly, efficiently, and fairly. We agree with the panel that there is no conceivable reason that might justify a backlog of 3,500 cases, some of which were more than seven years old. [The judge's] persistent misconduct stymied the timely disposition of cases assigned to him and adversely impacted the business of the Cudahy municipal court and, more broadly, cast a negative light on the entire Wisconsin judicial system.
Under the circumstances presented here, we conclude that the appropriate discipline for [his] judicial misconduct is a reprimand. We note that in his stipulation [he] expressed regret for his conduct. We further note that [he] was defeated in the general election and no longer serves as a municipal judge. The likelihood of similar conduct by [the judge] is minimal, and we trust that the reprimand we impose on him will provide adequate protection to the public from any further judicial misconduct of this kind by others.
Good to see the court concerned about a negative light on the Wisconsin judicial system. (Mike Frisch)
Public Defenders And Imputed Disqualification
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.
Opinion 2010-5 addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
Several portions of two Ohio Rules of Professional Conduct were consulted in issuing this advisory opinion, including: Prof. Cond. Rules 1.10 and 1.7.
"Blatant Disregard" Draws More Than A Censure
The New York Appellate Division for the Second Judicial Department has disbarred an attorney for misappropriating entrusted funds, rejecting the attorney's (rather unrealistic) request for a public censure:
In the instant case, Special Referee Posner noted that the respondent treated escrow money as his personal bank account. Although he claimed that none of his clients was hurt because he returned all of the money he misappropriated, he violated his fiduciary obligation as a member of the Bar. Significantly, the respondent engaged in deceitful conduct by issuing checks containing a false memo entry to disguise the true source of funds.
Notwithstanding the mitigation offered, the respondent has exhibited a blatant disregard of his fiduciary responsibilities which warrants his disbarment.
Practice tip to those who handle other people's money: this form of ethical misbehavior rarely results in a public censure. (Mike Frisch)
August 25, 2010
Pay You Back With Interest
The Wisconsin Supreme Court has accepted the consent disbarment of an attorney who had misappropriated over $2.4 million in subrogated funds collected on behalf of a client over a seven year period. The court's order provides that full restitution must be made prior to consideration of reinstatement.
Where did the money go? According to the attorney, it was gambled away at casinos. (Mike Frisch)
No Greater Sanction
The New York Appellate Division for the First Judicial Department imposed reciprocal discipline in a matter involving an attorney who had not registered to practice in New York since 2001. The attorney also is admitted in New Jersey and Florida. New Jersey suspended the attorney for three months for misconduct in a personal injury matter. Florida suspended him for 10 days for misconduct unrelated to the New Jersey matter.
The departmental disciplinary committee sought a six-month suspension as reciprocal discipline, which the court rejected in favor of a three-month sit down:
While the Committee seeks to enhance respondent's sanction by three months, we see no basis for departing from the well settled rule, that with rare exception, any sanction we impose be commensurate with the sanction imposed by the jurisdiction where the misconduct arose. Here, the Committee is not asking that we sanction respondent for his failure to register with OCA (Judiciary Law § 468-a), but is simply asking for an enhancement on its petition for reciprocal discipline based on the same. Insofar as the Committee is free to take separate and appropriate action with regard to respondent's failure to register with OCA, and, in fact, has, enhancement on this ground is unwarranted. Enhancement is also unwarranted simply because we cannot issue monetary sanctions (22 NYCRR 605.5). Moreover, the three month suspension prescribed by New Jersey is in line with our precedent on the type of misconduct at issue (Schlem at 222 [three month suspension in reciprocal discipline proceeding where in addition to violating RPC 1.1, 1.3, 1.4, respondent also violated RPC 8.4 (misrepresentation) and 8.1 (failure to cooperate with the disciplinary investigation)]; Siegel at 161 (three month suspension for respondent's neglect of two client matters, his failure to cooperate with the Committee's investigation, and misrepresentation made to clients]).
August 24, 2010
Elvis Has Left the Practice
The Wisconsin Supreme Court denied the reinstatement petition of an attorney whose license was revoked in 2003. The court agreed with the referee that the petitioner had done very little in the way of demonstrating present fitness to practice. For example:
...the referee concluded that [the] Attorney...had not demonstrated that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar of this state. On the reinstatement questionnaire that [he] submitted to the OLR, he stated that he had been denied an opportunity to earn a living practicing law and that this court's revocation order had caused him to lose an estimated $1 million in income. The referee indicated that these comments demonstrated an attitude that practicing law is a right rather than the privilege it truly is.
Moreover, the referee found that [he] had attempted to shift the blame for or minimize the misconduct that led to the revocation of his license, "forgetting that he was disbarred for dishonesty, incompetence, conversion of funds, and lying to a court, among other things."
The referee was particularly troubled by a number of reference letters submitted on [his] behalf. The reference letters came from individuals without knowledge of the law or of [his] legal abilities, and they consistently claimed that the misconduct claims against [him] had been spurious or unproven. Despite this court having found multiple violations of SCR 20:8.4(c), one such letter stated that there had been "no evidence of fraud" in the prior disciplinary proceeding. The referee questioned where these individuals would have gotten such false beliefs if not from [his] statements to them. The referee concluded that the inaccurate statements in the letters, which must have resulted from communications with [him] showed deliberate misinformation or at least a failure to take responsibility.
In addition, during the reinstatement proceeding [he] attempted to downplay the process that led to the revocation of his license to practice law in 2003. He described it as only a summary process, falsely insinuating that he did not have a full opportunity to contest the allegations of misconduct. The referee further stated that [he] had attempted during the reinstatement proceeding, albeit unsuccessfully, to revisit the question of his professional misconduct already decided by this court in 2003. The referee commented that [his] conduct during the reinstatement proceeding was "the definition of denial" and showed a lack of insight and remorse about his past misconduct.
Nice to see all the justices in agreement. (Mike Frisch)
More Than 24 Hours A Day
Another disciplinary decision from the web page of the Ohio Supreme Court:
The license of [a] Toledo attorney...has been suspended for two years, with the second year of that term stayed on conditions, for repeatedly overbilling the Lucas County juvenile and common pleas courts for her services as court-appointed counsel representing low-income clients.
In a decision announced today, the Supreme Court of Ohio adopted findings by the Board of Commissioners on Grievances & Discipline that [she] engaged in a pattern of professional misconduct by submitting bills to the courts claiming to have worked for more than 24 hours on the same date on three occasions, and billing for more than 20 hours on five other dates during 2006. In all, [she] invoiced the county for a total of 3,451 billable hours for work allegedly performed during that calendar year, a number that would require her to have worked almost 10 hours per day on all 365 days of the year. [The attorney] acknowledged that she had not worked that many hours, and that a number of invoices she submitted to the court did not accurately reflect her actual hours of work on the dates in question.
The Court agreed with the board’s conclusions that by knowingly billing for more hours than she had actually worked, [the attorney] violated the state disciplinary rules that prohibit charging an excessive fee; engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; engaging in conduct prejudicial to the administration of justice; and engaging in conduct that adversely reflects on the attorney’s fitness to practice law.
The court’s 6-0 per curiam opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, and Robert R. Cupp, and by Judge Sheila G. Farmer of the 5th District Court of Appeals, who sat in place of Justice Judith Ann Lanzinger. Chief Justice Eric Brown did not participate in the court’s deliberations or decision in the case.
Here is the court's opinion. (Mike Frisch)
Former Public Official Suspended For Obscenity Conviction
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today suspended the law license of [an] attorney and former Cuyahoga County Recorder...for two years based on his felony conviction for transportation and importation of obscene materials in violation of federal law.
[The attorney] has been under an interim license suspension since December 2008, when the Court was notified that he entered a guilty plea and was convicted of violating Section 1462(a), Title 18 of the U.S. Code, which prohibits “the use of an interactive computer service for the carriage in interstate or international commerce of numerous obscene ... pictures, writings and other matters of indecent character.” The bill of information charging [his] offense, issued two days after he entered into a plea agreement with federal prosecutors, did not specify the nature of the material found on two of his home computers, but indicated that the illegal conduct leading to the charge against him was committed between February 1998 and November 2004.
[The attorney] resigned from public office in May 2008 and was sentenced to 15 months in prison followed by a three-year term of federal supervised release.
In today’s decision, a 4-2 majority of the Court adopted a finding by the Board of Commissioners on Grievances & Discipline that [he] had engaged in conduct that adversely reflects on his fitness to practice law, but rejected the board’s recommendation that he receive a 12-month license suspension with credit for the time served under his interim suspension. The Court voted instead to impose a two-year license suspension with credit for time served, with the condition that [he] may not apply for reinstatement prior to completion of his term of supervised release.
The majority opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justice Evelyn Lundeberg Stratton entered a dissent, joined by Justice Judith Ann Lanzinger, stating that she would impose the sanction recommended by the disciplinary board, a 12-month suspension with credit for time served under interim suspension. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
The opinion is linked here. (Mike Frisch)
August 23, 2010
Santa Claus Judge Resigns
The Atlanta Journal Constitution reports on the recent resignation of a Superior Court judge in the wake of allegations of misconduct toward county employees:
According to their statement, the women said that they stopped by the judge's office Aug. 4 to bid him goodbye after learning they had been reassigned to another courtroom. The judge wanted to take some photographs and suggested the pair sit on his knee "just like he does to other female attorneys every Christmas when he is wearing his Santa Claus suit," they said.
The women said they were reluctant to do so, but it would have been awkward to say "no" to the 70-year-old man they described as a "grandfatherly figure."
"What happened later was a crime when he inappropriately touched us," the statement said. "What occurred was more serious than was reported."
The women said they decided not to speak out or take legal action because of their experience that the victim often becomes the target of criticism in sex crimes.
The incident came to light anyway after [the judge] made an admission to the Daily Journal. As a result, [the judge] submitted a letter of resignation to Gov. Sonny Perdue Tuesday. He will step down on his 71st birthday Oct. 4. His term was set to expire in 2012.
Tom Cauthorn, an attorney for [the judge], said Thursday that the judge does not want comment further on the matter.
It's not known if [the judge's] behavior is under investigation. The Judicial Qualifications Commission, the state agency that investigates misconduct involving judges, keeps all complaints confidential until they are resolved or closed.
Additional details from the same source:
The judge admitted to the Marietta Daily Journal that he "flicked" the bottoms of [an] Assistant District Attorney...and [a] Deputy Investigator... after the women sat on his lap to take a picture.
"If the ladies took it as offensive, then I apologize to them," [The judge] told the Daily Journal. "I do not think it was any more than that to it. There was no intent on my part. It was done in a place where several people were around. But rather than cause my family the embarrassment and go through a claims or whatever, I was willing to retire and wrote a letter of retirement to the governor."