Saturday, November 13, 2010

Call Tony The Tiger...

The Arizona Disciplinary Commission has imposed a reciprocal public reprimand based on a sanction imposed on an attorney in Nevada. The misconduct involved a ten second radio advertisement that ran in Nevada several times over a period of several months. The ad was in Spanish and played on a Spanish language radio station. The attorney paid over $19,000 for the spot.

The ad was prepared by the attorney's employee and was based on a California ad. It told the listener that a victim of an auto accident was entitled to $15,000. It then said "Call Tony the Tiger [attorney's last name] at [phone number]."

The attorney did not speak fluent Spanish and had not sought an English translation prior to approving the ad for radio play. (Mike Frisch)

November 13, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 12, 2010

Differing Results Precludes Summary Judgment

The Oregon Court of Appeals reversed the grant of summary judgment in a legal malpractice case.

In the underlying criminal matter, the plaintiff had lost his post-conviction ineffective assistance of counsel claims. He then prevailed in federal court.

The court here found that the inconsistent results precluded summary judgment:

In this case, the existence of inconsistent decisions on the issue of the adequacy of the representation provided to plaintiff by defendant is clear.  In the post-conviction proceeding, the trial court determined that defendant afforded plaintiff effective assistance, and we affirmed that decision.  The federal court reached the opposite conclusion.  We conclude that it would be fundamentally unfair to preclude plaintiff from litigating the issue of defendant's negligence.  The proper result, and one consonant with the remedial policies of Oregon malpractice law, is that issue preclusion is inapposite in these circumstances.  Just as a judgment in favor of a post-conviction petitioner does not give rise to offensive issue preclusion against a defendant attorney, see Stevens, 161 Or App at 456, so too, a judgment in favor of a defendant attorney in a post-conviction proceeding does not give rise to defensive issue preclusion when there is a later, inconsistent judgment in a federal habeas corpus case that counsel's performance was constitutionally inadequate.

(Mike Frisch)

November 12, 2010 in Clients | Permalink | Comments (0) | TrackBack (0)

Ya Got Trouble (In Davenport, Iowa Not River City)

The Iowa Supreme Court has held the following ordinance of the Davenport City Council to be unconstitutional:

The city council finds that there has been an increase in the number of criminal acts committed by juveniles. The city council further finds that those who bring children into the world, or those who assume a parenting role, but who fail to effectively teach, train, guide and control them, should be accountable to the community under the law. Those who need assistance and training should be aided; those who neglect their parenting duties should be encouraged to be more diligent, through civil sanctions, if necessary. This chapter should be construed to achieve these remedial objectives by addressing situations where parents or guardians have failed or neglected to act responsibly or reaonably in the supervision of their minor children.

Is there a pool hall in town? (Mike Frisch)

November 12, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)

"A Command, Not A Suggestion"

An attorney who had continued to take on client matters while serving a suspension of eighteen months was disbarred by the Nebraska Supreme Court. The attorney admitted the violations but claimed mitigation based on depression.

The referee had found that the misconduct was caused by depression but "could not conclude with any degree of confidence whether treatment would substantially reduce the likelihood of future misconduct." The attorney took exception to the quoted finding.

The court accepted "for the sake of argument" that depression could be considered as a mitigating factor. However, the attorney had disobeyed the court's suspension order ("a command, not a suggestion") and thus "the only appropriate sanction is disbarment." (Mike Frisch)

November 12, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Business Venture With Client Leads To Disbarment

The South Carolina Supreme Court has disbarred an attorney for misconduct that primarilty involved a business transaction with a client:

In terms of Respondent's business dealings with Client, we find Rule 1.8(a), RPC, of Rule 407, SCACR is primarily implicated.  Although Rule 1.8 does not prohibit attorney-client business relationships, it clearly delineates three mandatory requirements an attorney must satisfy in order to comply with the standards of ethical conduct.  As a result, we have cautioned attorneys about engaging in business transactions with clients.  See In the Matter of Harper, 326 S.C. 186, 193, 485 S.E.2d 376, 380 (1997) ("In view of the trust placed in attorneys by their clients and attorneys' often superior expertise in complicated financial matters, attorneys must take every possible precaution to ensure that clients are fully aware of the risks inherent in a proposed transaction and of the need for independent and objective advice.");  In the Matter of Conway, 305 S.C. 388, 393, 409 S.E.2d 357, 360 (1991) (noting that Rule 1.8(a) does not forbid attorney-client business relationships but recognizing that "they require attorneys to maintain the highest professional and ethical standards in their dealings with clients.  No exceptions to that duty exist merely because an attorney chooses to become involved in business transactions with his clients.").

Here, based on the admitted allegations of misconduct, we find Respondent not only misrepresented the extent of his financial investment in the real estate venture, but also the potential return on Client's investment.  Furthermore, Respondent violated each of the three mandatory provisions of Rule 1.8(a), RPC, of Rule 407, SCACR.  Specifically, in entering into the business venture with Client, Respondent failed to:  (1) fully disclose the terms of the commercial business transaction to Client in writing and in a manner that could be easily understood by Client; (2) advise Client in writing of the desirability of seeking independent legal counsel regarding the transaction and to give Client a reasonable opportunity to seek such counsel; and (3) seek informed consent, in the form of writing signed by the Client, and to outline the essential terms of the transaction and Respondent's role in the transaction, including whether Respondent would be representing Client in the transaction.   

He also had not fully cooperated in the disciplinary process. (Mike Frisch)

November 12, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

Noklahoma

The Oklahoma Supreme Court has denied the reinstatement petition of an attorney disbarred in 1997. The court noted a series of considerations that precluded reinstatement. He had held himself out as an attorney after disbarment, filed a required affidavit twelve years too late and failed to pay costs. Also:

A fourth consideration in reinstatement proceedings is the petitioner's moral character...When [he] filled out the OBA's reinstatement questionnaire, [he] omitted numerous facts and misstated other facts. One fact that [he] lied about on the form was whether he had ever had a complaint filed against him in any civil forum alleging fraud, deceit, misrepresentation, forgery, or legal malpractice. [He] answered no to the question. In fact, a civil case was filed against [him] in which he was found to have acted fraudulently. The court entered judgment in 1990 against [him] for $70,999.00, plus costs of $92.00 and attorney fees of $6,475.00. [He] did not attempt to repay the 1990 judgment until two years before seeking reinstatement. On the questionnaire, [he] answered that he owed about $30,000.00 on the judgment when he actually owed over $150,000.00 because of the accrued interest. When questioned about the omissions and misstatements, [his] attitude showed that he was indifferent to the blatant deceptions. The deceptions in answers to the questionnaire and [his] attitude show that he does not possess the moral character necessary for admittance to the practice of law in Oklahoma. It also shows that he has not reformed his conduct since being disbarred in that lying to the OBA was part of the misconduct which resulted in his disbarment.

 

A fifth consideration in reviewing a reinstatement petition is the original misconduct's seriousness....[his]disbarment was based on his representing adverse interests in the hostile takeover of a business, entering into a business transaction with a client without disclosure, providing a client with financial assistance in connection with litigation, failing to act diligently and competently on his client's behalf, lying to clients, failing to keep clients reasonably informed, lying to the OBA's investigator, and failing to respond to the OBA's demands concerning grievances. The full details of [his] misconduct can be found in the opinion disbarring [him], State ex rel. Okla. Bar Ass'n v. Perry, 1997 OK 29, 936 P.2d 897

 

A sixth consideration is learning and competency in the law. When questioned about the rules regarding attorney trust accounts, [he] was unable to explain the basic principles. This is most disturbing given that the evidence showed that, prior to being disbarred, [he] had written checks on his trust account to pay for legal seminars and that the checks were returned for insufficient funds. It is clear that [he] does not yet understand the rules for segregating his clients' funds. Further, [he] was not familiar with major changes to the Oklahoma Rules of Professional Conduct. 5 O.S.Supp. 2008, ch. 1, app. 3-A. [He] failed to show by clear and convincing evidence that he had the requisite competency and learning in the law.

 

  (Mike Frisch)

 

November 10, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 9, 2010

In The Woods

The Illinois Administrator has filed a two-count complaint against an attorney. Count One alleges a course of conduct that led to a criminal conviction:

Respondent engaged in a sexual act with another individual while in public at Somme Woods Forest Preserve, in Northbrook, Illinois. Officer William Ortland ("Ortland") from the Cook County Forest Preserve Police, observed Respondent and ordered him and the other individual to cease their activity and to come to his police vehicle. Instead, Respondent entered his automobile and attempted to flee the scene. Ortland ordered Respondent to stop his automobile. Respondent failed to stop and struck Ortland, causing Ortland to fall onto and roll from the hood of Respondent's automobile, resulting in an injury to Ortland's knee. Ortland subsequently drew his service revolver and ordered Respondent to stop and exit his vehicle. Respondent then stopped, was taken into custody and was charged with public indecency and aggravated battery...

...the Cook County State's Attorney filed a two-count criminal information against Respondent, charging him with two counts of aggravated battery of a police officer, both Class 2 felonies...

...Respondent entered into a plea agreement with the State, whereby he agreed to pled guilty to Count One of the Information to a reduced charge of misdemeanor battery, a Class A misdemeanor...Pursuant to the plea agreement, the State nolle prossed the charge of aggravated battery of a police officer, contained in Count Two of the information. On that date, the Honorable Larry Axelrood entered a judgment of conviction and sentenced Respondent to a period of twenty-four months probation, ordered that Respondent pay $560.00 in fines and perform 100 hours of community service...

The second count alleges that the attorney failed to report the conviction to disciplinary authorities. (Mike Frisch)

November 9, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

An Error In Your Favor

A Virginia attorney has accepted a public reprimand without terms as a result of misconduct in a divorce case in which he represented his sister. The sister was found to owe over $11,000 in child support arrearages. The attorney filed but lost exceptions to the commissioner's report that had found that his client owed the arrearages. Then, opposing counsel was instructed by the commissioner to draft an order.

Opposing counsel made an error in the draft order to the effect that her client owed the money rather than vice versa. The order was entered with the error. When the error was discovered, the attorney refused to sign a corrected order.  With knowledge of the mistake, he initiated action that sought to collect the money. He cited inapposite cases in support of his position. Eventually, the order was corrected.

The admitted violations involved the rules that require fairness to opposing parties and truthfulness to third parties. (Mike Frisch)

November 9, 2010 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Monday, November 8, 2010

Room Share Creates Appearence Of Impropriety

The South Carolina Supreme Court accepted a consent discipline and removed a municipal court judge from office. The court recited the facts:

In February 2008, respondent attended the South Carolina Summary Court Judges Association Staff/Judges Seminar in Myrtle Beach, South Carolina.  Jane Doe (fictitious name), a twenty year old female, attended the seminar with respondent and his staff, although not as an employee of his court.  Respondent and Doe stayed together at a hotel in the Myrtle Beach area.  The hotel room was a suite and respondent denies any inappropriate sexual conduct with Doe during the seminar.

Doe had been charged with possession of drug paraphernalia in the jurisdiction of Cottageville.  Respondent admits that, in allowing Doe to share his hotel suite, he created an appearance of impropriety that could undermine public confidence in the judiciary. 

In St. George and Cottageville, respondent operated an alternative sentencing program known as the "Judge Michael Evans' Program" or "Adjournment to Dismiss."  Doe was enrolled in respondent's alternative sentencing program in Cottageville; she paid approximately $565.00 to enroll in the program and the funds went to the general fund of the Town of Cottageville. 

Respondent's alternative sentencing programs were not administered or approved by the Solicitor's Office for the Fourteenth Judicial Circuit or First Judicial Circuit.  Respondent admits that he acted in contravention of an order of the Supreme Court of South Carolina in that he operated the programs without the specific approval of the Circuit Solicitors.   

(Mike Frisch)

 

November 8, 2010 in Judicial Ethics and the Courts | Permalink | Comments (2) | TrackBack (0)

The Smiling Turtle

The New York State Commission on Judicial Conduct has ordered the removal of a judge of the Saratoga County Family Court. The commission concluded that the judge had repeatedly locked up litigants while denying the right to counsel and to a hearing. The periods of incarceration ranged from 21 to 268 days.

The judge also made "egregious and inexcusable" comments of a sexual nature to litigants on two occasions. As reported by its press release, the commission noted:

His gratuitous remarks, which were prompted by an innocuous caricature on a litigant's t-shirt, were ribald and replete with sexual innuendo.

The T-shirt at issue had a caricature of a smiling turtle and the caption "cranky but adorable so I'm worth it." Among other comments, the judge said of the shirt "it's very phallic, and it's a penis with a smile on it."

Removal renders him ineligible for future judicial office. He had previously been cautioned for failing to advise litigants of their right to counsel. (Mike Frisch)

November 8, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Sewer Attorney Suspended

The web page of the Ohio Supreme Court reports today the interim suspension of an attorney as a result of a felony conviction. Cleveland.com reported that the attorney had served as counsel to the Northeast Ohio Regional Sewer District and pled guilty to bribery and tax offenses:

...[the attorney] admitted accepting more than $680,000 in bribes from the primary contractor on the district's massive Mill Creek Tunnel sewer project. He also admitted diverting nearly $167,000 in checks payable to the sewer district, using a fraudulent deposit stamp, to accounts [he] controlled.

He faces a likely prison sentence of five years and 10 months to seven years and three months.

The sentencing range, based on federal guidelines, assumes [he] fully cooperates with federal prosecutors in their pursuit of other potential defendants. Even then, U.S. District Judge Dan Aaron Polster will have final say on the length of [his] prison term. Polster also is expected to order Schatz to pay restitution to the sewer district.

As part of his agreement with prosecutors, [he] also pleaded guilty to filing false tax returns from 2003 to 2007. He will have to cooperate with the IRS in determining back taxes owed.

The sewer district oversees sewage and water quality for more than 1 million people in Cleveland and 62 suburbs in Cuyahoga and Summit counties.

The charges against [the attorney] do not name the contractor paying the bribes, but identifies the person as being the president of a Cleveland company belonging to a joint venture. KMM&K was the joint venture hired to construct the bulk of the 3-mile long sewer tunnel at Mill Creek, which runs under Cleveland, Garfield Heights and Cuyahoga Heights.

The joint venture is made up of Kassouf Co., Mole Constructors, Murray Hill Construction and Kenny Construction. Calls were made to each company seeking comment. Only Kenny responded. A spokesman said in an e-mailed response that the Illinois-based company had no knowledge of any alleged improprieties and has contacted the federal prosecutor handling the case and pledged it's cooperation.

The scheme by [the attorney] to collect the bribes involved billing a client for legal services that were never performed and then having the client bill that amount to the president of the only Cleveland-based company that's part of KMM&K, prosecutors said. The description of the contractor matches Robert Kassouf of Kassouf Co.

The client who served as the go-between for the bribes is not identified in the charges other than to say it's a Cleveland-based company that provided the joint venture with a parking lot, machine rental and other things. Julius Ciacci, executive director of the sewer district, identified the client as Harvard Refuse Inc.

(Mike Frisch)

November 8, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unfit To Practice

The Pennsylvania Supreme Court imposed a five-year suspension (as recommended by its Disciplinary Board) for an array of ethical violations in the representation of an elderly client.

The attorney had a friend who rented office space from him prepare a will and related documents under which he became the client's residual beneficiary, with power of attorney, and made him the client's joint-account owner with rights of susvivorship to 90% of her assets.

The board found that the attorney engaged in a prohibited business transaction with the client that was not saved by having his friend involved:

Merely because [the friend] was involved in the actual preparation of the new will does not insulate Respondent from a finding that he engaged in unethical conduct. [The friend] was not truly independent counsel.

Notably, the friend never met with the client prior to preparing the new will as per the attorney's instructions:

Shockingly, [the friend] never spoke to [the client] prior to preparing the will.

The Hearing Committee had rejected the attorney's  testimony as incredible and had proposed a three-year suspension. Disciplinary Counsel supported the three-year suspension. the attorney suggested dismissal or public censure. The board went with five years despite the absence of a prior discipinary record:

Respondent saw an opportunity and took advantage of his elderly client. He has refused to admit any wrongdoing or show remorse, and seems to have little recognition of the implications of his actions. Even though Respomdent has practiced law since 1978 and has an unblemished record, he is unfit to practice law.

(Mike Frisch)

November 8, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)