Friday, October 1, 2010

May I Have The Envelope, Please?

The Florida Judicial Ethics Advisory Committee has opined on the following issue:

May a Judge participate in a program or skit for an American Inn of Court if the presenting group competes for a "best skit" award which includes a monetary contribution to a charity of the group's choice?



The inquiring judge is President of an American Inn of Court.  The American Inns of Court was established in 1985 to promote the goals of legal excellence, civility, professionalism and ethics in the legal profession. 

Each month a program is put on by a group composed of lawyers and judges.  As an incentive for quality programs, the inquiring judge has suggested that an award be presented for the best skit and that a $500.00 contribution be made to the winning group's charity of choice.  The contribution would not be made in the name of any particular judge or lawyer, but would be made in the name of the local Inn.  All voting would be anonymous and no reference would be made to any judge who was a member of the winning group.  One of the participating judges has expressed concern about the propriety of accepting such an award.

Not to worry:

This Committee can find no Canon of the Code of Judicial Conduct, or any commentary contained therein, that would preclude this activity.

Canon 4B encourages judges to participate in quasi-judicial activities concerning the law and the legal system.  The contemplated activity involves conduct that concerns the law and the legal system.  Canon 4(A) provides that such conduct must not cast reasonable doubt on the judge's capacity to act impartially, undermine the judge's independence, integrity, or impartiality, demean the judicial office, interfere with the proper performance of judicial duties, lead to frequent disqualification, or appear to a reasonable person to be coercive.  The facts of this inquiry do not suggest any of the prohibitions set forth in Canon 4(A).  To the contrary, the judge's participation in the program is a type of quasi-judicial activity which is encouraged by Canon 4B.

This inquiry does not involve a participating judge's role in fund- raising.  The participating judge is not actively involved in a fundraising activity and is not utilizing the prestige of the judge's office to promote fundraising. The judge is merely designating a recipient of funds already in the coffers of the organization.

Finally, the inquiring judge, as an officer of an organization devoted to the improvement of the law and the legal system, may assist in the management and investment of the organization's funds.  However, the judge may not personally or directly participate in the solicitation of funds.

(Mike Frisch)

October 1, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Doing The Right Thing

If you want to get a sense of what is wrong with the attorney discipline regime in the District of Columbia (and do not wish to read my article on that subject in the Georgetown Journal of Legal Ethics), check out a decision issued yesterday by a unanimous three judge division of the D. C. Court of Appeals.

The court had earlier remanded the case for a sanction recommendation in light of a decision that had imposed disbarment for lying to disciplinary authorities. After remand, the board recommended disbarment. The court agreed that disbarment was warranted.

The court rejected the position of its Board on Professional Responsibility that a board order was a necessary precondition to a finding that an attorney has engaged in conduct prejudicial to the administration of justice for failure to cooperate with a Bar Counsel investigation. The court affirmed findings of serious dishonesty to clients in two immigration matters and to the discipline system. The court also squarely rejected the attorney's due process claims.

The court cited cases from the dawn of time (1982 and 1988) for the proposition that failure to respond to a bar counsel  inquiry violated the rule.

The board had relied on a 1989 rule amendment that gave Bar Counsel the option to seek a board order compelling the response of a non-cooperating attorney. At the time, the board submitted comments to the effect that such a rule amendment was unnecessary as Bar Counsel had always had the authority to bring such a charge. Inexplicably, the board's view changed over time, and the "may seek an order" language of the 1989 rule morphed into a "must seek an order" precondition. The board's present position foundered on the shoals of the its own views at the time of the amendment, the well-established case law and the plain language of the rule.

Why did the board take this position? Why did a rule amendment that was deemed superfluous in 1989 evolve into an absolute requirement? In my view, the answer is that the assertion of its authority has a higher value than the swift investigation and prosecution of unethical attorneys. This seems to work quite well for accused members of the D.C. Bar.

Kudos to the court for cutting through to the heart of the issue and crafting an opinion that favors the public interest over the parochial concerns of the profession. The court wisely rejected the board's claim of authority without any critical language of the board's motives (which is left to us bloggers). (Mike Frisch)

October 1, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, September 30, 2010

Rule 4.2 Applies To Pro Se Attorney

The North Dakota Supreme Court has held that Rule 4.2, which forbids unauthorized communication with a represented party, applies to an attorney who is pro se in the matter:

[The attorney] argues he did not violate Rule 4.2 because the rule does not apply when an attorney is representing himself. His view is too narrow. The rule protects "a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the lawyer-client relationship, and the uncounseled disclosure of information relating to the representation." N.D.R. Prof. Conduct 4.2 cmt. 1. Most courts have held Rule 4.2 applies to attorneys representing themselves because it is consistent with the purpose of the rule. See In re Schaefer, 25 P.3d 191, 199 (Nev. 2001) ("The lawyer still has an advantage over the average layperson, and the integrity of the relationship between the represented person and counsel is not entitled to less protection merely because the lawyer is appearing pro se."); In re Segall, 509 N.E.2d 988, 990 (Ill. 1987) ("A party, having employed counsel to act as an intermediary between himself and opposing counsel, does not lose the protection of the rule merely because opposing counsel is also a party to the litigation."). In addition, we have recognized Rule 4.2 "is to prevent lawyers from taking advantage of laypersons." Disciplinary Bd. v. Hoffman, 2003 ND 161, ¶ 17, 670 N.W.2d 500.

[The attorney] relies on a Connecticut Supreme Court decision to argue Rule 4.2 does not apply when he is representing himself because he is not representing a client. In Pinsky v. Statewide Grievance Committee, the court held an attorney representing himself had a right to communicate with a represented party because he was not representing a client. 578 A.2d 1075, 1079 (Conn. 1990). Most courts have rejected Pinsky, reasoning "the policies underlying [Rule 4.2] are better served by extending the restriction to lawyers acting pro se." In re Haley, 126 P.3d 1262, 1267 (Wash. 2006) (discussing prior authority); see also Runsvold v. Idaho State Bar, 925 P.2d 1118, 1120 (Idaho 1996) ("We thus construe the phrase of Rule 4.2, 'in representing a client' to include the situation in which an attorney is acting pro se because this interpretation better effectuates the purpose of Rule 4.2."). We join the majority of courts in rejecting the rationale of the court in Pinsky.

We conclude that the reasoning of courts in In re Haley and Runsvold is more persuasive than Pinsky and that the majority position is more in line with our precedent and with our prior application of Rule 4.2 in the prior [] case [involving the same attorney]. We therefore adopt the hearing panel's conclusion that Rule 4.2 applies to attorneys representing themselves.

The court imposed a 30 day suspension.

The Chief Justice would impose a reprimand:

Although [the attorney] had been reprimanded previously for similar action, [he] petitioned this Court to review the hearing panel's decision. We denied the petition and did so by order and without explanation. This Court does not grant leave to appeal an informal decision "unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably." N.D.R. Lawyer Discipl. 3.1(D)(8). Nevertheless, it is only now, in the majority opinion, that "We join the majority of courts in rejecting the rationale of the court in Pinsky" and "We conclude that the reasoning of courts in In re Haley and Runsvold is more persuasive than Pinsky and that the majority position is more in line with our precedent and with our prior application of Rule 4.2 in the prior Lucas case."

Perhaps [the attorney] should have been able to glean the fact we disagreed with his interpretation of Rule 4.2 from our order denying his petition to appeal the public reprimand. However, that public reprimand concerned Rules of Professional Conduct in addition to Rule 4.2. I believe that [his] failure to grasp the significance of the order denying his petition to appeal is why the hearing panel in this instance found [his] action was more negligent than intentional. For that reason, as well as the other reasons cited by the hearing panel, I would impose a public reprimand rather than suspension.

(Mike Frisch)

September 30, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Permanent Disbarment

The Ohio Supreme Court web page reports a decision yesterday:

[A] Toledo attorney has been permanently disbarred by the Supreme Court of Ohio for multiple violations of state attorney discipline rules arising from his involvement in a criminal conspiracy that induced approximately 3,000 real estate agents and appraisers to join two professional organizations with the false promise that their membership dues purchased errors-and-omissions insurance coverage that did not in fact exist.

In a 5-2 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that between 1997 and 2001 [the attorney] induced real estate professionals to purchase memberships in the American Real Estate Association (AREA) and the Noble Group by falsely representing that as a benefit of membership they would receive errors-and-omissions insurance coverage from Midwest Insurance Company. During the investigation of his misconduct, [the attorney] admitted that Midwest, an offshore entity formed by one of his co-conspirators, was never licensed to provide insurance in the United States, and the promised errors-and-omissions policies never existed.

In imposing the ultimate sanction of permanent disbarment, the Court noted that while [he] voluntarily ended his involvement in the scheme in 2001, he did nothing to stop or alert law enforcement officials to the ongoing fraud, which continued for several years until it was discovered by federal authorities. In 2006 [he] entered a guilty plea to a felony count of conspiracy to commit wire fraud and mail fraud. He was subsequently sentenced to one year and one day in federal prison and three years of supervised release and ordered to pay $3.7 million in restitution.  His law license has been on inactive status since January 2007.

The Court rejected objections raised by [the attorney] to the severity of his sanction, pointing to the long period of time he participated in the conspiracy, the large number of fraudulent transactions in which he was involved and the cumulative financial damage suffered by thousands of victims. 

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown entered a dissenting opinion, joined by Justice Paul E. Pfeifer, stating that he would impose the sanction originally requested by the Toledo Bar Association and recommended by the hearing panel that heard the charges against [the attorney], which was an indefinite suspension with no credit for the time his license was under interim suspension.

The court's decision is linked here. (Mike Frisch)

September 30, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Deeply Flawed" But All Is Forgiven

A rather remarkable reinstatement case decided today by the Wisconsin Supreme Court rejected an unfavorable recommendation and granted the return to practice of a former attorney. The court really could not point to much that favored reinstatement. The attorney had been a State Senator.

The findings below were entirely adverse--the petitioner had been suspended for four years and three months after a criminal conviction. He had denied that he had done anything wrong and was still under court supervision. He had been less than diligent on restitution. The referee had recomended against reinstatement. Nonetheless, the court found on de novo review:

We begin by acknowledging that some of Attorney...'s past conduct has been deeply flawed.  He has been professionally disciplined and criminally prosecuted for that bad conduct.  He has been less than forthcoming with information about his activities while under suspension.  He has steadfastly maintained that he did nothing wrong and that his criminal prosecution was politically motivated.  He appears to operate under the misapprehension that he is somehow entitled to reinstatement upon the expiration of his license suspension.  Indeed, Attorney...'s approach to this entire reinstatement proceeding has made it a more difficult and time-consuming inquiry than it might otherwise have been.

However, we focus on the specific question before us today: Whether Attorney... has demonstrated by clear, satisfactory, and convincing evidence that his license to practice law should be reinstated at this time.  After careful review of the entire record, we conclude the answer to this question is, "Yes."

This is so because the a disbarred attorney need not admit guilt to achieve reinstatement (the District of Columbia has taken a contrary view in the case of William Borders, convicted in the attempted bribery of Alcee Hastings) and a reinstatement is not a retrial of the criminal case. I agree, but so what?

The court's rationale in toto: a high-profile individual whose criminal and professional misconduct has been well publicized.  However, we must guard against a temptation to "re-try" the disciplinary case or revisit the criminal conduct for which Attorney...has been punished.  At the same time, Attorney... is not "entitled to reinstatement" simply because the period of suspension has lapsed. (citation omitted)

Upon careful consideration of the entire record, we conclude Attorney...has met his burden of proof with respect to the elements necessary to justify reinstatement.  We conclude Attorney...can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others as a lawyer.

That's a comfort.

This report on the court's decision comes from the Milwaukee Journal Sentinel.

(Mike Frisch)

September 30, 2010 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Quick follow up to availability of Jerold Auerbach's Rabbis and Lawyers

I posted a month ago on its availability in Kindle; now its new paperback is at Amazon here.  Auerbach argues that the legalization of U.S. Jewish thought over the past century, and especially lawyers taking the leadership positions, disserviced American Judaism.  It is a very good follow up to his landmark Unequal Justice. [Alan Childress]

September 30, 2010 in Books, Childress | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

At The Ballet

The New York Appellate Division for the First Judicial Department imposed a public censure on an attorney for a series of improper business transactions with his client. The facts:

The undisputed facts as found by the Referee and the Hearing Panel may be briefly summarized. In 1993, respondent formed the IAA [Independent Artists of America] on behalf of the dancers of the American Ballet Theatre, whom he had represented since 1979. He continued as counsel to the IAA based on a monthly retainer fee, which was $2,500 until 2005, when it was increased to $3,500. Respondent was given possession of the IAA's checkbook for its non-interest-bearing business checking account, on which he was a signatory.

In July 1997, respondent, who was facing personal financial difficulties, asked the IAA's vice president, Lori Wekselblatt, for permission to borrow funds from the union's checking account. Shortly thereafter, Ms. Wekselblatt informed respondent by telephone that he could borrow funds from the checking account. In these conversations, respondent did not specify the amount or terms of the anticipated loan, nor did he advise Ms. Wekselblatt or any IAA officer that his interest differed from that of the union, that he could not give the union advice concerning the loan due to the conflict of interest, or that they should consult with independent counsel concerning the transaction. Respondent also failed to prepare any writing to document the loan or its terms.

From July 1997 until April 2005, respondent drew 47 checks payable to himself on the IAA's business checking account, withdrawing a total of $368,570.61. Although the loan agreement was not reduced to writing, the loans were disclosed in the IAA's annual tax returns and Labor Department filings. Those documents stated that the respondent would repay the loans by foregoing his monthly retainer, which he last drew in September 1998.

In November 2006, after another attorney alerted him to the requirements of DR 5-104(A), respondent sent Ms. Wekselblatt a loan agreement and promissory note for her signature, which stated that he then owed the IAA $145,348.53, together with five percent annual compound interest on unpaid balances. Ms. Wekselblatt did not sign the documents, telling  respondent that she did not agree that he owed interest. As at the inception of the loans, respondent failed in proffering the after-the-fact loan documentation (which also included a payment schedule and a confession of judgment) to advise the IAA that a conflict of interest existed and that the union should consult independent counsel.

In May 2007 (about two years after the last loan was taken), the IAA formally discharged respondent as its counsel. At the request of the Hearing Panel in these proceedings, respondent executed a loan agreement and promissory note, dated May 11, 2009, committing himself to repay the principal amount of $67,500, with interest thereon of $47,277.53. Although the IAA has declined to sign this document, the Hearing Panel deemed it to constitute "an undertaking by [r]espondent to repay the amounts due according to the schedule provided and subject to the penalties offered.

The case  is linked here. (Mike Frisch)

September 28, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hillman & Rhodes on Digitizing Client Files

Posted by Jeff Lipshaw

Robert Hillman (UC Davis) and Allison Rhodes (Hinshaw & Culbertson LLP) have posted Client Files and Digital Law Practices: Rethinking Old Concepts in an Era of Lawyer Mobility, 43 Suffolk U. L. Rev. 897 (2010), on SSRN.  Here's the abstract:

The lawyer or law firm that controls client files has distinct advantages in any competition for clients. Not surprisingly, disputes over control and possession of client files have long occupied the attention of courts and ethics committees, which over the years have developed a significant body of case law and ethics opinions addressing myriad issues relating to client files. Existing guidance, however, largely is directed to a world of “hard copy” files where pieces of paper neatly assembled within file folders invite a property-based analysis whenever disagreements over possession or access arise.
This article discusses the effects of digitizing client files and firm information in light of lawyer mobility and evaluates the existing framework of law and ethics developed largely in a world of hard copies. The article also offers some practical suggestions for firms seeking to assert greater control over client information and firm intellectual property.

September 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Self Protection Exception

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio held today that Ohio recognizes a common law “self protection” exception to attorney-client privilege that permits an attorney to testify concerning attorney-client communications where such testimony is necessary to establish a claim for legal fees on behalf of the attorney or to allow an attorney to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and a client.

The Court held further that attorney work product including mental impressions, theories and legal conclusions are subject to discovery upon a showing of good cause if the information sought to be discovered is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere.

The Court’s 6-0 decision, authored by Justice Terrence O’Donnell, reversed a ruling by the 8th District Court of  Appeals.

From 2003 to 2007, the Cleveland-based law firm of Squire, Sanders & Dempsey (SSD) represented Givaudan Flavors Corporation in product liability litigation. In 2007, Givaudan severed its relationship with SSD and retained new outside counsel. SSD billed Givaudan for $1.8 million in unpaid legal fees. When Givaudan refused to pay, SSD filed suit. Givaudan filed a counterclaim alleging that SSD had overbilled for services it had performed, had billed Givaudan for services that were never performed, and had engaged in other false, deceptive and unethical business practices during the period of representation.

During the pretrial discovery process, Givaudan refused to produce any of the billing records or other documents relating to the legal services SSD had provided during its representation, or to answer most of the questions posed to company officials by SSD during depositions.  Givaudan also asserted that because communications between itself and the law firm during the period of representation were exempt from disclosure under the attorney-client privilege, SSD was barred from disclosing documents in its own files that included communications between the law firm and Givaudan.  SSD asked the trial court to order Givaudan to comply with its discovery requests and respond fully during depositions in the case. 

The trial court granted the motion to compel discovery, holding that a common law exception to the statutory attorney-client privilege set forth in R.C. 2317.02 allows disclosure of otherwise confidential communications when such disclosure is necessary to the fair adjudication of  a lawsuit between a lawyer or law firm and a client arising from their business relationship. Givaudan appealed that ruling.

On review, the 8th District Court of Appeals reversed the trial court’s order compelling Givaudan to comply with SSD’s discovery requests. In its opinion, the court of appeals held that the trial court erred in recognizing a self-protection exception to attorney-client privilege, and that communications between SSD and Givaudan during the period of representation were privileged under R.C. 2317.02(A) and were not subject to discovery or disclosure at trial unless SSD could show that Givaudan had waived the privilege either by giving express consent to disclosure or by voluntarily testifying about those communications. SSD sought and was granted Supreme Court review of the 8th District’s decision.

In today’s decision, the Supreme Court reversed the 8th District and reinstated the trial court’s order compelling discovery of communications between Givaudan and SSD during the period of representation. Justice O’Donnell noted that Ohio courts have recognized several exceptions to the attorney-client privilege codified by R.C. 2317.02(A) notwithstanding their absence from the text of the statute.  As examples, he pointed to the  “crime-fraud” exception that bars use of attorney-client privilege to conceal an attorney’s cooperation with a client’s wrongdoing; the lack-of-good-faith exception that prevents an insurer from using attorney-client privilege to conceal its bad-faith denial of a claim pursuant to state insurance statutes; and the joint-representation exception that prevents one co-litigant from using attorney-client privilege to conceal information from another party represented by the same attorney in the same case.

With regard to the “self-protection” exception at issue in this case, Justice O’Donnell wrote: “The self-protection exception dates back over 150 years to its articulation by Justice Selden in Rochester City Bank v. Suydam, Sage & Co. (N.Y.Sup.Ct.1851) … There, he wrote, ‘[w]here the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secrecy [sic].’ (emphasis added in part.) Since that time, this exception has become firmly rooted in American jurisprudence.  The Supreme Court of the United States recognized it in Hunt v. Blackburn (1888) … and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege.”

“Notably, Ohio courts, including this court, have recognized the self-protection exception. In Estate of Butler (1939) the beneficiaries of the estate of Henry V. Butler challenged the administrator’s payment of legal fees to Butler’s attorney, Grover C. Brown. The probate court struck Brown’s testimony regarding the services he rendered to Butler as privileged pursuant to G.C. 11494, the predecessor to R.C. 2317.02(A). The court of appeals reversed, holding that ‘an attorney in matters pertaining to his interest has a right to testify and is not precluded from doing so by virtue of [G.C.] 11494. The rule is very broad which permits testimony of an attorney in support of his claim for fees.’ …We affirmed that decision, explaining that ‘[s]ince the administrator was charged with maladministration in the allowance and payment of Brown’s claim against the estate, the defense of the administrator was dependent upon establishing the correctness of the claim by showing the amount and value of the services which Brown had rendered to Butler. … We noted that ‘the testimony of Brown (should not) have been wholly excluded on the ground that he had been counsel and attorney for Butler.’”

“Further, the self-protection exception to the attorney-client privilege permitting the attorney to testify also applies when the client puts the representation at issue by charging the attorney with a breach of duty or other wrongdoing …  (A) client may not rely on attorney-client communications to establish a claim against the attorney while asserting the attorney-client privilege to prevent the attorney from rebutting that claim. Rather, ‘the attorney-client privilege exists to aid in the administration of justice and must yield in circumstances where justice so requires,’ … The same considerations of justice and fairness that undergird the attorney client privilege prevent a client from employing it in litigation against a lawyer to the lawyer’s disadvantage.”

The Court also rejected Givaudan’s claim that SSD was barred by the privilege conferred on attorney work product from deposing Givaudan’s in-house corporate counsel, Frederick King and Jane Garfinkel, regarding the basis for their judgments that SSD was not providing effective legal representation and had overcharged for its services.

Justice O’Donnell wrote: “When the attorney-client relationship has been put at issue by a claim for legal fees or by a claim that the attorney breached a duty owed to the client, good cause exists for the production of attorney work product to the extent necessary to collect those fees or to defend against the client’s claim. … Thus, attorney work product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if they are directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere. Here, attorney work product, including information sought from King and Garfinkel regarding the staffing of the butter-flavor litigation, trial strategy, resources committed, and views that the firm provided inadequate representation through counsel lacking sufficient leadership, qualification, and experience, is directly at issue, as the reasonable value of the legal services performed by Squire Sanders and the quality of its legal work are the pivotal issues in this lawsuit, and the need for this evidence is compelling.”

“ … This information is otherwise unavailable to Squire Sanders because it is within the exclusive possession and knowledge of Givaudan, King, and Garfinkel. Accordingly, testimony of King and Garfinkel and documents related to the value and quality of the legal services rendered by Squire Sanders are not protected from discovery in this case by the work-product doctrine.”

Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp. 

Justice Judith Ann Lanzinger entered a separate opinion concurring with the Court’s judgment but disagreeing with the distinction drawn by the majority between exceptions to and waivers of the attorney client privilege. She wrote: “(I)n its attempt to distinguish waiver from exception, the majority uses overly broad language and declares that an exception ‘falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of [R.C. 2317.02.]’  What the majority fails to recognize is that an exception, like a waiver, arises because of some action taken by the client. It is only when the client puts the attorney’s representation at issue that the privilege no longer applies. The majority, however, would retroactively apply that action and hold that the privilege never existed. Because I believe that common-law exceptions are really no different than common-law waivers, I concur in judgment only.” 

Chief Justice Eric Brown did not participate in the court’s deliberations or decision in the case.

 The court's opinion is linked here.  (Mike Frisch)

September 28, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, September 27, 2010

Sad But Not Mitigating

An attorney who had converted entrusted funds was disbarred by the Massachusetts Supreme Judicial Court, notwithstanding his recovery from drug addiction:

I agree with the board that even if one were to consider addiction to illegal drugs as a "disability" and a mitigating factor, this is not a case where the factor would change the outcome. The respondent's failure to pay back any part of the funds owed to the client, even after he had been treated, apparently successfully, for his drug addiction, argues in favor of disbarment. See Matter of Dasent. 446 Mass. 1010, 1012-1012 (2006) ("It is established that, where a respondent has intentionally misused client funds, and failed to pay his client all that was due to her, the usual and presumptive sanction is disbarment"). Contrast Matter of Collins, 455 Mass. 1020 (2010) (attorney, who had been addicted to cocaine, completed rehabilitation programs, self-reported misappropriation of client funds to bar counsel, and had paid back more than half amount owing at time of disciplinary proceedings; indefinite suspension ordered with requirement for restitution of remaining amount owed). This conclusion is particularly true when the respondent's other charged and admitted misconduct is factored in, all of which occurred after his addiction had been treated and which his expert witness was unable to say was causally related to the expert's diagnosis of bipolar disorder.

The respondent and his counsel are correct that this is a sad case, and that he is to be commended for remaining drug- and alcohol-free since 2007. But in the circumstances presented, I agree with the board and the hearing committee that disbarment is the appropriate sanction.

The attorney had a separate practice located in his father's law office. (Mike Frisch)

September 27, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Cumulative Inaction Results In Reprimand

An attorney who had failed to properly pursue an estate matter has been publicly reprimanded by the Oregon Supreme Court:

...By failing repeatedly to appear in court for scheduled hearings, and by failing to file an inventory or an accounting, the accused unreasonably prolonged the conservatorship proceeding.  As in Gresham, the accused's inaction created an unnecessary burden on court resources.  At the trial panel hearing, the trial court judge testified that the accused's failure to advance the conservatorship proceedings affected the court's procedural efficiency and impaired the court's ability to supervise the conservatorship and protect [his client].  In addition, the accused's inaction harmed the substantive interests of his client and her husband.  Because of the accused's continued failure to file an inventory and final accounting, the court removed [the wife] as conservator and the accused as attorney.  As a result, the conservatorship estate incurred unexpected attorney fees.  We conclude that the accused's cumulative inaction during the course of the conservatorship proceeding prejudiced the administration of justice...

The accused is publicly reprimanded.

The court also addresses the procedures applicable when the attorney does not appeal to the Court. (Mike Frisch)

September 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)