Saturday, November 20, 2010

Out Of Their League

A New Jersey attorney has been censured for misconduct in the representation of a client for injuries sustained in a bar fight with NBA star Carmelo Anthony. The client told the attorney that he had a videotape "depicting Anthony and another man, who was severely beaten during the fight." Anthony's sports agent contacted the attorney and sought to see and purchase the tape. The attorney consulted counsel and was told that if there were no threats, then the negotiation was "legitimate and legal."

The attorney did not participate in a meeting between the client and an agent in which the client demanded a $3 million payment. He did meet with the agency's attorney and arranged for a settlement. He was arrested in Central Park while waiting for delivery of a $1.25 million settlement check to the client's cousin in the Trump International Hotel.

He was charged with grand larceny and pled to a misdemeanor attempt grand larceny. He cooperated with the prosecution and voluntarily refrained from practice for almost two years.

The Disciplinary Review Board found:

Here, respondent's misconduct was serious. Nevertheless, the record strongly suggests that naivete, inexperience, and a total lack of understanding of his involvement in an extortion plot played a great role in his actions. In a misguided fashion, he unwittingly participated in a matter that turned out to be criminal. He had no actual knowledge of the scheme-he did not attend any meetings in which the sale of the videotape was discussed.

The attorney admitted that he made a " 'horrible' decision to take the case and that he should have withdrawn from it when he saw warning signs." (Mike Frisch)

November 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hammer Time

The New Jersey Disciplinary Review Board has ordered a suspension of three months conditioned on proof of fitness of an attorney who had "left obscene and threatening messages on a former client's answering machine and later threw a hammer through the client's closed living room window." The attorney did not file an answer to the bar complaint.

The underlying case involved the defense of a consumer fraud action. Judgment was entered against the client and no appeal was taken. When the judgment was executed three years later, the client claimed surprise and asserted that the attorney should have appealed.

That evening, the attorney met with the client at the client's home. The attorney "appeared intoxicated and acted in a belligerent manner toward [the client], but left without incident." Three phone messages were left at 2 am the next morning. The hammer throw was an hour later. The client "peered through the broken window just in time to see [the attorney] drive off."

The attorney pled guilty to a petty criminal charge.

in 2008, the attorney reached an agreement in lieu of discipline that included restitution for the window, that he attend AA  meetings and a letter of apology to the client. He failed to report compliance with the conditions but later stated that his alcoholism and depression had prevented him from doing so. The board here rejected charges that his non-compliance constituted a failure to cooperate with ethics authorities or was prejudicial to the administration of justice.

The attorney must submit proof of fitness to practice by a mental health professional approved by the Office of Attorney Ethics. (Mike Frisch)

November 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 19, 2010

False CLE Certification Charged

The Illinois Administrator has filed a complaint alleging that an attorney falsely certified that he had completed online CLE courses (including several on ethics topics). According to the complaint:

Each online course set forth above, required the user to respond to prompts during the course, at approximately ten minute intervals, to insure that the user was actively participating in the course.

On various occasions between July 27, 2009 and July 30, 2009, Respondent did not watch the online courses set forth...above, and Respondent directed a secretary in his office to watch the courses on a laptop computer and respond to the prompts as if he were watching the courses.

At all times alleged in this complaint, Supreme Court Rule 796(a)(2), required that every Illinois attorney subject to the MCLE requirement, certify his or her compliance with the required hours of CLE activity.

...Respondent reported to the MCLE Board that he had completed 20 hours of CLE credit (including 4 hours of professional responsibility credit) during the 2007 to 2009 reporting period. Respondent made the report on the MCLE Board's online reporting system and certified each statement set forth below:

I am the attorney identified at the top of this form.

I certify that the information contained in this certification to the MCLE Board is true and correct.

I have read MCLE Rule 796 of the Supreme Court of Illinois which lists the penalties for submitting an inaccurate or a false certification to the MCLE Board.

Respondent's submission of information and certification to the MCLE Board was false. Respondent knew that the information and certification he submitted to the MCLE Board were false because he did not complete 20 hours of CLE classes during the reporting period and he directed a secretary to complete some of the CLE classes for him.

Irony alert: One of the courses was subtitled "10 Ways to Reduce Your Chances of Being Sued or Disciplined." Another was "At the Crossroads of Compliance: Which Way to Turn?" (Mike Frisch)

November 19, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Windfall

The Nevada Supreme Court affirmed the grant of summary judgment to a law firm defendant because the plaintiff had already achieved a full recovery in a claim against a departed firm partner. The court lays out the facts:

Elyousef, a client of the O’Reilly firm, entered into a business transaction with his attorney, C. Dean Homayouni, who was employed by O’Reilly during the early stages of the transaction.  The transaction resulted in Homayouni obtaining Elyousef’s interest in Nevada Oil and Land Development, LLC (NOLD), which in turn owns a gas station in Las Vegas.  Homayouni left O’Reilly because the law firm opposed the transaction due to a conflict of interest between Homayouni and the firm’s client, Elyousef.

            When the business relationship soured, Homayouni sued Elyousef.  Elyousef filed a counterclaim against Homayouni, alleging that Homayouni negligently caused him to lose his interest in NOLD.  The district court awarded Elyousef $150,000 in damages plus $225,631.22 in costs and fees.  Homayouni subsequently settled with Elyousef for $50,000 plus the return of his interest in NOLD.  Elyousef then sued O’Reilly for breach of fiduciary duty, negligence and legal malpractice, negligent supervision, respondeat superior, breach of contract, and breach of implied covenant of good faith and fair dealing.  The district court granted summary judgment in O’Reilly’s favor, concluding that the doctrines of double recovery and issue preclusion barred Elyousef’s ability to recover from O’Reilly.  On appeal, Elyousef maintains that neither doctrine bars him from further recovery.

(Mike Frisch)

November 19, 2010 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

A Son For A Client

The Iowa Supreme Court has imposed a 60-day suspension in a matter that involves a 74 year old attorney who has practiced law for 45 years. The court accepted as binding a stipulation of facts but rejected the 30 day suspension recommended by its disciplinary board.

The attorney's son was charged with sex offenses against the son's stepdaughter. The attorney arranged for his surrender to authorities. Rather than surrender, the son kidnapped his spouse and biological daughter. The son was later arrested and incarcerated.

The spouse obtained a no contact order against the son and instituted divorce proceedings. The attorney represented the son. The spouse also had counsel.

The attorney met with the spouse (without the knowledge or permission of her counsel) and gave her a communication from the son in violation of the no contact order. He was charged with witness tampering but that charge was dismissed. He was then charged with suborning perjury and aiding the violation of the no contact order. He was acquitted of the perjury but convicted of the no contact violation, a misdemeanor offense.

At the meeting with the spouse, the attorney had discussed conditions that might lead to a favorable settlement of the divorce case. This discussion violated the rule against offering an inducement prohibited by law. One aggravating factor was a prior reprimand for dishonesty.

This link from TheMessenger relates details about the son's trial. (Mike Frisch)

November 19, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Two Estate Plans, No Privity

The New York Appellate Division for the First Judicial Department affirmed the dismissal of claims brought against a law firm by a client for whom the firm had done estate planning. The claims arose from the firm's representation of her husband with respect to his estate plan. The court found no privity with respect to the husband's estate planning and that any damages were grossly speculative:

In New York it is well established that absent fraud, collusion, malicious acts or similar circumstances, the draftsperson of a will or codicil is not liable to the beneficiaries or other third parties not in privity who might be harmed by his or her professional negligence...Defendants demonstrated that while they represented plaintiff in her estate planning and other matters, she was not in privity with them with regard to her late husband's estate planning. The absence of such privity remains a bar against her estate malpractice claims...

Plaintiff's subjective belief that she had engaged in joint estate planning or was jointly represented with her late husband is insufficient to establish such privity... Contrary to plaintiff's contention, this case is not akin to Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo (259 AD2d 282 [1999]), in which the plaintiff beneficiary was intimately involved in the estate planning and relied upon the attorney's advice in the course of establishing a sham corporation intended to avoid estate taxes. Indeed, plaintiff herein was never involved in the planning of the estate and did not rely on any advice related thereto that might sustain her claim.

Plaintiff cannot bring her claim pursuant to the "approaching privity" standard outlined in Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood (80 NY2d 377, 383 [1992]). There is no evidence that defendants knew and intended that their advice to plaintiff's late husband was aimed at affecting plaintiff's conduct or was made to induce her to act. Nor is there evidence that plaintiff relied upon defendants' advice to her detriment. Significantly, the standard is not satisfied when the third party was only "incidentally or collaterally" affected by the advice (see id.).

In any event, plaintiff cannot recover damages that are grossly speculative (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1999], lv denied 94 NY2d 759 [2000]). Defendants demonstrated that plaintiff could not satisfy the causation element of her malpractice claim because she could not prove that her inheritance would have increased if defendants had advised her late husband about a separation agreement that required him to leave half of his probated estate to his son. While plaintiff suggests various things her late husband could have done to ensure her more money than she eventually received, she cannot prove precisely what he would have done had he received different advice. Therefore, she cannot establish that but for defendants' failure to advise her late husband of the separation agreement, she would have received more money. In this regard, we note that plaintiff's late husband had the right to reduce her inheritance at any point in time.

(Mike Frisch)

November 19, 2010 in Clients | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

No Recall For New Jersey Senator

The New Jersey Supreme Court has held that the petition to recall United States Senator Robert Menendez is unconstitutional. The court reversed the judgment of the Appellate Division and vacated an order to the Secretary of State.

Two justices dissented, "expressing the view that because there is no present needto reach the constitutional question urged upon the Court and, in any event, this appeal raises nothing unconstitutional about New Jersey's recall election provisions, the recall process should go forward." (Mike Frisch)

November 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Black Lung

The West Virginia Supreme Court of Appeals has rejected a hearing panel subcommittee's recommendation that ethics charges against an attorney defending a black lung case be dismissed. The court found that the attorney's conduct involved altering evidence in an attempt tp perpetrate a fraud on a tribunal. The court imposed a one-year suspension with conditions.

The attorney had arranged for a medical exam of the claimant. He removed a summary from the doctor's report and submitted the remaining portions to opposing counsel and the tribunal considering the matter. The court concluded:

[The attorney] has conceded that he purposefully removed the narrative portion of [the doctor's] report before providing the report to [the] ALJ...and [opposing counsel, thus, the absence of the narrative report in the document provided to [them] was clearly not due to inadvertence or mistake. Furthermore, insofar as we have found that the withheld portion of the report had evidentiary value, we have little difficulty concluding that [the attorney's] conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus, amounted to a violation of Rules 8.4(c) and (d).

The court rejected the contention that the disciplinary complaint (which was filed by a federal district court) was untimely under the rule that requires a complainant to bring a matter to disciplinary counsel's attention within two years after the complainant knows or should know of the basis to complain. (Mike Frisch)

 

November 18, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ten Days But Not Really

A Florida attorney was suspended on a reciprocal basis in the District of Columbia for neglect and failure to communicate with a client. The attorney had responded to an order to show cause and argued against discipline identical to that imposed in Florida.

The District of Columbia Court of Appeals rejected the attorney's claims and ordered a 10 day suspension.

I believe that this is the shortest suspension ever imposed in the District, as the minimum suspension in an original case has been 30 days. The actual suspension will last much longer, as the attorney was suspended on an interim basis in July and failed to file the required affidavit. Thus, the ten days has not yet begun to run. (Mike Frisch)

November 18, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 17, 2010

Paint Job Leads To Proposed Suspension

The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that an attorney had engaged in misconduct by misusing her position as a New Orleans Assistant District Attorney to threaten and coerce two people to pay a disputed civil debt. The efforts were made to have a payment made to a friend of the attorney's father for house painting services.

The board did not agree with the committee's proposed sanction of a public reprimand. Rather, the recommendation is for a six-month suspension with all but 30 days stayed. (Mike Frisch)

November 17, 2010 | Permalink | Comments (0) | TrackBack (0)

"Wholly Unpersuaded"

The Utah Supreme Court affirmed the denial of a motion to disqualify a judge in civil litigation based on an allegation that the judge had been exposed to confidential information from arbitration. The court concluded that the motion was untimely:

[The moving party's] counsel urges us to find that its disqualification motion was timely, despite being filed almost three years into the litigation, after enough proceedings had occured to generate over forty volumes of record, and over sixteen months after [the relied on Utah decision] was published. [The moving party] asserts that its motion was timely because [its] counsel filed it within twenty days of attending a Continuing Legal Education seminar where he learned of the legal basis for filing the motion. We are wholly unpersuaded by this argument.

The litigation involves a dispute over the construction of a baseball field. (Mike Frisch)

November 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Consider Yourself Admonished

The Arizona Disciplinary Commission has imposed reciprocal discipline in a matter from Florida. The attorney had been admonished for minor misconduct fthat involved paying the brother of an opposing party "to reveal certain information regarding his brother." The witness was in "economic distress" and had "asked to be paid for his trouble."

The admonishment in Florida is written into the disposition:

Mr. [Attorney], your actions have discredited the legal profession of the State of Florida. Such conduct cannot be tolerated by your fellow lawyers and should not be tolerated by you. Pride in your profession demands that you not violate the Rules of Professional Conduct again. If you do, your present misconduct will be considered in future disciplinary proceedings.

Arizona will require the attorney to attend The Florida Bar's Ethics School and its Professionalism Workshop, as was ordered in the Florida disposition. (Mike Frisch)

November 17, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 16, 2010

Don't Leave Files At The Xerox Machine

An Illinois Hearing Board has issued a report and recommendation in a case alleging three counts of misconduct against a former public defender. The attorney had served as a public defender from 1992 to April 2009, rising to a senior position at the time of the alleged ethics violations.

Two of the charges involved allegations that he had misrepresented himself as a member of the state's attorney office. The hearing board found that these charges had not been proven by clear and convincing evidence.

The third charge was a matter involving an allegation that he had copied and used materials mistakenly left at a xerox machine by another attorney who was serving as a guardian ad litem in a case where he represented a parent.  The GAL had taken the copies but left the originals on the machine.

The office had a policy that prohibited access to confidential information when public defenders represented adverse interests in such matters. The attorney openly used the materials (which he would have later gotten in discovery) in court on behalf of his client. He was confronted by his colleagues and attempted to justify his use of the materials. The prosecutor's office notified the ARDC.

The hearing board found:

The evidence established that the Lake County Public Defender’s Office has a well-established policy in place in cases such as this which involve the office’s dual representation of both parents and children in abuse and neglect matters. That policy is designed to address the serious ethical concerns inherent in its representation of adverse parties in these cases. The evidence showed that potential problems associated with this practice, as well as the ethical issues involved, are well-known. As [the Public Defender] testified, these issues have been the subject of various court decisions as well as ethics opinions which have considered the propriety of such arrangements...ISBA Opinion 91-17 specifically addresses the particular problems associated with arrangements similar to the one at issue here, which involves public defenders who share a common office and support staff representing both parents and children in abuse and neglect matters.

In response to these concerns, the Lake County Public Defender’s Office has implemented various measures that are specifically designed to deal with these ethical issues. One matter of particular concern is the potential for improper exchange or sharing of information between the attorneys on opposite sides of the case as a result of the shared use of office space, equipment, and support staff. In order to address this issue, the office has a policy which prohibits the parent attorneys and GAL attorneys from sharing information or having access to each other’s files. The office suite has also been specifically set up and designed with this issue in mind, so that the parent attorneys and the GAL attorneys have their offices located at the opposite ends of the suite. The two different types of attorneys also report to different immediate supervisors and store their files separately, either in their own offices or their own file cabinet.

The evidence further established that Respondent was clearly aware of the existence of this policy as well as the significant ethical concerns underlying it. Although the policy was not in writing, it is clear from all of the evidence presented that is was well-known and understood by everyone who worked in the office. With the possible exception of Respondent, this was supported by the testimony of every witness who testified at the hearing, including Respondent’s own character witness. The existence of the policy was also further reinforced through these various additional means, including the physical layout of the office space and the delineation of supervisory responsibilities. Respondent had not only worked in the Public Defender’s office for many years, he was supervisor of the Juvenile Division. As such, he was actually one of the individuals responsible for ensuring the policy was being followed. Based on all of the evidence presented, we believe that there can be no doubt that Respondent both knew about the policy and knew that the policy prohibited him from having access to the GAL attorneys files and other materials in cases of this nature.

In light of the foregoing, we further find that Respondent’s actions under the circumstances were not only improper and in violation of established office policy, they were also dishonest. It is clear from the evidence that Respondent knew when he came across the documents on the copier related to the Jaden G. matter that they did not belong to him. It is also evident that he knew that they belonged to the GAL and were not intended for his use. Respondent admitted as much when he said that he was angered by his realization that the GAL had received the records that he had been waiting for and they had not yet been provided to him. It is also clear that he knew that established office policy prohibited him from having access to the materials such as this, which belonged to his adversary in the case. While he may have initially come across the materials innocently, he had to know that he had no right to take or copy the documents for himself. For him to do so under all of these circumstances was clearly dishonest.

We also find it significant that Respondent failed, upon finding the documents, to take any real steps to investigate the matter further before deciding to take and copy the materials. Although he apparently left a message for [the prosecutor], he did not specifically mention his discovery of the documents on the copier. Nor did he research the issue or attempt to contact [the GAL] or [the Public Defender] by phone, even though he had both of their cell phone numbers. Moreover, he apparently did not even mention the matter to [the GAL] at the office the next morning before they both went to court. We believe that Respondent’s failure to undertake any further inquiry regarding the matter or to even notify anyone involved of his actions is further evidence that he knew that what he was doing was wrong.

Respondent suggested at the hearing that it was not improper for him to take the documents because he needed them to prepare for the hearing, he had a right to receive them anyway, and they should have been provided to him in discovery. He pointed out that the judge confirmed this the next morning when he determined that was entitled to receive all three pages.

He also noted that nothing in the materials was privileged or confidential and that his actions did not result in the breach of any client confidentiality.

As to sanction:

Respondent’s misconduct here in improperly taking and copying documents that did not belong to him is clearly serious, particularly because it involves dishonesty. Through his actions he violated a well-known office policy that was specifically implemented to address serious ethical concerns. His behavior is particularly inexcusable in light of his role as a supervisor as well as his extensive experience in the office. An attorney of Respondent’s stature should set an example to others with respect to proper and ethical behavior, not bend or break the rules himself.

While we believe that his actions were clearly improper, we also note that he was not motivated by any personal or financial gain. Rather, as even the Administrator conceded, he was driven by his desire to aggressively and zealously represent the best interests of his clients. We also recognize that he had an honest belief that he was entitled to receive the documents in order to prepare his case and that they should have been produced to him through discovery. In addition, we note that he disclosed his actions promptly in court the next day and made no attempt to lie about the matter or to conceal his behavior. Further, there is no evidence that his misconduct caused any actual harm, either to his client, the other parties in the case, or the public. Nor did it result in the breach of any client confidentiality. While these considerations clearly do not negate or excuse Respondent’s actions, they do mitigate to some extent the seriousness of his wrongdoing.

There was also other significant mitigating evidence presented here. The evidence demonstrated that Respondent has devoted his entire legal career to public service as an attorney with the Lake County Public Defender’s Office. Much of this time has been spent working in the Juvenile Division on delinquency and abuse and neglect matters, an undoubtedly challenging and worthwhile area of practice. He has also been involved in various charitable and other volunteer activities, both within the legal profession and the community at large. He has authored a number of published articles on juvenile and other criminal law matters and has participated in various legal seminars geared toward educating and improving the profession. He spent three years mentoring a child through the Big Brothers and Big Sisters program and received an award for his efforts in this regard. He has also spent a considerable amount of time volunteering at local schools, with the Boy Scouts, and for an organization that focuses on juvenile delinquency issues. Respondent’s volunteer and charitable activities are significant and commendable.

We also consider in mitigation that Respondent has not been the subject of any prior disciplinary action throughout the course of his 18 years in practice. Further, he acknowledged at the hearing that he exercised poor judgment in the way that he handled the matter and expressed regret and remorse. He also presented several character witnesses who attested to his overall integrity and favorable reputation for honesty.

One member would find that one of the misrepresentations had been proven but not the file copying charges. (Mike Frisch)

November 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Inside Information

The New York Appellate Division for the First Judicial Department has disbarred an attorney as a result of a criminal conviction for conspiracy to commit securities fraud. The court described the admitted facts:

During his plea allocution respondent admitted that between approximately June 2007 and May 2008, while he was employed at a Manhattan law firm, he and another firm attorney accessed confidential information about mergers and acquisitions, unbeknownst to other attorneys, and then knowingly and voluntarily passed the confidential information to another attorney, not employed by the same firm, who subsequently provided the confidential information to a trader. The confidential information was then used by the trader to make stock purchases in publicly traded companies. Respondent was paid in cash for the information.

The conviction led to automatic disbarment under New York rules.

Details about the criminal case are available at this link from Business Insider Law Review. (Mike Frisch)

November 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Year And A (Very Long) Day

The Pennsylvania Supreme Court has granted the reinstatement petition of an attorney suspended for a year and a day in March 1992.

After the suspension, the petitioner worked at a warehouse and as a janitor prior to obtaining employment with the IRS in 2001. He now works as a tax law specialist with the Service, a position that does not require him to have a law license.

The petitioner has been arrested for DUI three times but has been sober for over ten years. He also obtained a master's degree in taxation in 2007.

The Office of Disciplinary Counsel did not oppose the petition. (Mike Frisch)

November 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Friend Than Lawyer

The Pennsylvania Supreme Court approved an agreed public censure in a case where the attorney  had drafted a will for a "frail, elderly,  and childless widow" that made him executor and beneficiary of her estate. The attorney knew better-- when the client made a similar request in 1991, the attorney had cautioned her to reconsider and secured the services of another attorney to draft the will.

He took no such precautions in the 2008 will from which he benefitted and litigated the validity of that will despite problems with its execution and "ample time" to advise her to consult independent counsel.

He indicated that he was more friend than lawyer with respect to the 2008 will. (Mike Frisch)

November 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 15, 2010

Head Count

An Illinois Hearing Board has recommended a stayed six-month suspension with one year of probation in a matter involving the misuse of entrusted funds. The board found that the absence of a dishonest intent was a mitigating factor:

There is considerable mitigation in this case. The fact that the Respondent did not act with a dishonest intent or invidious motive is a significant mitigating factor. Also, the Respondent admitted the facts underlying his misconduct, acknowledged he misappropriated [the client's] funds, and accepted responsibility for the misconduct. His misconduct occurred in regard to only one client matter. The Respondent has been licensed to practice law since 1993 and has not been previously disciplined. Additionally, a judge and four attorneys gave favorable character testimony on behalf of the Respondent. The misconduct was not committed at a time when the Respondent was having financial difficulties. Instead, the Respondent showed that he had adequate funds in other accounts to repay the amount converted. See Mayster, 99 CH 59 (Review Bd. at 9-10). Finally, the Respondent attended a course presented by the ARDC, and he testified that he has implemented record keeping procedures in his office.

Although the Respondent acted without a dishonest intent, it is apparent that his misconduct was the direct result of his continuing failure to maintain adequate records for his trust account and for his client matters. The Respondent became a solo practitioner and opened a client trust account in the year 2000. However, he never reconciled his trust account for more than eight years. He began reconciling the account only after he became aware of the ARDC investigation of him in July 2008. Even though he received monthly bank statements for his trust account, he did not review them. He kept no ledger for his trust account. Rather, the Respondent testified that his "system" for keeping track of the funds in his trust account was "in [his] head," his "memory" or a "note or something."(Tr. 55-56, 63). He had no records that would enable him to subsequently determine to which case or client transfers from his trust account were attributable. The Respondent did not attend any course or obtain any information in regard to properly maintaining trust account records until after the Complaint was filed in this matter. Furthermore, the Respondent did not have adequate records of client matters, as shown by the fact that [the client's] case, including the court order to deposit her funds with the Circuit Clerk, "just slipped off [his] radar." (Tr. 48).

(Mike Frisch)

November 15, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Party's Over

The Illinois Supreme Court imposed suspensions of 30 and 60 days in a matter involving findings of sexual misconduct against two big law associates who engaged in the misconduct while on a Wisconsin trip to the summer home of the family of one of the attorneys. The attorneys met a woman at a tavern after a day of drinking. The violations took place on a stop en route to the summer home. The coverage of the case from Abovethelaw is linked here.

The suspensions were in line with the sanctions proposed by the Hearing Board. Both attorneys had entered pleas to criminal charges arising out of the misconduct.

Our prior coverage is linked here. (Mike Frisch)

November 15, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Overbilling Results In 90 Day Suspension

Last Friday, the Illinois Supreme Court adopted a proposed 90 day suspensdion of a former Holland & Knight attorney based on a complaint of false billing practices. In March 2010, Chicagobusiness.com reported on a possible deal in the case:

 Former Holland & Knight LLP partner Edward Ryan and the Illinois Attorney Registration and Disciplinary Commission are considering an agreement on discipline for his alleged falsification of billing invoices, the state board said.

At a hearing Monday, attorneys for the commission and Mr. Ryan's lawyer, Arthur Friedman, said they are discussing whether the case can be resolved by Mr. Ryan agreeing to disciplinary terms, said a spokesman for the commission.

The worst sanction possible is disbarment, but that's unlikely to happen if the two sides reach an agreement on discipline, the spokesman said.

Mr. Ryan, a commercial litigator in Holland & Knight's Chicago office, was charged in a November 2008 complaint with falsifying billing for work he provided to developer Pinnacle Corp. in a copyright infringement case over a two-year period from August 2002 to December 2004. The case was being litigated in U.S. District Court in Minneapolis. The commission's complaint didn't specify the amount of overbilling.

Mr. Friedman, a lawyer with Miller Shakman & Beem in Chicago, declined to comment on whether Mr. Ryan has landed at a new firm since he left Holland & Knight.

The parties will meet again May 4, at which time it should be clear whether a trial is necessary, the commission spokesman said.

The court's order provides:

The petition by the Administrator of the Attorney Registration and Disciplinary Commission to impose discipline on consent pursuant to Supreme Court Rule 762(b) is allowed, and respondent Edward Francis Ryan is suspended from the practice of law for ninety (90) days.

The court's order concludes the bar matter. (Mike Frisch)

November 15, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Brave New World

The National Organization of Bar Counsel has posted the final recommendations of the Critical Issues Summit entitled Equipping Our Lawyers: Law School education, Continuing Legal education, and Legal Practice in the 21st Century. The summit was sponsored by ALI-ABA Continuing Professional Education and the Association for Continuing Legal Education.

The mission of the Summit (held in October 2009) was to "study and respond to the challenges of equipping lawyers to practice in a rapidly changing world. (Mike Frisch)

November 15, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)