September 24, 2010
Cancer Scam Alleged
The Illinois Administrator has filed a complaint alleging that an attorney falsely claimed to be suffering from cancer in order to induce a client to purchase a residence for her benefit:
In or prior to 2006, L...allowed Respondent to reside in a home [she] owned, at 1530 Tower Road in Winnetka (the "Winnetka house") under the terms that Respondent would pay rent and other expenses normally paid by tenants and L. would pay the expenses normally paid by landlords. At the time Respondent resided at the Winnetka house, L. had moved out of state and was residing in La Jolla, California.
In or about 2006, Respondent told L. that she was suffering from cancer and needed a place to live near her cancer treatment center in Evanston.
Respondent's statements to L. that she was suffering from cancer were false, and Respondent knew they were false because she never had cancer. Respondent's statements to L. that she was suffering from cancer were made for the purpose of inducing L. to purchase a house in Evanston to be used for Respondent's benefit.
In or about 2006, in reliance upon Respondent's statements as set forth...above, L.decided to sell the Winnetka house and use some of the proceeds from the sale to purchase a smaller house in Evanston where she would allow Respondent to reside as a tenant under the terms similar to that for the Winnetka house.
Respondent acted as L.'s attorney for the sale of the Winnetka house and the purchase of the Evanston house.
By reason of the trust and confidence that L. placed in Respondent pursuant to the attorney-client relationship, Respondent stood in a position of a fiduciary to L. As such, Respondent owed L. the fiduciary duties attendant to the attorney-client relationship, including the duty to perform the requested services with the highest degree of honesty, fidelity, and good faith, a duty of undivided loyalty, a duty to avoid placing herself in a position where her interests would conflict with the interests of her client, and a duty of care, including but not limited to a duty to ascertain if the actions she was taking on behalf of L. accurately reflected Lenore's desires and protected L.'s legal interests.
It is alleged that the Evanston house was to be titled solely in L.s name. The attorney had a warranty deed issued in her name and executed a fraudulent $150,000 mortgage, stealing the proceeds.
The client was forced to sue the attorney to clear title to the property.
It is further alleged that the attorney failed to cooperate in the bar investigation. (Mike Frisch)
September 23, 2010
Black Letter Law
The Oklahoma Supreme Court has imposed a public reprimand and costs in a case involving the failure to properly supervise a non-lawyer employee. The court opinion provides a useful discusion of the rule and the basis for its conclusions concerning the violation:
A lawyer is duty-bound to supervise the work done by lay personnel and stands ultimately responsible for work done by the entire nonlawyer staff. The work of unlicensed personnel for a lawyer is done by them as agents of the lawyer who employs them. It is the lawyer who must exercise complete, though indirect, professional control over the actions of the employees. A lawyer has the ultimate responsibility to ensure that the internal processing system of his office is in compliance with his professional obligations. A licensed legal professional who fails properly to supervise unlicensed personnel is guilty of dereliction of duty. ORPC Rule 5.3. Violating the Rules of Professional Conduct through the acts performed by another is professional misconduct under ORPC Rule 8.4(a).
Respondent's utter failure to supervise any of Wingo's work activities not only enabled Wingo to misrepresent respondent's individual involvement in the case but also to engage in the unauthorized practice of law by performing legal services in the form of legal research, the alleged preparation of a motion for postconviction relief and of a petition for writ of certiorari to the United States Supreme Court without proper supervision by a licensed lawyer. Respondent's dereliction violated ORPC Rule 5.5(b), which provides that "a lawyer shall not . . . assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."
The vicarious responsibility of a lawyer subjects that professional both to private-law (civil) liability as well as to the Bar's disciplinary process of public law. Today's opinion deals exclusively with the respondent's breach of his public-law duty as a member of the Bar. A disciplinary dereliction that comes under the rubric of a lawyer's breach of vicarious professional responsibility may not be treated as less serious than one of the same nature which was brought to enforce a practitioner's personal disciplinary responsibility by his own act or omission. Both breaches must be dealt with as being of equal seriousness. The discipline to be imposed for these derelictions should not vary one iota if the facts are identical. We must hence look at the respondent's breach in the same light as we would if this case were here to enforce his own disciplinary offense rather than his vicarious responsibility for breach by a third party acting as respondent's agent. In short, although the respondent was not the actor, the act in suit is imputed in law to his own doing. The gravity of the breach is equal to that which would apply if committed individually by the respondent's own act or omission.
Simply and concisely stated, a lawyer's vicarious public-law liability, in the context of a disciplinary bar proceeding, means that all licensed lawyers are fully and absolutely accountable for all breaches of professional ethics committed not only by fellow lawyers in the law firm, but also by those persons who are unlicensed or lay employees of a lawyer or of an association of lawyers in a single firm, regardless of the firm's name or of its precise legal entity.
The record shows that respondent fell woefully short of his obligation to supervise a nonlawyer employee in the operation of a business that provided legal support and research services under respondent's name and to make reasonable efforts to ensure that Wingo's conduct was compatible with the respondent's professional obligations as a licensed practitioner. By his utter dereliction of duty respondent made the offense possible. He gave the offender a home from which to harm innocent people. While respondent may be an entirely innocent victim of a designing employee, that does not reduce his culpability in law one iota. He is vicariously liable in disciplinary responsibility for all the misdeeds of his unlicensed employee which went unnoticed until the victim complained.
There are not a lot of cases that discuss the supevisory obligations of attorneys. This one may serve as a teaching tool. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has suspended the license of [a] Warren attorney...for two years, with the second year of that term stayed on conditions, for professional misconduct in his handling of legal matters entrusted to him by two sets of clients and for failing to promptly cooperate with disciplinary authorities investigating the grievances filed against him.
In a 6-1 per curiam opinion announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [he] obtained and then defaulted on a $13,000 personal loan from an elderly client of his law practice, and drew up a trust agreement for the same client that named [the attorney's] five children as beneficiaries of the trust in violation of disciplinary rules that bar an attorney from accepting employment or entering into a business transaction with a client in which the lawyer’s and client’s interests may conflict.
The Court also found that in a separate case [the attorney] collected legal fees from two clients for whom he had prepared a guardianship application without first obtaining the approval of the local probate court. [He] was subsequently found by the probate court to have engaged in concealment of assets in the case, and ordered to refund $1,200 of the legal fees he had improperly collected from those clients.
The majority decision was joined by Chief Justice Eric Brown and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Maureen O’Connor dissented, stating that she would impose a two year suspension with no portion stayed.
The court's opinion is linked here. (Mike Frisch)
September 22, 2010
Admission Granted Without Examination
The Oklahoma Supreme Court has granted admission to an attorney who was issued a special temporary permit to practice with the state Department of Agriculture in 1997 and was admitted in Arkansas in 1992.
A dissent would require the applicant to take and pass the bar exam:
[The applicant's] Special Temporary Permit was granted to her on November 12, 1997, for the purpose of obtaining employment with the Oklahoma Department of Agriculture. See Rule 2, Section 5, Admission Rules. We assume that she has remained in the same employment under the same permit since that time. At the time Ms. [she] applied for her special temporary permit, she was a licensed attorney in good standing in the state of Arkansas. She was admitted to the Arkansas Bar in 1992.
In her current application for membership in the Oklahoma Bar Association pursuant to Rule 2, [she] has provided evidence of her good standing as a member of the Arkansas State Bar. However, she has failed to provide evidence that she has been "engaged in the actual and continuous practice of law for at least five of the seven years immediately preceding application for admission under this Rule" in a reciprocal state which is a requirement for admission upon motion. See Rule 2, Section 1. Her experience in Oklahoma will not fulfill this requirement. See Rule 2 of the Admission Rules, Section 4.
On July 2, 2009, this Court amended Article II, Section 5 of the Rules Creating and Controlling the Oklahoma Bar Association. Section 5(E) was added and provides for an annual renewal of special temporary permits issued under Rule 2, Sections 5 and 6 of the Admission Rules. See section 5(E)(1).4 Section 5(E)(2) provides that special temporary permits granted prior to the promulgation of this rule shall be deemed to have a renewal date of January 2, 2010. This Court has been advised by the Board of Bar Examiners that [she] has had a special temporary permit with the Oklahoma Bar since 1997, but it is unclear whether it was renewed. Unless a renewal fee was paid within the time limits of Section 5(E)(1), the permit should have been cancelled.
For decades, our rules have clearly stated that the only means available to attain full membership in the Oklahoma Bar Association is taking the bar examination. The only exception is the reciprocity provision under Rule 2. She should be required to register for the February, 2011 bar examination, pursuant to Rule 4 [Admission by examination]. The reciprocity provisions of Rule 2, Section 1, are not available to her. Otherwise, she will have become an active member of the Bar by using her special temporary permit to obtain legal experience in Oklahoma to avoid the requirement which we expect from all Oklahoma lawyers, i.e., taking the bar examination. The special temporary permit is not transformed into a license to practice law in Oklahoma merely because the permit holder has practiced many years in this state. This was not the intended purpose of Rule 2.
The materials presented to us also indicates this petitioner was issued a Bar card with an OBA number in 1997 which contravenes the rules in effect then and which continue in effect to this day. See Art. II, Section 5(E)(2), Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. Supp. 2009, Ch. 1, App. 1. I would therefore require the petitioner to surrender her Bar card and order her name stricken from the roll of attorneys until she has successfully passed the Oklahoma Bar Examination and the MPRE. I therefore respectfully dissent. (footnotes omitted)
An attorney who purchased 14,000 shares of stock in a firm client after learning confidential information from his law partner is the subject of a one-year suspension recommendation by the Illinois Review Board. The attorney also had falsely denied that he misused confidential information in making the purchases. He had used information learned from a partner's e-mail to purchase stock and realized a profit of almost $135,000.
The review board concluded that he had violated his duties of confidentiality and honesty and (over a dissent) engaged in criminal conduct that adversely reflected on his fitness to practice. The attorney had not been convicted of any criminal offense. He had been subject to a civil enforcement action and repaid double the amount of the stock sale profit as a penalty.
A hearing board had recommended a two-year suspension. The review board concluded that the sanction was unduly harsh:
The Hearing Board...declined to consider [the attorney's] family problems in mitigation. The Hearing Board discounted this evidence, reasoning that there was no real correlation between [his] misconduct and his family problems. In our opinion, the Hearing Board took too strict a view in assessing this evidence.
[The attorney] testified that he committed the acts in question because he was acting irrationally, in response to depression and problems that he was having with a teenaged daughter. [He] and his ex-wife testified in detail about serious problems affecting one of their daughters, beginning in July 2004 and continuing through at least May 2006, the time of [his] misconduct. Each testified that their daughter’s problems with drugs and problems brought about by persons with whom she was associating caused very significant emotional stress for the family. The family ultimately placed the young woman in remote residential treatment facilities, at significant expense.
[The attorney] sought and received treatment for depression between August 2005 and April 2006 and in October and November 2006. In addition, [his] father died, in December 2005, and [he] assumed responsibility for his late father’s affairs, out-of-state, which added additional stress. [He] testified that, as a result of these factors, he was not using his best judgment at the time of his misconduct. He testified that his "life was going down the tubes." The facts which [he] and his ex-wife described support that statement.
[His] very difficult family circumstances do not excuse his misconduct. They do, however, provide a framework from which to reasonably assess this respondent’s actions. These circumstances were ongoing at the time of [his] misconduct. A temporal connection between a respondent’s misconduct, ill mental health, and family problems is properly considered in mitigation. (citation omitted)
While we do weigh the mitigating factors differently than did the Hearing Board, they are not sufficient in this case to justify a lesser suspension than one year, given the facts of this case as a whole.
The majority questions the appropriateness of bringing the criminal conduct charge absent a conviction, notwithstanding governing case law that makes clear that conviction is not a necessary predicate to the violation. (Mike Frisch)
September 21, 2010
Complaint Alleges Judicial Candidate Misrepresented Bar Record
The Illinois Administrator has filed a complaint against an Assistant State's Attorney for Cook County alleging ethical violations in three closing arguments. The attorney also is charged with making a false statement as a candidate for judicial office. The complaint alleges:
In 2008, Respondent became a judicial candidate. She was running to be a Circuit Court of Cook County judge in a contested race in the November 4, 2008, Cook County general election to fill a vacancy in the 12th Subcircuit. As a candidate for judicial office, Respondent was required to refrain from conduct which, had she been a judge, would have been a breach of the Code of Judicial Conduct. Canon 2 of the Code of Judicial Conduct requires a judge to respect and comply with the law and to conduct herself at all times in a manner that promotes public confidence in the integrity of the judiciary.
On October 3, 2008, the Chicago Council of Lawyers ("Council") released a report evaluating the judicial candidates in the November 4, 2008, Cook County general election.
In its report, the Council found Respondent "Not Qualified" for the Circuit Court of Cook County, citing to numerous Appellate Court decisions that had been critical of Respondent’s conduct as a prosecutor as the basis for its conclusion that Respondent was not qualified to be a judge.
Following the Council’s report, internet blogger and attorney Jack Leyhane ("Leyhane") posted a link to the report on his blog, which was entitled, "For What It’s Worth," and which was located at www.leyhane.blogspot.com.
On October 24, 2008, Respondent sent an e-mail to Leyhane in which she stated that the Council report as it applied to her had been "dishonest" and "misleading" to the voting public. She went on to state the following:
The simple fact is that had they or anyone else asked or researched the truth about these accusations at all, they could find that I had a full and complete hearing in the ARDC, the board that regulates conduct and was completely cleared.
I have never flouted any court ruling or admonishment. This fact was recognized by no less august a tribunal than the ARDC…
At the end of her e-mail to Leyhane, Respondent stated that she hoped Leyhane would print her e-mail in his blog. She further stated that he was free to use her comments on his blog with her name attached.
On November 2, 2008, Leyhane posted Respondent’s e-mail, including the comments listed...above, in their entirety on his blog.
The statements made by Respondent...were false and Respondent knew they were false at the time she made them, because there is no method by which one can "research" whether confidential investigations have taken place at the ARDC, at no time had Respondent’s conduct been the subject of proceedings before the Hearing Board, let alone the "full and complete hearing" she claimed, nor had the Inquiry Board "recognized" that Respondent "never flouted any court ruling or admonishment," and at no time was she "cleared" of conduct by the ARDC.
The complaint alleges that the statements were false because the attorney had been admonished in 2006 for closing argument misconduct in three matters. (Mike Frisch)
Cut And Paste Leads To Conviction, Suspension
An attorney convicted of a criminal offense was suspended for three months by the New YorkAppellate Division for the First Judicial Department. The court set out the facts:
On March 21, 2007, respondent was stopped by the Nassau County police, who impounded his car due to various outstanding motor vehicle infractions. Upon inspection the police found that the vehicle bore a registration sticker which had been forged to reflect an incorrect expiration date.
Respondent admitted to cutting out numbers from the registration sticker of his wife's car and affixing them to his own vehicle's registration sticker. Respondent also altered his car's registration sticker so as to make it reflect an inaccurate expiration date. Respondent knew his actions were illegal.
When stopped by the police, respondent was aware that his car had been uninsured for a year and a half and was not currently registered or inspected. He had been driving the car with a forged registration sticker since February 2004, knew that he was driving with a suspended license, had failed to answer a traffic summons and had outstanding motor vehicle infractions and violations.
Respondent testified that he no longer drives and instead commutes to his office by public transportation. He acknowledged that his conduct was wrong and proffered his wife's illness, marital turmoil and financial difficulties as the reasons forsuch conduct. In aggravation, the Hearing Panel considered respondent's failure to report his criminal conviction to the Committee as required by 22 NYCRR 603.12(f). The Hearing Panel also considered respondent's failure to provide it with proof of the satisfaction of a $20,610 New York State tax judgment as well as documentation of payments towards other outstanding liens and judgments entered against respondent. These outstanding liens and judgments include a $47,687 federal tax lien and judgments in the amounts of $4,834 and $20,146. The Hearing Panel also considered respondent's failure to notify his law firm employer of his conviction as evidence that he has not accepted responsibility for his misconduct. On the other hand, the Hearing Panel considered respondent's expression of remorse, the fact that his misconduct did not affect his law practice or cause harm to the public and the absence of a prior disciplinary record as mitigating factors.
Not a legal profession case, but of possible interest is a decision of the Vermont Supreme Court overturning a conviction for attempted voyeurism. The case involved upstairs and downstairs neighbors:
Complainant resides on the second floor of an apartment building located in a secluded area in Colchester, Vermont. There is a window in her bathroom shower that overlooks a parking lot used by residents of the building. The bottom of the window is at the level of complainant’s mid-chest. When complainant moved in, her landlord suggested that she cover the window with a shower curtain to protect the window from water damage. Complainant, however, did not do so. She did not think anyone could see her through the window.
Defendant is complainant’s neighbor who resides on the first floor. He can hear complainant’s shower turn on and off from his apartment. On September 1, 2008, complainant saw defendant for a few moments while he stood in the parking lot looking at her bathroom window as she was showering. On September 15, 2008, complainant again saw defendant standing in the parking lot looking at her bathroom window while she was in the shower. This time, defendant stared at her window for three minutes with a hand on his crotch. Complainant left the shower, went into her bedroom and took a picture of defendant—still looking up with a hand on his crotch—with her cell phone.
Later that day, complainant asked her roommate—who is the same height as complainant—to stand in her shower. Meanwhile, complainant went to the parking lot and looked up at her bathroom window to determine whether anyone could see her from the ground. The parties disagree on what complainant saw when she looked up at her window and whether defendant could see any part of complainant’s body that is protected by the voyeurism statute.
The defendant was not charged with attempted voyeurism, but the verdict camr after a jury note. As a concurring opinion explains:
As the majority notes, defendant was only ever charged with voyeurism. The charge of attempted voyeurism, upon which he was ultimately convicted, came about only after the jury had begun deliberating on the charge of voyeurism and appeared to conclude that defendant was not guilty of the charged crime, sending the judge a note asking, “If we think he is guilty of trying; but was not able to see her nipples. What kind of verdict do we give? We have not proven that he saw anything.” In his initial instructions to the jury, the judge had told them repeatedly that “if the state has not met its burden [of proving each and every element of an offense], then you must return a verdict of not guilty for the offense.” Why the judge did not simply repeat that basic principle of criminal law in response to the jury’s question remains a mystery to me. Rather, the court responded by providing the jury with an alternative theory of the case and instructed the jury on the crime of attempt. Neither the prosecution nor the defense had suggested this additional charge; defense counsel, in fact, strongly objected to it, arguing that such a change would be highly prejudicial and highlighting that she had not prepared for the new charge and would have changed her closing argument had she known such an instruction would be given.
Asking Client To Buy Cocaine Leads To Disbarment
The North Dakota Supreme Court imposed sanctions against an attorney who engaged in misconduct in three matters. In two of the matters, the court imposed a one-year suspension; in the other, disbarment.
One of the suspension cases:
...the Hearing Panel found that [the attorney] had billed one client for 9 hours and another for 16.39 hours at a rate of $150 per hour. The Hearing Panel found that the billed work was of no value, and when [he] was confronted by the other attorney in the firm, [he] refunded the money he had improperly billed to these clients. The Hearing Panel further found that [the attorney] had billed work that was of no value for two clients represented by the other attorney, who had been appointed by the U.S. District Court for the District of North Dakota. When confronted regarding bills paid by the Administrative Office of U.S. Courts, which included $5,400.40 for the work [the attorney] had billed, [he] indicated he would credit the payment for the entries on a final bill to the government. The Hearing Panel found that while [he]said he would credit the payment for the entries on a final bill to the government he has not done so; however [he] continued to work on the two files after the other attorney left the firm and there is a net balance owed to the firm.
And the disbarment:
... the Hearing Panel found that [the attorney] had asked his client to find cocaine for him, gave her $200 for the cocaine, and was subsequently arrested and charged. The record reflects that on January 20, 2010, [he] entered a guilty plea to Attempted Possession of Controlled Substance (Cocaine), which is a class A misdemeanor. Wolff was placed on supervised probation for two years, with conditions, and was ordered to pay fines and fees.
User Friendly Bar
From the web page of the Pennsylvania Disciplinary Review Board:
The most used page at the Disciplinary Board’s Web site, www.padb.us, has always been the Attorney Search page. In the past, the page allowed users to search only for a single field, such as the attorney’s last name. This was a problem if the attorney you were searching for was named John Smith. You would have to work your way through 684 listings, 15 at a time, to arrive at the correct name.
This month, the Disciplinary Board rolled out a new version of the search which allows users to filter the database by any two fields, including first name, last name, county, city, or attorney ID number. Now, a search for “John Smith” can be narrowed down to a manageable list of 18 names. If you think there is an attorney named “Leonard” somewhere in Cumberland County, you now have a fighting chance of finding him. Users should also be aware that the search will yield all names that contain the search term. Thus a search for "Smith" will also display "Smithson" and "Goldsmith."
We hope this new enhancement will be more useful and efficient for those who rely on our site.
One of my (many) beefs with the D.C. Bar's web page is that you have to have the exact spelling of the attorney's name to get disciplinary information. At least the D.C. bar has a new and public-friendly feature-- you can now find the scheduled dates for proceedings before hearing committees and the BPR. Bravo for this improvement in access to information. (Mike Frisch)
Get It In Writing
The Indiana Supreme Court has issued a public reprimand to an attorney for failing to adequately communicate the basis for his fee.
The attorney is experienced in EEOC matters. His practice is to charge an "engagement" fee of $750 while the EEOC is considering a claim. He charges an additional fee to bring a federal action, which is determined after the EEOC acts. In the case, the attorney left the full amount of the engagement fee blank at the outset and charged a total engagement fee of $5,000, but did not reduce the amount to writing. There was also a contingent fee that was written into the original retainer agreement.
The court concluded that the fee was reasonable and that the attorney had obtained a good result for the client. His effort to keep fees low for those who did not go to court "is certainly not to be discouraged." However, the retainer failed to disclose adequately the method by which the contingent fee would be calculated and thus violated the rule. The court did not find a violation of the business transaction with client rule.
Two justices dissented, "believing that the Commission did not prove a charged violation by clear and convincing evidence and thus that the Hearing Officer correctly found no violation..." (Mike Frisch)
Fee Not Simple
The Maryland Court of Appeals has imposed a public reprimand of an attorney for misconduct in connection with his representation of a Turkish national whose brother had died in the United States. The siblings were not close and the attorney (who had dual U.S.-Turkish citizenship) had done considerable work to establish that the client was the sole heir. The deceased had three pieces of real property in Virginia (where the attorney was not admitted) that passed automatically to the client.
The client had limited funds and agreed to pay the attorney 15% of the proceeds of the sale of the real property as his fee. The client complained about a 6% broker's fee that was added on to the attorney's fees. Bar Counsel filed charges that included allegations that the fees were excessive.
The court agreed with the circuit court that Bar Counsel had not established that the fee was excessive in violation of Rule 1.5. The fee was fair at the time that the parties entered into the agreement. The attorney did not pressure the client to later alter the terms to his advantage.
The court found that the attorney had failed to communicate with the client and failed to return the client's file when the representation terminated.
Two judges concurred in the result, but raised concern that the fees charged were far in excess of fees for comparable work in Maryland. (Mike Frisch)
September 20, 2010
The Barter SystemThe web page of the Tennessee Board of Professional Responsibility reports the temporary suspension of an attorney's license based on his guilty plea to drug offenses and attempted theft of property worth more than $1,000. The Tennessee Supreme Court concluded that the attorney posed a substantial threat of harm to the public "by offering to provide legal services in exchange for stolen property." (Mike Frisch)
More Than An Oversight
An applicant for admission to the New York Bar failed to disclose that she had been disbarred in New Jersey. The Appellate Division for the Second Judicial Department denied the motion to amend the application and revoked her license to practice law:
As the Special Referee properly found, the respondent's omissions constituted a deliberate attempt to conceal from the Committee on Character and Fitness information which was clearly relevant, and which would have likely resulted in the denial of her application for admission to the Bar of the State of New York. Accordingly, the respondent's request for leave to amend her bar application is denied, and her admission to the Bar of the State of New York is hereby revoked and her name is stricken from the roll of attorneys and counselors-at-law.
"A Person I Would Like To Get To Know Better"
The New York Appellate Division for the Second Judicial Department imposed a three year suspension of a former Department of Motor Vehicles administrative law judge who engaged in misconduct in a case assigned to him that involved a police officer. The court found the following facts:
On March 31, 2004, at the DMV offices, the respondent had an ex parte conversation with[the police officer] outside the hearing room prior to the start of the hearing. He then conducted the DMV hearing at which [the police officer], the operator of the other vehicle involved in the accident, and a New York State police officer testified. At the hearing, the respondent had before him a notarized letter dated July 10, 2003, from [the police officer] to the DMV in which she denied knowledge of the accident and asserted that her car was inoperable and parked at her residence on the date of the accident. She also provided written documentation to the respondent that the vehicle was in storage at a repair shop on the date of the accident.
After the hearing and before a written decision was provided to [the p[olice officer], the respondent began placing telephone calls to her and either spoke with her personally or left voice-mail messages. The respondent acknowledged placing the calls, noting that [she] was "a person I would like to get to know better." During those calls, the respondent discussed the content of his decision with [her]. In a telephone conversation of April 20, 2004, the respondent discussed his decision with [her] and acknowledged having had previous discussions with her regarding the decision being on his desk. He acknowledged his attraction to her and indicated that he did not want to pressure her to feel that she owed him anything or might have to do something with him. During that conversation, the respondent made the following remark: "Frankly, I wasn't even sure that you were not guilty . . . but that's neither here nor there." In that same conversation, the respondent admitted having previously told [her] that he was not supposed to have contacted her. He then confirmed plans to meet her for dinner the following evening.
In a decision signed by the respondent on April 7, 2004, he found in favor of [the police officer] and directed the DMV to remove the record of the accident from her driving record.
In an interview by investigators from the New York State Office of the Inspector General on July 22, 2004, the respondent falsely stated that he had had no contact with [the police officer] outside the hearing.
As to sanction:
As set forth in the Inspector General's report, an exhibit in the disciplinary proceeding, the respondent not only acted improperly in pursuing a personal relationship with the subject of an administrative hearing over which he presided, but also engaged in a selective view of the evidence presented at the hearing, ignored prior warnings about ex parte communications from the DMV, and made false denials about his conduct to the Inspector General's office. The respondent's conduct clearly served to lessen public trust and confidence in the system and justly led to the termination of his employment with the DMV. Under the totality of circumstances, the respondent is suspended from the practice of law for a period of three years.
A Louisiana hearing committee has recommended a two-year suspension, with 21 months stayed in favor of a two-year period of probation, in a matter involving two client complaints. In one matter, the attorney claimed as mitigation that the client had been made whole as a result of a malpractice suit against him. The committee disagreed:
It is somewhat a hollow victory to allege now that the client has been made whole as a mitigating factor. This committee finds, therefore, that the settlement of [the malpractice claim] is neither an aggreavating nor a mitigating factor.
The attorney was a member of the State Senate and held a number of responsible posts in the legislature. His public duties took a great deal of his time and energy away from his practice and obligated him to rely upon staff. (Mike Frisch)
September 19, 2010
Rotunda to Speak at Akron Law as Miller-Becker Lecturer on 10/29/10
The second Miller-Becker Center for Professional Responsibility Distinguished Lecture in Professional Responsibility is scheduled for Friday, Oct. 29, 2010, at 4:00 P.M. at the University of Akron School of Law. Ronald D. Rotunda, the Day & Dee Henley Chair and Distinguished Professor of Jurisprudence, of Chapman University School of Law, is the Distinguished Lecturer and his presentation is entitled Lawyers: Why We Are Different and Why We Are the Same. Rotunda's presentation, in part, asks: “To what extent do the ethics rules make lawyers different from other professionals?" He is shown right.
This is right on the heels of a great new contribution to the field by the center: its first symposium law review issue on the legal profession, this one on the topic of Lawyers without Borders and Practicing Law in the Electronic Age, 43 Akron L. Rev. 1-1105 (2010), and featuring articles and essays by excellent scholars in those areas. I really appreciate that they mailed one to me and lots of other teachers of legal ethics, and I have it sitting on my desk. Well done.