September 17, 2010
Blaming The Messenger
An attorney who had been disbarred in Maryland for misappropriation of client funds has received the identical sanction as reciprocal discipline by the West Virginia Supreme Court of Appeals. The court found no basis for any lesser penalty than that imposed by the Maryland court:
The record is clear that [the attorney] converted client funds to pay a civil judgment that had been rendered against him - a civil judgment that was related to his work as an attorney. Instead of filing a claim under his malpractice insurance policy or obtaining a loan, [he] instead decided to convert funds from his client trust account to pay the civil judgment against him. Thereafter, [his] personal assistant...obtained legal counsel to protect her interests. At [her] insistence, the converted funds were repaid and [the attorney] provided [her] a signed letter exonerating her from any wrongdoing.
However, [the attorney] did not discontinue using client funds to pay for his personal and business obligations, and in November 2008 [the personal assistant] quit her employment with [him] and shortly thereafter filed a complaint with the Maryland Grievance Commission. In its investigation, the Commission requested copies of all records associated with [his] client trust accounts, but [he] refused. [He] then offered a voluntary suspension as punishment for his misconduct, but that offer was rejected. Instead, [he] was given the option of voluntary disbarment. [He] accepted the voluntary disbarment.
Shortly after his voluntary disbarment, [the attorney] published a letter to the community in the Cumberland, Maryland newspaper where he wrote, in part, "[w]ere it not for the letter writing of my former [sic] trusted and loyal office manager/Bookkeeper, who worked for me almost 20 years . . ., this matter would never have become an issue with the Maryland State Bar. Presently, I continue practice as a member in good standing in the West Virginia Bar.”
That last point caught the attention of the West Virginia court:
While [the attorney] professes to be remorseful for his unethical conduct, [his] letter to the Cumberland paper following his disbarment in Maryland suggests otherwise. As opposed to taking that opportunity to apologize to the community for his unethical conduct, [he] instead appeared to be blaming his long-time personal assistant for turning him into the Maryland lawyer disciplinary authorities. [He] fails to see that [the personal assistant], by reporting him to the Maryland disciplinary authorities, did more to protect [his] clients than [he] (who was converting client funds).
September 16, 2010
A Bad Time In South Dakota
A person who was one of four guests that suffered from carbon monoxide poisoning while staying at the Star Brite Inn in Yankton, South Dakota retained an attorney shortly after the incident. The attorney gave the client a draft summons and complaint but never filed it. The client assumed that all was proceeding in a normal fashion. It was not. Rather, the attorney was in the process of getting suspended and disbarred.
The client made some efforts to contact the attorney to no avail. Eventually, she learned of the attorney's disbarment from counsel for one of the other victims. By then, the three year statute of limitations had run.
The South Dakota Supreme Court held that the doctrine of equitable tolling did not operate to save the claim. Even though the client may have been lulled by the (never filed) draft complaint, she did not act with sufficient diligence in the two years after the attorney had dropped out of sight. The client had made a conscious decision to do nothing in the face of the attorney's apparent abandonment of his office and practice. (Mike Frisch)
Judged By His Peers
In a rather unusual case in which a justice of the Washington State Supreme Court had sued the state Attorney General for an allegedly inadequate response to a records request, the state supreme court held (with the litigant-justice not participating) as follows:
This case presented unique legal and factual complexities, which the trial court carefully considered. We affirm the trial court's decisions on all issues except (1) the interpretation of the attorney-client privilege and (2) the rulings on the claimed exemptions for SPDs 44 and 50-52. We do not reach the first issue because we assume, without deciding, that the attorney-client privilege protects communications only if they pertain to legal advice. On the second issue, we hold that the claimed exemptions were invalid and AGO's withholding of the documents was wrongful. We treat these documents as one "record" and impose the trial court's $8 per day penalty accordingly. Finally, because Justice Sanders prevailed in part, we award him 25 percent of his costs and attorney fees on appeal.
The litigation involved the justice's visit to the unit a prison for sex offenders at McNeil Island, which had resulted in much publicized ethics charges against him. (Mike Frisch)
Too Late For Probate
In a case characterized by the New Jersey Appellate Division as involving facts "so uniquely challenging that they have the feel of an academic exercise, designed by a law professor to test the limits of a student's understanding of probate law," the court affirmed the lower court's judgment to decline to admit a will into probate.
An attorney had drafted wills for a husband and wife. He later drafted two codicils for the wife. All three documents were executed as drafted.
Then, the husband died. The widowed wife came to the attorney's office about a month later and gave him a handwritten note expressing her intent to change her will. The attorney "dictated the entire will while [the wife] was [in his office]." The wife went to lunch while the attorney put the draft into final form. Sadly, she died about an hour after the meeting without having the opportunity to review and sign the new will.
The decedent had no biological children but seven stepchildren who she regarded as her own. She also had two nieces who were close to her. The draft changes would have benefited the nieces, who were plaintiffs in the case. The court regarded the draft as a "work in progress, subject to reasonable revisions and fine tuning."
The court here agreed with the lower court that the will could not be admitted into probate. The court remanded the matter to consider the amount of counsel fees to award. (Mike Frisch)
September 15, 2010
Have A Nice Day
The Illinois Administrator has filed a complaint alleging that an attorney failed to cooperate with a bar investigation, engaged in unauthorized practice after suspension for non-compliance with registration requirements and engaged in misconduct toward an opposing party. The alleged misconduct took place after a court proceeding had been continued. The complaint states that the attorney spoke to the opposing party as follows:
As both Respondent and [the opposing party] left the courtroom, Respondent stated the following to [her]: "have a nice day, you piece of shit."
The failure to cooperate charges relate to the ensuing bar matter. According to the complaint:
On the afternoon of April 13, 2010, one day before the Inquiry Board meeting, Respondent sent correspondence to the Administrator which stated, in part, "I sincerely apologize for not responding sooner to your inquiry. There is no excuse for letting the matter get to this point. I suppose that my inaction was, in part, motivated by a resentment that I would have to answer such petty complaints." At no time in his letter, did Respondent address his failure to appear pursuant to subpoena on March 4, 2010, nor did he request the opportunity to appear before the Inquiry Board pursuant to Commission Rule 55.
As of April 14, 2010, the date the Inquiry Board voted that a complaint be filed in this matter, Respondent had not appeared in compliance with the Administrator's subpoena. Respondent's appearance was never waived or excused.
The "piece of s**t" comment is charged as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice. I predict that the Administrator will lose on both counts.
The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge.
We sometimes argue over the line where conduct stops being uncivil and starts being unethical. If this conduct is deemed to cross that line, Lord help us all (or me, at least). (Mike Frisch)
Tax Obligation Discharged, Attorney Reinstated
The Oklahoma Supreme Court has granted the reinstatement petition of an attorney who had been suspended for four years. Reinstatement was deemed appropriate notwithstanding the fact that the attorney had failed to pay tax liabilities that had led to the suspension. The obligation had been discharged in bankruptcy:
In her petition for rehearing, [the attorney] argued (as did the dissenting opinion) that refusing to restore her license based on her nonpayment of the discharged tax liability is contrary to 11 U.S.C. § 525(a), and the United States Supreme Court's decision in Perez v. Campbell, 402 U.S. 637 (1971). Upon further consideration, we now conclude that § 525(a) precludes any consideration of a debt discharged in bankruptcy in connection with the debtor's application for a government granted license.
To be sure, an important state interest is served by recognizing that suspended attorneys have a moral obligation to pay any tax liability that led to their suspension. Likewise, this Court has an interest in applying such a standard fairly and consistently to achieve justice, to rehabilitate errant members of the bar and to protect the public. However, the United States Supreme Court has made it clear that such interests cannot be enforced when to do so would frustrate the purpose of the Bankruptcy Act.
In Perez, the Supreme Court said that "'(o)ne of the primary purposes of the Bankruptcy Act' is to give debtors 'a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.'" 402 U.S. at 648 (citations omitted). The Court also concluded that section 525(a) was enacted to fulfill this purpose and observed that "any state [action] which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause." 402 U.S. at 652. Suspended attorneys who obtain a bankruptcy discharge of the tax liability that led to their suspension are not excepted from the protection afforded by section 525(a), and the existence of a state interest in perpetuating such liability is not a sufficient reason to deprive such attorneys of "the full effectiveness of the federal law."
Aside from [her] nonpayment of the tax liability that led to her suspension, she has otherwise met the requirements for reinstatement. The record reflects that [the attorney] has demonstrated (1) appreciation for the seriousness of the misconduct that led to her suspension; (2) remorse for the harm done and the adverse impact of the misconduct on her clients, the legal profession, and the judicial system; (3) compliance with the condition of suspension to refrain from the practice of law; and (4) competence in the learning of the law. If this Court gives the bankruptcy discharge and § 525(a) "full effectiveness," then we have no further inquiry to make about the bona fides of [her] resort to bankruptcy vis-à-vis her reinstatement to the practice of law. Not only has [her] inability to pay the tax liability been conclusively established and the liability extinguished, but the party to whom the liability was owed - the United States Internal Revenue Service - raised no objection to such actions by the bankruptcy court.
The court withdrew an earlier opinion that had denied reinstatement. It is unusual to see a motion for reconsideration granted in a bar discipline matter. The original dissent eventually carried the day.(Mike Frisch)
A Classic Conflict Of Interest
An attorney who had represented a driver and two passengers in an automobile accident matter was reprimanded by the New Jersey Disciplinary Review Board:
Unquestionably, respondent engaged in a conflict of interest situation by representing all three clients, when their interests became adverse. From the moment that respondent became aware of the possibility that [client] Hunter might not have used the turn signal, a conflict of interest emerged. His representation of both driver and passengers might have been permissible only if (1) the other driver was totally culpable, (2) the culpable driver's insurance coverage was sufficient to cover both claims, and (3) respondent had obtained his clients' written consent to the representation (citing a 1973 ethics opinion).
The attorney had two prior disciplinary actions for unrelated misconduct, both over a decade ago. (Mike Frisch)
September 14, 2010
Over the Limit
The Illinois Administrator has filed disciplinary charges alleging that an attorney was convicted of offenses arising out of the following incident:
On June 28, 2008 and into the early morning hours of June 29, 2008, Respondent consumed approximately eighteen beers and seven hard liquor alcoholic beverages during his attendance at a baseball game and later at an establishment called In Laws located in Lake County, Illinois. After consuming the alcoholic beverages, Respondent left In Laws at approximately 1:30 A.M. on June 29, 2008 and, with a passenger, began driving his motor vehicle. Shortly thereafter, Respondent was involved in a motor vehicle accident, at the intersection of Route 21 and Grand Avenue in Gurnee, after the vehicle he was driving turned left in front of oncoming traffic and collided with an oncoming vehicle.
The driver of the other vehicle that Respondent collided with, as well as the two passengers in that vehicle, suffered injuries, including a broken shoulder, a skull fracture, a fractured foot requiring multiple surgeries and an emergency C-section.
On June 29, 2008, after his transport to Vista Medical Center in Waukegan, Respondent was arrested and charged with driving under the influence of alcohol, felony DUI with great bodily harm, failure to reduce speed and failure to yield turning left. At the time of his arrest, Respondent submitted to chemical testing to determine his blood-alcohol concentration, resulting in a reading of .28, which is more than three times the legal limit of .08.
Illinois was in the forefront of the movement to treat alcoholism as a mitigating factor in bar discipline where the attorney establishes causation and substantial rehabilitation. Should such proof be treated as mitigation under these circumstances? (Mike Frisch)
Frivolous And Obscene
The New York Appellate Division for the First Judicial Department has imposed a two-year suspension for an attorney's behavior in his own divorce case. The court sets out the findings:
Respondent, born in 1961, graduated from Fordham College and Law School, after which he worked at a number of law firms and corporations as in-house counsel. More recently, he has worked as a contract attorney on various projects. In 1990, he married. He has two sons from that marriage. In August 2005, the wife served respondent with divorce papers. During the course of the matrimonial action, respondent pleaded guilty in Bronx Criminal Court to a disorderly conduct violation, based on his contacting his wife and children in disregard of an order of protection. Apparently, the matrimonial action is not yet resolved.
Beginning in February 2006, and in spite of his divorce attorney's advice, respondent sent a series of hostile, obscene, and derogatory written messages to his wife, her successive lawyers, the children's law guardian, the law clerk for the judge presiding over his matrimonial matter and others. The correspondence was riddled with profanities, (primarily of a scatological and sexual nature), as well as ethnic slurs, sexist and homophobic remarks. He also threatened to cut off one attorney's pinkie finger and mail it to his wife. He insulted the judge presiding over the matrimonial case and, without basis, questioned that judge's integrity. He accused opposing counsel of dishonesty and exploitation of the couple's children in order to obtain excessive fees.
In addition, in May 2007, respondent filed a frivolous pro se action in Federal Court in California, where he was living at the time, against at least 29 defendants, including his wife, her mother, the wife's contemporary and prior attorneys, the judge, three supervising judges, the American Bar Association (ABA) and the brokers who assisted with the sale of the marital home. The action essentially alleged a violation of civil rights under 42 USC § 1983 in connection with his divorce. The Federal Court dismissed the case.
The court declined to adopt the recommendation of the departmental disciplinary committee of a three-year suspension. (Mike Frisch)
Billing Fraud By Outside GM Counsel Alleged
The Illinois Administrator has filed a complaint alleging that an attorney retained by General Motors falsely billed GM for four mediation sessions that did not take place. The charging document alleges in pertinent part:
5. On December 3, 2009, Respondent sent a letter to GM, which enclosed billing statements detailing Respondent's purported expenses in her Indiana cases, as well as a spreadsheet summarizing the total expenses being billed in each of her Indiana cases. The billing statements contained, in part, four $600 charges for costs purportedly incurred for mediations in the Johnson, McCoy, Mazur, and Ramsey cases. In addition, the spreadsheet indicated, in part, that Respondent had incurred $600 in total costs in each of the cases of Johnson, McCoy, Mazur, and Ramsey.
6. The portions of the billing statements and spreadsheet described in paragraph five, above, which Respondent enclosed with her December 3, 2009 letter to GM, were false, and Respondent knew they were false, because Respondent knew that no mediations had taken place in the Johnson, McCoy, Mazur, and Ramsey cases, since she was the attorney of record for GM in those cases, and she knew that those cases had settled prior to any expenses being incurred for mediation services.
7. On January 12, 2010, GM sent Respondent an e-mail requesting, in part, "further information" regarding the mediations which, according to the billing statements and spreadsheet Respondent had enclosed with her December 3, 2009 letter to GM (paragraph five), had purportedly taken place in the Johnson, McCoy, Mazur, and Ramsey cases.
8. Respondent knew that no information existed that was responsive to GM's January 12, 2010 e-mail, which is referenced in paragraph seven, above, since no mediations had taken place in the Johnson, McCoy, Mazur, and Ramsey cases.
9. On or about January 13, 2010, Respondent created four invoices that purported to be from "National A.D.R. Services" and listed fictitious invoice numbers. At no time had National A.D.R. Services authorized Respondent to create or issue any invoices on its behalf. On January 13, 2010, Respondent sent a letter to GM enclosing, in part, the four invoices that she had created. Respondent stated in her letter that she had obtained the four invoices from her case files. The purported invoices from National A.D.R. Services stated, in part, that mediations had taken place in the Johnson, McCoy, and Mazur cases on November 30, 2009, and in the Ramsey case on December 1, 2009. The purported invoices further indicated that National A.D.R. Services had billed Respondent $600 for each of the mediations in the Johnson, McCoy, Mazur, and Ramsey cases.
10. The invoices submitted to GM by Respondent (paragraph nine), as well as her statement in her January 13, 2010 letter to GM (paragraph nine) that she had obtained those invoices from her files, were false, and Respondent knew they were false, because:
Respondent had fabricated the invoices, and she knew that National A.D.R. Services had not authorized her to create or issue those invoices on its behalf; and
Respondent knew that no mediations had taken place in the Johnson, McCoy, Mazur, and Ramsey cases, since she was the attorney of record for GM in those cases, and she knew that those cases had settled prior to any expenses being incurred for mediation services.
No Summary Judgment In Suit Against Fen/Pfen AttorneyThe Mississippi Supreme Court has concluded that partial summary judgment was improperly granted to an attorney sued by former clients who he had represented in diet drug litigation. The former clients had sought to pay on a quantum meruit basis rather than under a claimed 45% contingent fee. The court here held that questions about the authenticity of the contingent fee agreement and possible coercion created jury questions that precluded summary judgment. (Mike Frisch)
September 13, 2010
Sex With A Client's Spouse, Part II
Is there an epidemic?
On the heels of the South Carolina admonishment of an attorney for sex with the client's spouse (reported earlier today) comes a decision of the Michigan Attorney Discipline Board that upped the 179 day suspension imposed by a hearing panel and suspended the attorney for three years as a result of his affair with his client's wife.
The attorney represented the husband in an action for separate maintenance and thereafter commenced a sexual relationship with the client's wife (who also was represented by counsel). The attorney's client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney "failed to disclose his firsthand knowledge of that affair."
The client sought out other counsel, who hired a private investigator. When the client discovered the affair, he demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees."
As one might imagine, the cuckolded client has little use for the profession:
I have no trust. I have no trust in the system. You know, I've never even had to deal with anything through the law in my life, and I hired him as my attorney and expected him to represent me and he did everything but.
A dissent would impose disbarment. (MIke Frisch)
Marriage Not Fiduciary Relationship
The Maryland Court of Special Appeals affirmed the grant of summary judgment in a matter in which an attorney wife had sued her attorney husband for tort claims based on the husband's "alleged financial malfeasance during the marriage."
The husband had filed for divorce after the tort claim was filed and was granted a stay while the divorce case was pending. After the divorce was granted, the husband was able to secure summary judgment on the tort claims.
The opinion describes the husband as having practiced law at a "large firm in Washington, D.C." where he was a partner and, for a period of time, the managing partner. The wife practiced until 2000 when she stayed home on a full time basis to raise the couple's two children and write a book.
The court held that Maryland husbands and wives are "not true fiduciaries, as a matter of law, absent an agreement establishing that relationship. Moreover, Maryland law also makes plain that a husband and wife are presumed not to occupy a confidential relationship."
Some details are reported in a 2007 post on Abovethelaw. (Mike Frisch)
Asserting Disability Issues In Pennsylvania Bar Discipline
From the web page of the Pennsylvania Disciplinary Board:
The Disciplinary Board is publishing changes to Rule 301(e) of the Pennsylvania Rules of Disciplinary Enforcement, which deals with attorneys who assert mental disability defenses in disciplinary hearings.
The current Rule 301(e) does not require the attorney to identify the condition causing the claimed disability, or provide proof of a causal connection between the condition and the attorney’s ability to adequately defend against the charges in the pending disciplinary proceeding. The attorney only needs to sign a certificate of admission of disability and file the certificate with the Supreme Court, which automatically transfers the attorney to disability inactive status. This places all disciplinary proceedings in abeyance until the attorney is found able to provide a defense.
The revisions will require the attorney asserting a mental disability defense to file a certificate with the Supreme Court identifying the precise nature of the disability; the date of the onset or initial diagnosis of the disability; and an explanation of the manner in which the disability makes it impossible for the respondent to prepare an adequate defense. The attorney must append to the certificate an opinion of at least one medical expert stating that the respondent is unable to prepare an adequate defense including the basis for the medical expert’s opinion. The Supreme Court may deny the application or take other action, including the option of ordering an examination of the attorney by medical experts, at the attorney’s expense. The attorney would be placed on inactive disability status pending the Court’s determination. The order transferring the attorney to that status would be a public order, but the certificate and evidence in support of it would not be available to the public.
The Notice of Proposed Rulemaking will be published in the Pennsylvania Bulletin on September 4, 2010. Comments will be accepted until October 1, 2010. The text of the Notice may be viewed here.
An Upstanding Member (Of The Bar)
The South Carolina Supreme Court has issued an anonymous admonition to an attorney who had sex with the spouse of a current client:
Respondent has been an upstanding member of this bar for thirty-seven years, and before this action was filed, had never run afoul of the Rules of Professional Conduct. Nevertheless, the Commission on Lawyer Conduct received a letter from an individual (Client) alleging an inappropriate sexual relationship between his wife, (Wife), and Respondent, whom he claimed was representing Client in three on-going legal matters at the time...Respondent admitted to having a social relationship with Wife, and also informed ODC that upon learning of Client's suspicions, Respondent had sent a letter to Client informing him of his intent to withdraw as counsel and enclosing three consent orders relieving him of further representation.
Thereafter, ODC replied to Respondent's response by requesting additional information, including the following: "Your letter states that you have socialized with Client's estranged wife beginning after your attorney-client relationship with her ended. Please provide this date." In answer, and upon the advice of counsel, Respondent stated that he had socialized with Wife sometime earlier that year. Subsequently, ODC sent a further letter, asking the more direct question: "Have you had sexual relations with [Client]'s wife." In reply, Respondent submitted a signed affidavit attesting that he engaged in sexual relations with Wife on one occasion, but had informed Client two days later that he could no longer represent him and had terminated all further communication with Wife. One week later, ODC gave Respondent notice that it had been authorized to conduct a full investigation into Client's allegations, specifically finding Rules 1.7, 1.8, and 8.4, SCRPC, Rule 407, SCACR relevant to its investigation.
The court's analysis of the ethics of the situation:
The Panel specifically stated it did not condone Respondent's conduct in this case, noting: "we find it morally inappropriate and ill-advised at best." However, the Panel found that sleeping with the spouse of a client did not constitute a per se violation of the Rules of Professional Conduct, and that in viewing the totality of this case, it did not believe Respondent's conduct rose to the level of a Rule 1.7 violation. We disagree.
The circumstances and facts of this case come dangerously close to an outright conflict of interest under Rule 1.7(a)(1). ODC maintains the Panel erred because it found Respondent's conduct to be morally inappropriate and ill-advised, yet still found the conduct did not rise to the level of a Rule 1.7 violation. We feel Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship.
The practice of law is a laudable profession that should be held to the highest of standards; practicing law is a privilege. Respondent admits to a serious lapse in judgment in these circumstances, and rightly so. Sexual involvement with the spouse of a current client, while not expressly proscribed by the language of our Rules of Professional Conduct, unquestionably has the propensity to compromise the most sacred of professional relationships: that between an attorney and his or her client. Attorneys who engage in a sexual relationship with their client’s spouse do so at their professional peril. Consequently, this Court alerts the bar, in addition to admonishing Respondent, that a sexual relationship with the spouse of a current client is a per se violation of Rule 1.7, as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney.
The court found that the hearing panel erred in rejected the conflicts charge and issued the opinion to provide guidance to those who would venture into this "treacherous area for attorneys." (Mike Frisch)
Which Is It?
The Georgia Supreme Court vacated an earlier opinion and rejected a notice of discipline due to the inconsistency of the proposed discipline:
The Notice of Discipline states that the Investigative Panel of the State Disciplinary Board directed the Office of the General Counsel, State Bar of Georgia “to issue a Notice of Discipline for a Public Reprimand” and thereafter states that the Investigative Panel “has determined that the appropriate disciplinary sanction to be imposed upon [the attorney] is a Public Reprimand,” but the Notice thereafter sets forth the “reasons [the Investigative Panel] recommends that [the attorney] be disbarred” and concludes with a prayer to this Court that we enter an order disbarring [the attorney].