September 10, 2010
More Than A Paralegal
The Massachusetts Supreme Judicial Court has suspended an attorney for a year and a day for allowing his non-lawyer assistant (hereinafter Porter) to practice law. The assistant had an expertise (which the attorney lacked) in employment and discrimination matters. The court rejected the "a paralegal could do it" defense:
The respondent argues that "the vast majority of Porter's activities fall within the ambit of permissible paralegal work." While many tasks performed by an attorney may also be performed by a paralegal, we require that an attorney supervise a paralegal's performance of such work. See comment 1 to Mass. R. Prof. C. 5.5(b) (rule "does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work"). Here, respondent did not supervise Porter in Porter's discrimination law practice. In addition, much of Porter's practice of law before the MCAD was unauthorized, as practice by nonlawyers before the MCAD is confined to the filing of complaints by a qualifying organization and participation in some informal conferences. [FN4] See 804 Code Mass. Regs. § 1.10(1)(c) (1999) (allowing MCAD complaints to be filed by nonprofit organizations "whose purposes include the elimination of the unlawful practice [s]"); 804 Code Mass. Regs. § 1.13(5)(b) (1999) (claimant may be accompanied to an informal investigative conference "by his or her attorney or other representative"). Porter's discrimination law practice at the respondent's firm was not covered under the regulation regarding nonprofit organizations, as he was not acting on behalf of a qualified organization; accordingly, Porter handled each of his cases at the MCAD under the appearances he filed in respondent's name, but without any supervision from the respondent or another attorney at respondent's firm. In addition, Porter's unsupervised activity at the MCAD went far beyond appearing at informal investigative conferences.
The court concluded:
Lawyers who employ nonattorneys are required to supervise the delegated work and retain responsibility for the nonattorney's work. The Massachusetts Rules of Professional Conduct indicate that failure to do so could result in a charge of assistance in the unauthorized practice of law. See comment 1 to Mass. R. Prof. C. 5.5. See also Restatement (Third) of the Law Governing Lawyers § 4 comment g (2000) ("[L]awyers and law firms are empowered to retain nonlawyer personnel to assist firm lawyers in providing legal services to clients. In the course of that work, a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice. Those activities are permissible and do not constitute unauthorized practice, so long as the responsible lawyer or law firm provides appropriate supervision ... and so long as the nonlawyer is not permitted to ... split fees ..."). In Matter of DiCicco, 6 Mass. Att'y Discipline Rep. 83, 89-91 (1989), the single justice held that, where an attorney formed a business with a paralegal to represent prison inmates experiencing administrative problems and listed the paralegal on letterhead as "Of Counsel," and then failed to supervise the paralegal's activities, the attorney assisted in the unauthorized practice of law. Similarly, in Matter of Jackman, 20 Mass. Att'y Discipline Rep. 263, 267-268 (2004) (Jackman ), the respondent was held to have provided the "necessary 'assistance' " to a nonmember of the bar to conduct the unauthorized practice of law when he agreed to allow the nonlawyer to manage the day-to-day operations of an office in which nonlawyers handled and settled personal injury cases, arranged to split legal fees from the business with the nonlawyer, and then failed to provide adequate supervision or oversight. The differences between Jackman and this case are minor: in Jackman, the nonlawyers operated from a separate office; here, Porter ran a separate practice within the respondent's office. In addition, the respondent allowed Porter to run his own unsupervised discrimination law practice from the respondent's law office, understanding that people would "assume that Porter was employed by [the firm] as a paralegal, despite the reality that Porter was carrying on his own practice." The total effect of the respondent's conduct was to facilitate Porter's unauthorized practice of law by creating an environment in which it could exist. Here, the respondent allowed it to flourish.
The respondent's efforts to curb Porter's conduct, by holding Porter out as a paralegal, instructing Porter on fee agreements, requiring Porter to turn over all fee payments to the firm, and minimally reprimanding Porter when he was informed of Porter's missteps, are not sufficient to avoid a charge of assistance in the unauthorized practice of law. See, e.g., Matter of Jackman, supra at 268 (finding it immaterial that nonattorneys did not hold themselves out as members of bar).
September 9, 2010
If I Were A Carpenter
The Illinois Administrator has filed a complaint alleging that an attorney falsely claimed to be a carpenter in order to qualify for the employee benefits of a client. The allegations:
1. At all times alleged in this complaint, Avenue, Inc., and/or Avenue Premier ("Avenue"), a carpentry and siding contractor in Illinois, employed Respondent as an attorney. At no time did Avenue employ Respondent as a carpenter. During the times alleged in this complaint, Respondent did not work as a carpenter.
2. At all times alleged in this complaint, Avenue was a party to a collective bargaining agreement with United Brotherhood of Carpenters and Joiners of America ("UBC"). Avenue employed carpenters who were eligible to receive health and pension benefits related to the collective bargaining agreement.
3. In or about December 2003, Frank Dimperio, a principal of Avenue, directed Respondent to seek health and pension benefits at UBC's Will County Carpenters Local 174 ("Local 174").
4. About January 6, 2004, Respondent went to Local 174 to apply for health and pension benefits. He received a UBC membership application that included the following statement over a line for the applicant's signature, requiring the applicant to make truthful statements in applying for membership:
I further agree that if it is found at any time that I have made false statements of any kind on this application, that my membership shall be declared void and all monies paid by me shall be forfeited.
The membership application also had a section for Respondent to mark or affirm a specific craft ("the craft section"). The craft section had ten choices: Carpenter, Diver, Federal Government, Industrial, Lather, Local Government, Millwright, Piledriver, Resilient Floorlayer and State Government.
5. About January 6, 2004, Respondent signed the membership application stating that he was a carpenter. Respondent returned the membership application to Local 174 along with his payment of a $300 initiation fee.
6. Between January 6, 2004, and December 12, 2008, Respondent maintained his union membership as a carpenter.
7. Respondent's membership application and labor union membership as a carpenter, as described above in paragraphs 5 and 6, were false and misleading, and Respondent knew that they were false and misleading, because Respondent was not a carpenter.
8. Respondent applied for UBC membership and maintained UBC membership from January 6, 2004, to December 12, 2008, in order to receive union health and pension benefits, to which he otherwise was not entitled.
9. Between January 6, 2004, and December 12, 2008, Respondent received union health and pension benefits through Will County Carpenters Local 174 Welfare Fund and Pension Fund. Will County Carpenters Local 174 Welfare Fund paid at least $130,000 in medical and prescription claims for Respondent and his family.
A majority of the Washington State Supreme Court has disbarred an attorney who was charged with a multiple-client conflict of interest and assisting the practice of a suspended lawyer. The majority was less than impressed with his attitude:
[The attorney] engaged in a deliberate attempt to stonewall, prolong, and ultimately defeat the disciplinary proceedings against him. Thus far, his campaign has been successful: he managed to drag out the disciplinary process for five years, consuming far more of the Board's resources than were necessary for a good-faith, thorough resolution of his case. He continues to assert that his conduct is upright and characterizes the entire disciplinary process as "fascist." [His] conduct throughout the proceedings undermines the self governing nature of the practice of law: if all lawyers accused of misconduct were as intentionally uncooperative as [him] has been, self-regulation would be impossible. The threat such conduct poses to the profession merits severe punishment. Therefore, we disbar [him].
The dissent would impose suspension, concluding that the actions characterized as uncooperative were "misguided, frivolous, and, undoubtedly irritating to the bar, the hearing officer and the Disciplinary Board" but within the governing procedural rules.
The dissenting justice should know that irritating a disciplinary board is the worst of all possible offenses, one that I have committed in the past and expect to do again if the opportunity presents itself. (Mike Frisch)
An attorney has been suspended for two years by the Wisconsin Supreme Court for an incident that led to his conviction for possession of heroin. The court describes the facts:
Attorney...'s professional misconduct in this matter stems from events culminating in a criminal conviction for possession of heroin. On or about March 7, 2009, law enforcement authorities executed a search warrant on the
Lake Genevahome of K.L. Attorney...was found in a room with K.L. despite the fact that K.L. was at the time released on felony bond with conditions including that she not have any contact with [him]. The search revealed cocaine and heroin in various locations in the room where K.L. and Attorney...were found. The search also revealed cocaine and heroin in a vehicle that had been driven by Attorney...and parked in the garage assigned to K.L.'s residence. During the search, Attorney...admitted to law enforcement his use of heroin and cocaine.
In March 2009 Attorney...was criminally charged with possession of narcotic drugs, possession of cocaine, possession of drug paraphernalia, and felony bail jumping in connection with this incident...Cash bail amounts were set for each defendant, and the defendants were ordered to have no contact with each other.
On March 8, 2009, Attorney...paid cash to bond himself out of the
jail. K.L. remained in custody on a $10,000 cash bail. On March 11, 2009, D.M. brought $10,000 cash to the jail for the release of K.L. A short time later that day, D.M. admitted to law enforcement that Attorney...had called her and instructed her to go to a specific conference room in a hotel in Delavan to pick up a bag containing a phone and charger, $10,000 cash, a map to the sheriff's department, instructions on what D.M. should tell the police if she was questioned, and an additional $500 for D.M. to split with K.L. Attorney...'s written instructions to D.M. included, in part, that D.M. should give the phone to K.L. and tell K.L. to use it to call [him], and further stated "[K.L.] can never say I bailed her out! Never!" Walworth County
The attorney stipulated to the discipline imposed.
Lake GenevaNews.net has this report from the arrest. (Mike Frisch)
September 8, 2010
Judges: Stay Out Of The Lobby
The Delaware Judicial Ethics Advisory Committee has opined that lobbying and judging do not mix:
Lobbying is political in nature. The purpose of registering as a lobbyist is to promote the interests of a client by influencing the legislature. A paid lobbyist may be required to participate in political gatherings and fundraisers, which judicial officers may not attend. Representing a client as a lobbyist, for compensation, is incompatible with the ethical constraints accepted by judicial officers.
Judges may properly lobby the legislature on behalf of measures to improve the administration of justice. (Mike Frisch)
Complaint Against Immigration Attorney Reinstated
The New York Appellate Division for the First Judicial Department reinstated a dismissed action brought by an employee who was represented in an immigration matter by an attorney retained by the employer. The court found that there were issues that could not be resolved on motion:
...even if it could be said that defendant, despite the lack of an expert, sustained his prima facie burden simply by pointing to plaintiff's failure to maintain a valid passport, plaintiff raised an issue of fact sufficient to defeat the motion. Plaintiff's expert opined in his affidavit that in his experience, the failure to maintain a valid passport has never resulted in a person's loss of legal immigration status. Defendant failed to rebut this. Therefore, a trial is necessary to determine whether plaintiff's actions excuse defendant from liability.
Not even defendant makes the argument, advanced by the dissent, that even assuming plaintiff was illegally benched and had a valid passport, it still would have been proper for defendant to petition for a renewal of the visa. In any event, the argument is meritless. First, the dissent places the burden on plaintiff to explain what he was doing during the 16 months he was not working for WFI [the employer] , when it was defendant's burden to negate the allegation in the complaint that plaintiff was illegally benched. The dissent fails to address the fact that defendant presented not one whit of admissible evidence that plaintiff voluntarily separated himself from WFI.
Furthermore, the dissent's view would permit an unlawful and vindictive act by an employer to work to the detriment of an innocent alien. We find it improbable that defendant would have lacked any ability to present these unique facts to immigration authorities and explain the extraordinary prejudice that would befall plaintiff were he forced to make a trip to a war-torn country to validate a renewed visa that could have simply been extended had his employer not acted in a manner contrary to law. Even if the regulations were so inflexible, as the dissent believes, it would have been necessary for defendant to support his position with expert testimony explaining why even under such extreme circumstances his hands were tied. Indeed, as discussed above, the immigration regulations at issue here, including the section requiring a valid passport at the time an application for extension is filed, are hardly self-explanatory, nor is it possible to conclude from their face that defendant had no chance of successfully securing an extension of plaintiff's visa. Accordingly, we reject the dissent's position that Supreme Court was "able to assess the adequacy of the legal services rendered, and require[d] no expert guidance."
The dissent notes that the employer had rehired the employee after the events that were the basis of the case:
The failure of proof on the dismissal motion lies not with defendant, but with plaintiff. Significantly, the reason for plaintiff's "separation" from his employment — whether benching, as plaintiff now maintains, or abandonment of his job, as WFI records indicate — presents a question of fact. Plaintiff has submitted no affidavit in opposition to the motion explaining why he left WFI or what he was doing during the ensuing 16 months; nothing in the record provides an explanation, including the Kuck affidavit, which — as the affidavit of an attorney unaccompanied by documentary evidence — is without probative value (Zuckerman v City of New York, 49 NY2d 557, 563 ). In the absence of a submission, in admissible form, attesting that plaintiff at all times met the conditions of his H1-B visa, the opposition fails to allege that but for defendant's malpractice, plaintiff could have received a visa extension (see Yong Wong Park v Wolff & Samson, P.C., 56 AD3d 351 , lv denied 12 NY3d 704 ). The expert's submission is thus procedurally deficient, warranting dismissal of the complaint on that basis alone (see Alvarez v Prospect Hosp., 68 NY2d 320, 327 ), since plaintiff has failed to provide a viable theory of malpractice by defendant supported by the requisite factual predicate.
Plaintiff's opposition evades discussion of the circumstances under which he left WFI and what he was doing during the 16 months before he was rehired, and fails to address such matters as whether he took alternative employment to support his family (a wife and a child born in February 1999) during this period. The opposition to the motion only suggests, by indirection, that there was some misconduct on the part of WFI in connection with plaintiff's separation from his employment with the company, but neglects to supply any information to support that intimation or to connect it to the conduct alleged to constitute malpractice. Finally, plaintiff coyly offers only the affidavit of his purported expert in immigration law, in lieu of a sound legal argument supporting his cause of action.
September 7, 2010
Stop Means Stop
An Illinois hearing board has recommended a nine-month suspension of an attorney who engaged in unauthorized practice during a period of disciplinary suspension. The board concluded:
Respondent admitted he engaged in the unauthorized practice of law, and there is little question he did so. The Illinois Supreme Court has found that a "[d]efinition of the term ‘practice of law' defies mechanistic formulation." In re Discipio, 163 Ill. 2d 515, 523, 645 N.E.2d 906 (1994). Instead, in determining whether conduct amounts to the practice of law, the Court has examined the character of the conduct. Id. at 523. It is well established that a person engages in the practice of law when he gives advice or renders services that requires the use of legal knowledge or the skill to apply legal principles. In re Howard, 188 Ill. 2d 423, 438, 721 N.E.2d 1126 (1999); Discipio, 163 Ill. 2d at 523. The Court has articulated examples of conduct constituting the practice of law including, preparing or explaining legal instruments, preparing pleadings and other papers incident to actions, giving advice on questions of law, and giving an opinion regarding the right to maintain an action. In re Nash, 03 CH 128, M.R. 20418 (Nov. 22, 2005) (Hearing Bd. Rpt. at 26); Discipio, 163 Ill. 2d at 525.
Respondent was suspended from the practice of law from February 13, 2008, to June 13, 2008. In anticipation of his suspension, in January 2008, Respondent hired [an attorney] as an associate to work in his law office. [She] was a recent law school graduate, and had been licensed to practice law for three months. Respondent knew [she] was too inexperienced to assume full responsibility for his office.
During his suspension, Respondent essentially performed all the legal activities he would have performed if he had not been suspended, except having regular client contact and appearing in court. He was in constant contact with his office by telephone, e-mail and facsimile. He told [the associate] and [a paralegal] exactly what action to take on specific client matters. He received a daily report on each client matter and instructed [the associate] how to handle every aspect of each case. [The associate] did nothing without Respondent's approval. Respondent told her the arguments to make and the orders to request in court hearings. He dictated the language to be used and statements to be made in oral and written communications with clients and opposing counsel.
A pretty light sanction for a second offender whose offense was the violation of a suspension order. (Mike Frisch)
A Delayed Report, A Lame Excuse
Today's award for chutzpah goes to Hearing Committee No. Ten of the District of Columbia Board on Professional Responsibility. After taking nearly three years to decide a disciplinary case, the hearing committee explains why:
Both parties filed overlong post-hearing briefs: Bar Counsel's Brief is 77 pages and Respondent's Brief is 149 pages, plus an Addendum. As there were few facts in dispute and the parties stipulated to the admissibility of all exhibits, the parties' overlong briefs did not advance the panel's understanding of the case. Indeed, they imposed an undue burden on the panel and contributed to the panel's substantial delay in issuing its Report and Recommendation.
The rule requires that the report be filed in 120 days, not three years. If readings briefs and deciding cases is an "undue burden," then these members should resign and let someone with the time to do the work take their place. If the facts were largely undisputed, please explain the three-year failure to render a decision.
This excuse is horsefeathers, a tamer version of the word I'd prefer to use.
The case is In re Kenneth Martin, and can be accessed though this link, since the Bar in its finite wisdom has seen fit to prevent linking to decided cases. They recommend a one-year suspension. (Mike Frisch)
Neither Lawyer Or Prosecutor
The South Carolina Supreme Court has held that the prosecution of misdemeanor offenses by a non-lawyer business agent violated criminal statutes regulating the unauthorized practice of law. The court considered the public policy interests:
If a private party is permitted to prosecute a criminal action, we can no longer be assured that the powers of the State are employed only for the interest of the community at large. In fact, we can be absolutely certain that the interests of the private party will influence the prosecution, whether the self-interest lies in encouraging payment of a corporation's debt, influencing settlement in a civil suit, or merely seeking vengeance. Petitioner candidly acknowledges in its brief that the non-lawyers are authorized by the companies "to represent their interests" in the criminal proceedings.
We find that allowing prosecution decisions to be made by, or even influenced by, private interests would do irreparable harm to our criminal justice system. At the very least, there is "too much opportunity for abuse and too little motivation for detachment." See State v. Martineau, 808 A.2d 51, 55 (N.H. 2002), Nadeau, J., concurring. Though we certainly understand the practical concerns raised by the dissent, we are confronted with a higher question here. The convenience and fiscal economy of private prosecution may be facially appealing, but we must not embrace them at the expense of fundamental fairness and justice.
As to those practical concerns, the dissent notes:
One of the purposes of magistrate's court is to dispense with the formalities required of a court of general sessions, allowing for a more expedient and layperson-friendly disposition of certain select grievances and offenses. The fact that the General Assembly has not required magistrates to be attorneys is further indication of its intention to retain the citizen focus of the court. See S.C. Code Ann. § 22-1-10 (2007). In short, magistrate's court was created by the General Assembly to be the "peoples' court," a distinction that seems to have been overlooked by the majority in its analysis.
Finally, at the risk of discussing a possible parade of horribles, the practical consequences of the majority's decision should nonetheless be examined. This decision will place an additional burden on the South Carolina business community, as well as on the already budget-strained and time-challenged prosecutorial arm of the State. Without the ability to make a cost/benefit analysis of whether to pursue their own claims, corporations may be more willing to pursue prosecution, secure in the knowledge that the burden of prosecuting the claims rests squarely on the shoulders of the solicitor's office. On the other hand, overburdened solicitor's offices may exercise prosecutorial discretion to not prosecute these minor cases, which might very well have the end result of businesses refusing to accept checks in payment for merchandise. As discussed by then acting circuit judge, John Kittredge in Lexington County Transfer Court, limited resources and budgetary constraints can serve as a valuable consideration in determining whether practices should qualify as an exception to the prohibition against the unauthorized practice of law. 334 S.C. at 53-54, 512 S.E.2d at 794. As a state, we certainly want these and all crimes to be prosecuted; nonetheless, a process that becomes too cumbersome and costly for the State to pursue does not successfully address the problem. Permitting a process whereby business entities can pursue these claims through an agent, in a manner which is cost-effective for both the State and the corporations, yet checked by the integrity of our judicial system, is, in my opinion, a practice which should be sanctioned by this Court.
September 6, 2010
Harassing Deputy DA Gets Two Year Suspension
A former deputy district attorney in Fresno, California has been disciplined in the wake of his conviction for identity theft. This report from KSEE24News quotes a press release from the Attorney General's office:
Brown Charges Deputy District Attorney With Stalking, Impersonation, Identity Theft
FRESNO—California Attorney General Edmund G. Brown Jr. today filed felony charges against David Jones, accusing the Fresno County Deputy District Attorney of stalking, stealing the identity, and falsely impersonating his ex-girlfriend, Jane Doe.
“Jones stole his ex-girlfriend’s identity with the sole purpose subjecting her to vicious and sexually explicit harassment,” Attorney General Brown said. “This case demonstrates that identity theft is not just a financial crime anymore.”
The Attorney General’s Special Crimes Unit launched an investigation into Jones in October 2007 after discovering that he had constantly harassed Jane Doe from July 2006 through August 2007 and had stolen her identity. During this period of harassment, which included threatening phone calls and unwanted advances, Jones impersonated Doe on Internet singles sites where he solicited individuals to contact her for sex.
While impersonating Doe, Jones encouraged men to call her and meet her at a Starbucks near her home. Feeling concerned about her physical safety and the safety of her daughter, Jane Does reported the unsolicited contacts to local law enforcement.
In October, the Attorney General’s Special Crimes Unit joined the Fresno County Sheriff’s Department’s investigation into Jones’s criminal activities.
The California Bar Journal summarizes the sanction:
[The attorney was] suspended for three years, stayed, placed on four years of probation with a two-year actual suspension and was ordered to prove his rehabilitation and take the MPRE. He will receive credit for the interim suspension that began Aug. 27, 2008. The order took effect Jan. 1, 2010.
Jones was convicted in 2008 of one count of impersonating someone. He harassed a woman by posting her picture and posing as the woman on two Internet sites where he solicited individuals to contact her for sex and to call her at work and at home. Some of the conduct occurred while he was a deputy district attorney. He was placed on paid administrative leave and later resigned.
In mitigation, he had no prior discipline record.
September 5, 2010
The Hard Sell
The web page of the Massachusetts Board of Bar Overseers reports reciprocal discipline based on the revocation of the attorney's Virginia license. The facts:
The respondent has operated an Internet website, http://www.investinginland.com, through which he has marketed home study courses and booklets regarding land investing. In 2004, a consumer ordered, paid $99 for and received some materials from the respondent’s website. The respondent then sent the consumer an email offering additional material for $795. The consumer paid the respondent for the additional material with his Visa credit card. When the consumer did not receive the material, despite repeated requests, he disputed the credit card charge. Visa issued a charge-back, which was upheld over the respondent’s protests.
The respondent then sent the consumer a stream of emails demanding payment of the original $795 charge plus an additional $420 for the respondent’s “fees and expenses” in responding to the charge-back. The respondent threatened the consumer with criminal action, a “federal mail fraud complaint” and “imminent arrest”—“See you in court. You’ll be in the handcuffs”. When the consumer informed the respondent that he was represented by a lawyer, the respondent wrote back that “I don’t care if you are represented by the Pope.” In a later email, the respondent told the consumer “I’m a practicing lawyer in SIX jurisdictions, Federal and State. Your lawyer is giving you BAD advice.” When the consumer’s lawyer contacted the respondent and directed him to stop contacting the consumer directly, the respondent contacted the consumer directly and added $150 to his demand for “costs associated with having to read and reply to that truly dumb letter your so-called ‘lawyer’ sent me.”
In a second matter, another consumer purchased material from the respondent’s website for $59.80 and then mistakenly disputed the charge on his credit card. The consumer recognized his error and offered to pay the respondent $97 for the original charge and an administrative fee the respondent claimed to have incurred. The respondent rejected the offer and repeatedly sent the consumer emails threatening the consumer with felony charges, arrest and jail unless he paid the respondent an amount that increased first to $540 and then to $1,180. The consumer was terrorized by the respondent’s threats because he relied on the respondent’s statements as a lawyer and believed that he was going to be arrested.
The misconduct involved using threats of criminal charges to obtain an advantage in a civil matter and unauthorized communication with a represented party.
The attorney had failed to report the Virginia sanctions to the Massachusetts bar authorities. (Mike Frisch)