October 29, 2010
Georgetown Law Seeks Externship Director
A job posting just announced at Georgetown:
Georgetown University Law Center is seeking to hire a Externship Director. We are looking for a person with both administrative and teaching skills who can build and grow an excellent program. The Externship Director will be responsible for all aspects of the program, including: assisting students in finding appropriate placements; ensuring the quality of student placements; designing and teaching "bookend" classes at the beginning and end of the semester in which students define their learning goals and then reflect on whether they have achieved them; and holding individual student reflection sessions throughout the semester. The Externship Director will be supervised by the Associate Dean for Clinical Programs and Experiential Learning; because this is not a faculty position, there is no scholarship requirement. Teaching experience and familiarity with public interest, non-profit and/or governmental entities are desirable. Please send a resume and cover letter to Associate Dean Deborah Epstein, firstname.lastname@example.org. Applications must be received by November 12th, 2010.
Half-Baked Settlement Lands Judge In Hot Water
The New York Commission on Judicial Conduct (as it regularly does) has sanctioned a non-attorney judge for his involvement in a matter that took place on premises that he owned. The property was rented to Nana's Bakery and Cafe (the tenant was named Cook, not Baker) for $750 per month. Ms. Cook was $2,500 in arrears in payments due to the judge at the time of the events described below.
A bakery employee was a social acquaintance of the judge. The judge received a warrant seeking an arrest of the employee on petit larceny charges (involving theft from Nana's). The judge involved himself in settlement attempts that resulted in a payment to Ms. Cook. Ms. Cook paid the judge rent arrearages.
The judge acknowledged that his intervention was inappropriate. The commission imposed a censure. (Mike Frisch)
The More Appropriate Sanction
The Iowa Supreme Court has rejected a three-year suspension proposed by its Attorney Disciplinary Board and Grievance Commission and revoked the license of an attorney admitted in 1990. The disciplinary complaint alleged nine counts of ethics violations.
The attorney had represented a client who was subject to an involuntary guardianship and conservatorship. A criminal charge was filed against the client's daughter alleging neglect of the client. The attorney represented the daughter and was disqualified for a concurrent conflict of interest. The attorney was later found in contempt for her contacts with the daughter after the disqualification order was entered.
The court found that a stipulation that the attorney made "unduly critical allegations" about a probate matter did not establish an ethical violation without a further stipulation that her claims were false. The stipulation was sufficent to establish misappropriation and neglect of a client matter.
The court found that the violations established by the stipulation made revocation the "more appropriate" sanction. (Mike Frisch)
October 28, 2010
No Reason To Suspend
The New York Appellate Division for the First Judicial Department affirmed findings of misconduct involving neglect of immigration matters but reduced the referee's proposed six-month suspension to a public censure. The court found mitigating factors that warranted a non-suspensory sanction:
...the only issue is that of the appropriate sanction to impose. In mitigation, respondent submitted evidence of his reputation in the legal community, his high rate of success (90-95% of cases won on the trial and appellate levels), his dedication to his clients and their satisfaction with his services, the nature of his practice, primarily work with immigrants and asylum seekers, his advocacy on behalf of victims of female genital mutilation (FGM) and his work to have FGM recognized as a basis for seeking asylum, and the notable changes respondent instituted in response to an admonition, including implementation of a computerized calendar system, staff training, and a reduction in caseload, which were designed to, and succeeded in, preventing recurrences of neglect. While nine instances of neglect over a two-year period is not insignificant, the neglect constituted only a small percentage of the 5,000-6,000 cases handled by respondent's office. Further, respondent has fully cooperated with the proceedings, admitted the majority of the charges and factual allegations, and claims to have since made restitution to the affected clients.
We find that under the circumstances, public censure, rather than suspension, is the appropriate sanction.
The prior admonition was not considered to be an aggravating factor because the misconduct found here took place before the admonition had been issued. (Mike Frisch)
Judge May Not Advocate For Grandson Of Friend
The (very active) Florida Judicial Ethics Advisory Committee has opined on the following issue:
Can a judge write a letter to another judge to advocate a drug program or testify before that other judge to explain the drug program that can be used as an alternative to incarceration, in a case involving a relative of the requesting judges' friend?
The inquiring judge's friend [sic] grandson has a criminal case pending before another judge in the same jurisdiction. The inquiring judge asks if it would be proper for the judge to either write a letter to the presiding judge advocating a drug program which may be used as an alternative to incarceration or, if subpoenaed, appear before the presiding judge to explain the program.
The conduct contemplated by the inquiry seeks to place the judge as a witness to explain a drug treatment program to the presiding judge. There appear to be no unusual circum-stances, like an absence of other qualified witnesses, that would make the appearance of the judge necessary to explain the drug program. Therefore, the demands of justice do not require the judge's appearance. The committee assumes that there are other witnesses that the defendant could summon to testify and explain the program to the presiding judge. The only other reason why a person might want to use the testimony of this judge then would be to use the prestige of the judicial office to advocate the use of this program and to be able to use the position of this judge as a colleague to further the defendant's cause and not be sentenced to jail.
The committee is of the opinion that this contemplated conduct will violate Canons 2A and B, 3B(9) and 4A in that the testimony on behalf of the judge's friend's grandson will lend the prestige of the judicial office to advance the private interests of others; the appearance as a witness by the judge will erode public confidence in the integrity and impartiality of the judiciary; will be perceived as testimony seeking to affect the out-come of the sentencing proceeding; will cast doubt on the judge's capacity to act impartially as a judge; and undermine the judge's independence, integrity or impartially. Therefore, the inquiring judge should not appear as a witness before the presiding judge.
The Minnesota Supreme Court has accepted a joint recommendation for discipline and imposed a suspension for a minimum of one year. The attorney was the chief executive officer of two title companies. He admitted that his companies had
failed to record more than 3,000 mortgages on real estate transactions, failed to make more than $1.321 million in mortgages payoffs to prior lenders with funds entrusted to the title companies for that purpose, and failed to remit more than $196,000 in title insurance premiums to title insurers.
The attorney consented to the revocation of his Minnesota real estate broker's license, real estate closer's license, and insurance producer's license. He stipulated to the entry of judgments that total over $6.3 million. (Mike Frisch)
Do It Yourself
The web page of the Massachusetts Board of Bar Overseers has a summary of a reprimand of an attorney who practiced while under an administrative suspension for his failure to pay Bar dues. The summary notes that the conduct was not intentional, as the attorney gave a check and the registration materials to his spouse to make the payment. It did not get done. (Mike Frisch)
October 27, 2010
Left At The Scene
A Colorado attorney who left the scene after his car struck a bicycle-riding public defender has been suspended for three years based on his conditional admission of misconduct.
Law News Colorado reported:
The charges stemmed from an August arrest after [he] hit [a] Jefferson County public defender... who was riding his bike along the Evergreen Parkway ramp to eastbound I-70. [The attorney] was driving drunk in the hit-and-run accident with his three children, 11-year-old twins and an 8-year-old, in the vehicle.
The Denver District Attorney’s Office is handling the case because of the victim’s status as a public defender. [The attorney] is scheduled to be sentenced on April 9 at 8 a.m. in Jefferson County Court, Division E. He will be facing nine years in prison upon sentencing.
TheDenverChannel.com noted that, although the attorney left the scene, a key piece of evidence had been left behind: his front license plate.
The victim's story is told by State Bill Colorado here. (Mike Frisch)
Fee Arbitration Decision Enforced Against Former Client
A law firm filed suit against a former client for unpaid fees. The client responded with counterclaims of malpractice. The matter was stayed while the Bar's fee arbitration process went forward. The client lost fee arbitration and the law firm secured summary judgment ijn light of the resolution of the fee arbitratiobn. The client appealed.
The Maine Supreme Court agreed with the trial court that the fee arbitration result was entitled to res judicata effect in the litigation, rejecting the contention that the fee arbitrators acted outside of the spoce of their authority. (Mike Frisch)
No Spirit, No Excellence
An opinion from the Florida Judicial Ethics Advisory Committee:
Whether a judge may accept the “Spirit of Excellence” Government Leader of the Year Award from an organization whose purpose is to provide business training and networking opportunities for women, where the award will be presented at a ceremony not advertised as a fundraiser but at which event expenses will be paid by the sale of tickets to the event and by congratulatory, business or personal ads in an event publication and where the organization will conduct a raffle to raise money for a scholarship fund.
We have opined repeatedly that judges may not participate in fundraisers where the event’s purpose is not law-related. See Fla. JEAC Op. 09-07 (judge may not receive award at fundraiser for organization that is mainly involved in education programs because event would not concern the law, the legal system or the administration of justice, and the funds raised would not be used for law related purpose); Fla. JEAC Op. 08-22 (judge may not appear as “dignitary guest” in fund-raising ballet, sponsored by ballet company organized as charitable organization, and allow company to use judge’s name and title to advertise event); Fla. JEAC Op. 03-16 (judge may not participate in voluntary bar association’s fundraising event by providing goods for sale or auction, performing skit, displaying talent, being a model, or otherwise performing at event); Fla. JEAC Op. 01-09 (judge may not participate as featured speaker at fundraising roast of prominent local figure); Fla. JEAC Op. 00-31 (judge may not act as chairperson of kickoff event for fundraising organization); Fla. JEAC Op. 99-15 (judge may not be guest speaker at college alumni banquet, when banquet is main fund-raiser for alumni club); Fla. JEAC Op. 98-32 (judge may not participate in charity fashion show by announcing winning tickets and describing items won); Fla. JEAC Op. 90-20 (judge may not participate as guest of honor at charitably-funded institution’s dinner where patrons may purchase journal advertisements dedicated to the judge, and distribution of journal is one of institution’s main fundraising activities); and Fla. JEAC Op. 90-12 (judge may not serve as chairman of golf tournament, even though judge would neither participate in solicitation of funds nor be identified as judge in materials associated with tournament, where entity sponsoring tournament is nonprofit organization which raises funds to support sports activities).
In Fla. JEAC 99-09 the Committee advised a judge that she could not receive an award and be inducted into a County Women’s Hall of Fame at an annual luncheon where program advertisements had been sold to raise funds for the sponsoring organization. We noted that while the luncheon itself was not a fundraiser, the organization’s “major source of income [was] through advertising in the program,” which was a souvenir journal in which the public could purchase ads congratulating the inductee(s). Thus, the ultimate purpose of the luncheon was to raise funds for the organization.
In conclusion, the fact that the sponsoring organization does not bill an event as a fundraiser is not dispositive. If the event has the characteristics of a fundraiser, it must be considered as such, labels notwithstanding. Further, as a practical matter, whether the event will realize a profit is unknowable in advance, and so the likelihood of a profit cannot be used to determine if the event is intended to be a fundraiser.
A dissenting view, in part reprinted here;
While the organization will conduct a raffle at the event to raise money for a scholarship fund, this appears to be an incidental activity and not a substantial part of the event. Thus, the minority does not perceive that the conduct of the raffle transforms the event into a fund-raising activity. The minority is aware that a number of civic and charitable organizations, including Rotary clubs and churches, conduct raffles as an incidental part of a meeting or event. The raffle at the subject awards dinner does not appear to be a major part of the purpose of the event, based upon the judge’s inquiry. Thus, it does not convert this event to a fundraiser in the opinion of the minority.
October 26, 2010
Looking For Mr. C.
A three-judge court in Virginia has accepted an agreed disposition in a case where the attorney had represented a client in a contested, fault-based divorce.
At a hearing on custody and support, a witness (hereinafter "Mr. C.") testified that the attorney's client was a prostitute. He knew this because he was a client of hers for eight months. He also testified that he spoke to two other clients who had paid for sex with her.
The attorney's client was stripped of custody and lost her spousal support award.
The attorney then sent a letter to the wife of Mr. C. Attached was a copy of Mr. C.'s testimony. The letter
stated that [the attorney] simply did not understand "why a person would falsely claim that he visited a prostitute six or eight times" if it was not true.
The letter also asked for her help in locating Mr. C.
The court imposed a public reprimand without terms for violation of rules relating to respect for the rights of third parties and fairness to opposing parties and counsel. (Mike Frisch)
October 25, 2010
The former Commonwealth's Attorney for Floyd County, Virginia has agreed to a public reprimand with terms for disabling computer software (the hard drives) from three office computers as he was leaving his service the office. Two of the hard drives were too be used by the incoming Commonwealth's Attorney.
The attorney used public funds to purchase three new hard drives and asserted that he had destroyed the three that he had removed. He claimed that he was attempting to upgrade the three office computers. He did not save any of the removed information.
When the new Commonwealth's attorney took office, she was unable to access information on the office computers. She had the computers evaluated by experts, leading to charges of petit larceny and disabling computer software against the attorney. A special prosecutor handled the case, which resulted in a dismissal and expungement in exchange for a payment as reimbursement for the software. The attorney also was required to do community service.
The reprimand reflects that the conduct was disruptive to the transition to the new Commonwealth's Attorney and to the administration of justice.
Some details here from the Blue Ridge Muse. (Mike Frisch)
Rutgers Clinic Subject To Open Records Act
The New Jersey Appellate Division has reversed a trial court decision that the Rutgers Environmental Law Clinic was not subject to the state's Open Public Records Act ("OPRA").
The plaintiffs had sought documents relating to the clinic's finances and its representation of two private citizens' groups that were opposing the proposed development of an outlet mall.
The court here concluded that the trial court erred in exempting the clinic from OPRA and remanded to the trial court for a determination whether specific documents are exempt from disclosure under the definition of "public records." The trial court also must determine if records should be disclosed under a common lasw right to access. (Mike Frisch)
Power Of Attorney
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing a lawyer’s use of a contingent fee agreement in which a client grants a power of attorney to the lawyer as to all aspects of a legal matter.
Opinion 2010-6 notes the “ethical risks” that exist with a power of attorney granting a lawyer authority to make all decisions and execute all documents that the lawyer deems necessary in a client’s contingent fee matter. It also states that “in the absence of extraordinary circumstances, the practice is unethical for the lawyer and shortchanges the client’s role in legal representation.”
The opinion finds that “such use of a broad power of attorney in a contingent fee agreement contravenes Prof. Cond. Rule 1.2(a) by improperly allocating all of the authority regarding the representation from the client to the lawyer and disregards Prof. Cond. Rule 1.4(a) by eliminating required communication by the lawyer to the client.”
The opinion further notes that “a lawyer’s contingent fee representation of a client in a civil matter requires skillful communication. A lawyer must communicate effectively to understand the client’s objectives of representation, explain settlement offers, reach agreement to settlement terms, obtain necessary client signatures, and disburse settlement proceeds. Such communication is a time honored legal skills, but is a time laden process.”
A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-006.doc.