November 4, 2010
The Wrong Place
The New York Appellate Division for the Third Judicial Department has imposed a one year suspension of an attorney for an incident that took place in the court clerk's office in October 2005.
The attorney had asked for a copy of her application for admission file: Then "[s]he engaged in inappropriate conduct at the office, resulting in her arrest and her being charged with obstruction of governmental administration and disorderly conduct." The criminal charges are pending.
The attorney did not appear at the disciplinary hearing. The referee described her behavior as "explosive and inexplicable." She has since made "unsubstantiated accusations against this Court."
Business Management Daily previously reported on the attorney's lawsuit against her former employer, DLA Piper. (Mike Frisch).
Another Way To Get Disbarred
The Minnesota Supreme Court has disbarred an attorney for running a prostitution ring. According to this report from WCCO, he had been charged with criminal offenses arising out of his involvement in operate a web site that advertised prostitution services. The attorney had served as an Assistant Hennepin County Attorney. He admitted the disciplinary charges and accepted disbarment.
MYFOX9.com called the operation the "Nice Guy" prostitution ring. They reported that a police informant who used the service brought the operation to the attention of law enforcement. (Mike Frisch)
November 3, 2010
Bar Exam Taker Fails To Upload Answers, Disqualified From Exam
Bar examination takers, heed this warning.
The Utah Supreme Court has upheld the State Bar's decision disqualifying an applicant from the Bar exam "for failure to upload his typed essay exam answers within the required time frame." The court rejected claims that the Bar had acted unconstitutionally, denying him procedural due process and equal protection of the law.
The applicant had signed up to take the exam on a laptop. He completed the essay portion but failed to upload his answers. He left the exam for dinner with his wife without completing the process and did not upload his answers by the 10 pm deadline. He discovered the problem on the second day of the exam but was advised by a proctor that he would not be allowed to finish the two-day exam.
The applicant had "received seven separate notices informing him that failure to upload his answers could result in his disqualification" from the exam. Only two of 243 applicants failed to follow this instruction.
The court held that the Bar was not obligated to provide the applicant with a formal hearing while the examination was being administered. The Bar has a significant interest in the efficient administration of the test. The applicant was not permanenty deprived of the opportunity to take and pass a future exam (as the applicant has done). The court concluded that the issue was not mooted by his later admission because it might recur and avoid review.
Please read and follow all bar examination instructions to the letter. If you are a law student, closely follow exam directions and rules. Sometimes the failure to do so can be a problem for both your career and your GPA. (Mike Frisch)
Crime Against Nature
The Massachusetts Supreme Judicial Court has disbarred an attorney convicted of a criminal offense in Rhode Island. The summary of the case from the web page of the Board of Bar Overseers described the criminal matter:
On October 28, 1997, the respondent was convicted in the Kent County Superior Court of Rhode Island of "the abominable and detestable crime against nature" in violation of R.I.G.L. § 11-10-1. The conviction involved sexual misconduct with a four year old boy. The respondent was sentenced to seven years' imprisonment, all suspended, and placed on probation with conditions that he engage in alcohol counseling and register as a sex offender.
The court rejected defenses that the conduct was unrelated to practice and that the attorney had been suspnded in Rhode Island. (Mike Frisch)
Dinner At A Reduced Rate OK
The Maine Judicial Ethics Committee has issued an advisory opinion that a judge may attend a dinner held to honor past presidents of the Maine Trial Lawyers Association. The judge may attend at a reduced fee (a determination reached after "careful consideration") so as to avoid making a monetary contribution to the association. (Mike Frisch)
Go Fly A Kite
An attorney who had defaulted on ethics charges that alleged 51 counts of misconduct in twelve client matters had his license revoked by the Wisconsin Supreme Court:
With respect to the level of discipline, we wholeheartedly agree with the referee's comment that Attorney...is not fit to be licensed as a lawyer in the state of Wisconsin. He engaged in a lengthy pattern of converting for his own benefit client or third party funds that had been entrusted to him. He used trust account funds from one client to cover his misappropriation of funds from another client. He even resorted to a multi-million dollar check-kiting scheme to continue his theft of others' money. When asked for information by the OLR, Attorney...merely stonewalled and never provided a response. Clearly, the only appropriate discipline for such misconduct is revocation.
He had been suspended on an interim basis for failure to cooperate with the Bar investigation. (Mike Frisch)
The Prosecutor And The Property
The Indychannel.com has a report that the Delaware County, Indiana prosecutor is the subject of ethics charges of selling the property of offenders without due process of law:
Four plaintiffs have filed a civil suit against [the prosecutor], the city of Muncie and Delaware County seeking the return of their property, plus damages.
When Casey Hammond was arrested on a charge of cocaine possession in 2006, he said police seized more than $1,000 and placed his 1986 Pontiac in storage.
But three years later, when his case was concluded, Hammond said he was told his car had been sold, even though no forfeiture action was ever filed.
David Cauthen alleges the same happened to him following his 2005 arrest on charges of possession of marijuana. He is seeking the return of $32,000.
"Yes, all my clients are currently incarcerated or have been prosecuted for criminal cases, but if it can happen to my clients, it can happen to anybody," said Cara Schaefer Wieneke, who also represents Lorenzo Ford and Michael Gilmore. "They are seeking damages for the time they've been without their property. Their rights have been violated under the Constitution. They are also asking for damages for that as well."
The disciplinary commission's brief of sanction chided [the prosecutor] for ignoring the potential negative impact his actions might have against his primary client, the state of Indiana.
"It raises questions about the integrity of the office and of the individual and it may cause, in certain instances, a loss of public confidence in the way that our system of administration functions," said legal expert Ron Elberger.
[The prosecutor's] attorney, Kevin McGoff, would not directly address the sanction conclusions but told 6News, "We have 30 days to file a response and we will do so in a timely fashion."
The commission recommended that McKinney be suspended indefinitely and that he could not apply for reinstatement in less than a year.
The Indiana Supreme Court will have the final determination on sanctions.
November 2, 2010
That's What Friends Are (Not) For
The Illinois Review Board has recommended a nine-month suspension of an attorney who assisted his best friend and former law partner in his post-disbarment unauthorized practice of law. The attorney engaged in further misconduct by falsely denying his role on two occasions. He thereafter fessed up:
...while we consider the Respondent’s failure to tell the truth regarding a disciplinary matter, even when placed under oath, to be serious misconduct, we continue to be of the opinion that "respondents in ARDC proceedings should be encouraged to testify truthfully and to correct earlier testimony that was inaccurate or untruthful, whether the result of a deliberate lie, mistake or recklessness." In re Rossiello, 03 CH 33
The Hearing Board had recommended a suspension of fifteen months. (Mike Frisch)
A Bad Result, An Inexact Science
The South Carolina Supreme Court affirmed the grant of summary judgment against plaintiff Harris Teeter, Inc. in a legal malpractice claim. The attorneys had handled an arbitration over a lease. The court concluded that the plaintiff did not establish a breach of the standard of care. A "bad result" does not translate into malpractice:
Because Harris Teeter's malpractice claim seeks to establish the element of a breach of the standard of care through the arbitrator's adverse ruling, we address the relationship between a "bad result" and a professional malpractice claim. Harris Teeter lost in arbitration—and that bad result forms the core of Harris Teeter's malpractice allegation. Of course, any professional negligence claim involves a bad result. We reject as a matter of law any suggestion that a bad result is evidence of the breach of the standard of care. To do so would change the landscape of our malpractice law, for all professionals. We adhere to the principle that the exercise of a professional's judgment (and accompanying acts and omissions) must be considered at the time the professional service is rendered and not through the lens of hindsight.
In rejecting a hindsight analysis, the trial court found Respondents' actions were protected under the judgmental immunity rule, which has not been formally adopted in South Carolina. The judgmental immunity rule provides that "there can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment." Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1980). In referring to the judgmental immunity rule as "a sound rule," the Woodruff court observed that "[o]therwise every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second guess the decisions of the first attorney with the advantage of hindsight." Id. In assessing liability, a court should never measure a professional's performance through the lens of hindsight. Although an attorney may be liable for damages to a client for failure to act with a reasonable degree of skill and care, "[t]his does not mean, however, that an attorney acts as an insurer of the outcome of a case." Crosby v. Jones, 705 So. 2d 1356, 1358 (Fla. 1998).
Respondents made an informed judgment in their approach to the arbitration hearing. Respondents made a tactical and strategic decision to focus on whether Harris Teeter actually breached the lease and the materiality of the alleged breach. Respondents, specifically Howell Morrison, made a tactical decision not to emphasize the precise value (in dollar terms) of the under-market lease because the attorneys believed this could work to Harris Teeter's detriment: "In my judgment it would not have helped the presentation of the case to emphasize the under market lease that Harris Teeter held…and in my view then, and still in my view, if we had spent time showing the Arbitrator emphasizing that we had a submarket lease, it was very much a two-edged sword that could have easily worked to our detriment."
Morrison made a judgment call concerning the presentation of the Kiriakides factors—a judgment call that was not unreasonable as a matter of law. Because the judgment call was reasonable as a matter of law (and consequently no question of fact is presented), there is no viable claim of malpractice. Morrison's judgment call falls squarely in the category of a "professional judgment made with reasonable care and skill." Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 666.
Although the judgmental immunity rule correctly highlights the rejection of a hindsight analysis, Respondents' entitlement to summary judgment does not depend on our adoption of the rule. We therefore leave the question of adoption of the judgmental immunity rule for another day...
The practice of law is not an exact science. The practice of law involves the exercise of judgment based on the circumstances known and reasonably ascertainable at the time the judgment is rendered. "[A] lawyer shall exercise independent professional judgment and render candid advice." Rule 2.1, RPC, Rule 407, SCACR. The Rules of Professional Conduct are replete with the recognition that a lawyer cannot pursue every issue that arises in a case while effectively representing his or her client. To the contrary, the Rules recognize that in order to provide a client the best and most competent representation, a lawyer has the professional discretion to make a judgment call as to which legal theories are the strongest and will best serve the client's interest. See Rule 1.3, cmt. 1, RPC, Rule 407, SCACR ("A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued."); Hudson v. Windholz, 416 S.E.2d 120, 124 (Ga. 1992) (recognizing that "the tactical decisions made during the course of litigation require, by their nature, that the attorney be given a great deal of discretion").
In retrospect, should Respondents have presented precise financial data to the arbitrator concerning the substantial boon of the under-market lease to Harris Teeter? Perhaps. But hindsight is not the measuring stick. A case can always be tried "better." Respondents made a considered judgment to focus on the merits of the alleged breach and particularly its materiality. As noted, that judgment call was not unreasonable as a matter of law. And as the arbitrator acknowledged, lease forfeiture was a "drastic remedy," as all understood that EBV wanted a new lease with market based rent and Harris Teeter wanted to preserve the 1979 lease.
Here, Respondents candidly warned Harris Teeter of the risk of lease termination, even to the point of Harris Teeter characterizing Respondents' legal candor as "wishey washey." Harris Teeter's flippant disregard of Respondents' candid warning mirrored its longstanding disregard of EBV's inquiries and requests to honor the lease. Harris Teeter went into arbitration with its eyes wide open regarding the risk. Respondents exercised independent and reasonable professional judgment in choosing what they deemed a proper strategy in representing Harris Teeter's interest before an arbitrator highly skilled and knowledgeable in commercial real estate matters. Because Respondents' judgment was not unreasonable as a matter of law, the trial court properly dismissed this malpractice claim.
November 1, 2010
Public Defender Conflict Does Not Warrant Reversal
The Montana Supreme Court on Thursday upheld the conviction of Anthony St. Dennis in the 2007 beating death of Forrest Clayton Salcido, a sometimes-homeless veteran from Missoula, saying there was no conflict of interest in his defense.
Both St. Dennis and his co-defendant in the case, Dustin Strahan, were represented by public defenders, a situation that Missoula attorney Colin Stephens claimed violated St. Dennis' constitutional rights.
In response to that appeal, the state contended that "significant hardships" would arise if the Supreme Court ruled that the public defender's office could not represent co-defendants.
St. Dennis, who was an 18-year-old Hellgate High School senior at the time, was one of two men accused of fatally beating and stomping Salcido, 56, near the California Street footbridge along the Clark Fork River trail in Missoula.
Strahan, then 21, testified against St. Dennis when the latter was convicted of deliberate homicide by a Hill County jury in Havre, where the case was moved because of pretrial publicity. St. Dennis eventually was sentenced to 100 years in prison, ineligible for parole for 40 years.
Strahan then cut a deal, pleading guilty to accountability for deliberate homicide in Salcido's death.
Stephens argued to the Supreme Court in July that "one is directly pointing the finger at the other and is represented by an attorney out of the same law firm" - in this case, the Montana Office of Public Defender.
But the Supreme Court found in its 22-page opinion Thursday that such situations should be considered on a case-by-case basis. The court also rejected St. Dennis' contention that the District Court abused its discretion when it denied his requests for immunity for a proposed witness. And it denied his motion for a new trial.
The main focus of the opinion, however, concerned the conflict issue.
"Clearly, no system is fool-proof," Justice Patricia Cotter wrote in the majority opinion. "A conflict of interest could at some point arise out of OPD's operations. However, given the current strong precautions and safeguards, including ethical walls, in place at OPD, dual representation of co-defendants by attorneys in different offices has not created an actual conflict of interest."
Chief Justice Mike McGrath, as well as Justices Michael Wheat, William Leaphart, Jim Rice and Brian Morris concurred.
Justice Nelson dissented and would find that the treatment of the two public defender offices as separate firms to be "an artificial distinction that is not supported by actual practice within the public defender system...In point of fact, the idea that regional public defender offices are separate and independent is a myth."
Justice Nelson notes that the same public defender appointed the attorneys for both defendants, which "indicates that [the deputy public defender's] authority and supervisory capacity extended over all four attorneys. " The two clients were, most assuredly, directly adverse to each other.
The majority took the ACLU as amicus to task for referring to correspondence outside the record. Justice Nelson contends that the letters at issue "exemplify [the deputy public defender's] authority over and supervision of the counsel he appointed from both regional offices." The letters reflect that the deputy public defender "chastise[d one of the supervised attorneys] for the position she was taking...regarding the examination of some of the physical evidence by an OPD approved expert in Florida." She responded that "they are supposed to be acting as separate offices with respect to these two cases and, as such, she would not hesitate to act in her client's best interests."
Justice Nelson would remand to the district court to consider the conflicts issue in light of the information reflected in the letters.
There may be a problem with the link. The case is State v. St. Dennis, decided October 28, 2010. (Mike Frisch)
One Client Too Many
The Massachusetts Board of Bar Overseers accepted a stipulated public censure of an attorney for a conflict of interest by representing a divorcing husband and wife. The following summary describes the conduct:
In September of 2009, the respondent filed with the probate court several documents seeking a divorce between a husband and wife. Included in these documents were the following:
- A Joint Petition for Divorce Pursuant to G.L. c. 208, § 1A, signed by the wife and by the respondent for the husband;
- Financial statements of the husband and wife, each of which was signed by the respondent as counsel for the respective spouse;
- A separation agreement that the respondent had prepared for both the husband and the wife;
- A motion from the wife to waive her appearance in the probate court; and
- An affidavit of the wife, stating in part that, “The attorneys at [the law firm where the respondent worked] have explained to me that they are representing both me and my husband without partiality to resolve this simple uncontested divorce.”
- On January 15, 2010, the respondent appeared in the probate court on the divorce and was questioned by the judge concerning the wife’s statement set forth in paragraph 2(e). In response the respondent acknowledged that the wife was told that the respondent’s firm “would help her as well.”
The respondent did not and could not reasonably believe that her representation of either spouse would not adversely affect the relationship with the other spouse. Neither the husband nor the wife gave informed consent after consultation to the respondent’s joint representation.
The probate court denied the wife’s “motion of waiver of appearance” and entered a judgment of dismissal on the joint petition for divorce, as well as an order of disapproval of the agreement submitted by the parties, “based on counsel representing both parties.”
By signing and submitting, as counsel for both parties, financial statements for both the husband and wife in a petition for divorce and otherwise appearing for both parties, the respondent:
- engaged in a conflict of interest, in violation of Mass. R. Prof. C. 1.7(a) and 8.4(h).
- demonstrated a lack of competence, in violation of Mass. R. Prof. C. 1.1.
- failed to seek the lawful objectives of her client through reasonably available means permitted by law and the rules, in violation of Mass. R. Prof. C. 1.2(a).
Just Say "No Contest"
A California attorney faces a recommendation that he be disbarred as a result of a criminal conviction and his failure to report the conviction to the State Bar. The attorney has been disciplined on three prior occasions.
The attorney was charged with three felony counts alleging a "capping" conspiracy involving payments for client referrals. He pled no contest to a misdemeanor count of conspiracy to commit an act injurious to the public or to obstruct justice. He claims that he entered the plea "only to save money," and was innocent. He further claimed that he was not obligated to report the charges or conviction:
I didn't think I had to. It was a misdemeanor and a nolo contendre plea and I didn't think I did anything wrong...[The District Attorney] said just plead to the general conspiracy type thing which obstruction of justice really doesn't mean anything.
He also claimed that he relied on the advice of counsel.
Between A Rock And A Hard Place
The Pennsylvania Supreme Court has imposed an eighteen-month suspension of an attorney who had entered into a lease that allowed him to quarry stone from the lessor's land for a fee. A dispute thereafter arose.
The attorney filed (and several times amended) two civil complaints. Both complaints "were dismissed when called to trial without plaintiffs producing any evidence." The trial judge called a counterclaim filed by the attorney on behalf of the lessor's adjoining landowner as "presenting evidence so weak and spurious as would make one question whether it was pulled from thin air." The attorney also filed baseless objections to the lessor's mining permit.
The attorney engaged in a conflict of interest in his representation of the neighbor, who was a frail and elderly man who died during the litigation. He maintained frivolous litigation and claims with mining authorities, contacted the represented opposing party directly and misrepresented the status of a court order.
His testimony at the disciplinary hearing was rejected as incredible.
The Disciplinary Board had proposed a three-year suspension. (Mike Frisch)