November 27, 2010
The lawyer as juror and the depressed lawyer, not necessarily the same
Over at Minor Wisdom, Ray Ward is starting to share his view from the jury voir dire. More thoughts to come, but the money quote so far is that "while lawyers should not be immune from jury duty, we really should get CLE credit for it." Also, his blog reminded me of his excellent and serious post five years ago at JD Underground on lawyers and depression, Depression, The Lawyers' Epidemic: How You Can Recognize the Signs. [Alan Childress]
November 24, 2010
The New Hampshire Supreme Court affirmed the dismissal of a negligence action against a golf course brought by a golfer who had been seriously injured when a ball he hit struck a yardage marker approximately 17-20 yards in front of him. The ball came back at him and hit him in the eye.
The court concluded that obstacles and "errant balls" are a risk that a golfer assumes when playing a round. (Mike Frisch)
Confidentiality Violation Draws Suspension
The Colorado Presiding Disciplinary Judge has accepted an agreed disposition and imposed an eighteen-month suspension with all but nine months stayed and probation for two years for a breach of confidentiality in the representation of a criminal defendant:
Respondent and his co-counsel represented a client charged with multiple felony counts for stealing $1.2 million from her employer. During two in camera conferences held without their client present, Respondent and his co-counsel made statements to the prosecutor and the judge related to their disagreement with their client’s decision to reject a plea offer and other statements to preserve their own interests and in-turn, failed to maintain the confidences of their client.
"The Not Always Clear Line..."
A majority of the Illinois Review Board has rejected some findings and a proposed suspension of a Hearing Board and has recommended a public censure of an attorney for misconduct in connection with the designation of medical experts in civil litigation. One of his "doctors" had lost his license in the wake of a criminal conviction.
The majority found that the the circumstances were such that suspension is not appropriate. Then, this "postscript" turns the tables on the bar prosecutor:
This case involves the not always clear line to be drawn between allowable, but imperfect advocacy and professional misconduct. In courtrooms all across America every day, lawyers make mistakes, they are sometimes careless and sloppy, and they push the envelope, so to speak. As advocates, they are often less than objective and they attempt to gain every advantage from real or perceived weaknesses in the positions of their adversaries.
Our disciplinary system cannot be so unforgiving that every misstatement of a lawyer offered in the heat of courtroom battle ends up as an ARDC matter. One need look no further than the disciplinary proceedings in this case to appreciate the problem. The Administrator's trial counsel asked [the attorney] whether his instanter motion for leave to file the unsigned opinion letters had been granted, and [he] responded, "No." The following then transpired:
Q. But that's contrary to what Judge Frobish wrote on the docket sheet where it says on Page 2 of Administrator's Exhibit No. 1 on the 3/22/05 date, the third paragraph, "[the attorney] files this day the motion for leave to file the 5/2-622 affidavits and makes three separate filings containing the attorney's affidavit and an unsigned opinion letter," correct?
A. That's exactly what the half sheet says, yes.
Thereafter, and presumably on the basis of the foregoing evidence, the Administrator's counsel successfully argued to the Hearing Board that the affidavits and opinion letters had been filed. But as this report shows, neither the docket sheet, nor transcript, indicates that the motion was granted. The filings referenced in the docket sheet were attachments or accompanying documents to the instanter motion, which is usual practice for any proposed filing.
Should not the Administrator's counsel have known this and conceded that the affidavits were not filed pursuant to court leave? This fact was arguably important because it corroborated [the attorney's] defense that, once in the courtroom, he made no attempt to mislead the judge with the affidavits.
Similarly, the Administrator's counsel seized upon the "One has not" paragraph to claim that [the attorney] represented to Judge Frobish that one of his testifying experts had signed a letter opinion. She did it during questioning of [the attorney] and again in final argument. As noted, this claim on her part was a skewed reading of the record because 8 lines later in the transcript, probably within 20 seconds at the hearing, [the attorney] corrected the misstatement by telling the judge that only his consultant, and neither of the testifying experts, had signed a letter opinion.
And she was apparently successful in her argument because the Hearing Board quoted only the "One has not" paragraph in making its finding that [the attorney] made false and misleading statements. Again, should not counsel have carefully explained to the Hearing Board that [the attorney]corrected his misstatement, and that he had actually represented to the judge that only his consultant had signed a letter opinion?
Yet, if the Administrator's counsel was to be subject to a disciplinary complaint for the foregoing conduct, we might as well shut down America's courtrooms. No lawyer would be immune from a similar complaint. In short, our adversary system encourages zealous, but not always perfect, advocacy. In our view, most of the charges against Respondent, like the examples above, were instances of imperfect advocacy — not professional misconduct. (citations to record omitted)
A dissent explains the key facts and would favor a suspension:
At the hearing [in the underlying case], the Respondent in presenting the affidavits also made statements that were intentionally misleading. He told the Court the board certified physician in internal medicine with the specialty in nephrology had reviewed the records and was the one who drafted the letter attached to the Respondent's affidavits. The Hearing Board found that this statement was "a statement of material fact to a tribunal which Respondent knew or should have known was false in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct." In his testimony at his disciplinary hearing, the Respondent acknowledged that Dr. Leslie was the only physician with an expertise in internal medicine and nephrology with whom he had ever discussed the case. He also acknowledged that as of [the hearing date], Dr. Leslie had never reviewed any medical records nor issued a written report in support of the case's merit. He also acknowledged that medical records which Lerner had said should be obtained, never had been.
Finally, the statement Respondent made when questioned by Judge Frobish at the...hearing that "I do have a signed letter of consultant" was not a truthful statement, as the majority suggests, because the full statement was "I do have a signed opinion letter of a consultant who is an internal medicine physician." He did not and he knew he did not.
The majority notes that the affidavits were not actually "filed." However, they were clearly submitted to the Court to advance the plaintiff's position. The question is were they false and were they presented with the intent to mislead the Court. The Hearing Board concluded they were and I do not see a basis for concluding otherwise. To this point, the appellate court in affirming the dismissal in the Crull case reached the conclusion that the Respondent was trying to hide Lerner's identity and lack of qualifications. Crull, 388 Ill.App.3d at 1046, 904 N.E.2d at 1191. Regrettably, it is obvious what he was doing and why.
Because I have reached a different conclusion about the Hearing Board's findings, I cannot join in the recommendation of a censure as the appropriate sanction. In other cases, the Supreme Court has suspended lawyers for misconduct involving false and misleading statements to a court.
November 23, 2010
Jogging With Judge Unethical
The Florida Judical Ethics Advisory Committee has opined on a subject that has long fascinated legal ethics scholars. Here is the result:
Whether a judge may allow juveniles to perform their community service hours by participating in a jogging program with him.
ANSWER: No. Such an action, even if well-intentioned, reasonably could place the judge in situations undermining the impartiality of the judge’s judicial office.
The inquiring judge is assigned to a juvenile division in which the judge sometimes orders juveniles to perform community service hours as a condition of probation. The judge wants to create a program allowing juveniles to perform their community service hours by jogging with the judge at a school near the juvenile courthouse. The judge states that the program would be optional, and that law enforcement and juvenile probation officers would be present to certify the juveniles’ presence so that the judge would not become a potential witness if an issue arises about a juvenile’s involvement in the program. The judge would not engage in conversation with the juveniles about their cases. The judge further states that if any case raises conflict issues, the judge would enter an order of recusal.
The judge wishes to create this program to serve juveniles in several ways: curb their delinquency; improve their health; give them a more positive self-image; and provide them with positive role models.
It appears that the judge’s desire to create this program is well-intentioned. However, the judge’s participation in such a program likely would violate Canons 2A, 2B, 3B(7), and 5A(1), (2), (5) & (6) of the Code of Judicial Conduct...
November 22, 2010
The Very Definition of Unjust Enrichment
The Louisiana Supreme Court has disbarred a former district judge of the Parish of Caddo as a result of a racketeering conviction. The judge had used his judicial office to enrich himself by, as the indictment alleged and a jury found, "in return for cash and other things of value, [the judge] made himself available to quickly set bonds, recall arrest warrants, and remove probation holds for individuals who had business in his court."
He appealed the conviction to the Fifth Circuit. The Supreme Court denied certiorari.
The judge resigned his judicial office and resumed his status as a lawyer. He was sentenced to ten years imprisonment. The disbarment is permanent. (Mike Frisch)
Former Greenberg Traurig Attorney Disbarred In Georgia
After rejecting his prior proposed consent dispositions, the Supreme Court of Georgia accepted an attorney's voluntary license surrender, which is "tantamount to disbarment."
The attorney had been employed at Greenberg Traurig and had billed nearly $500,000 in false invoices. The Atlanta Bankrutcy News reported the court's earlier decisions to reject a sanction less than disbarment:
Between 2003 and 2009, [the attorney] used the name of an independent investigator when billing bankruptcy clients but he performed the services himself out of the firm's Atlanta office. He also performed title examinations and other services under two additional fake names.
Greenberg promptly terminated his employment upon hearing about the scheme and reported him to the Georgia Bar.
Michael Shaw proposed a law license suspension of between six months and a year a few months ago but was rejected by the Georgia Supreme Court. His second request was for a two-to-four-year suspension but also was rejected.
Associate Justice David Nahmias wagged his finger at both Michael Shaw and the State Bar of Georgia for requesting such a light sentence, pointing out that he only stopped when he got caught:
"In my view, Michael J.C. Shaw is fortunate not to be incarcerated in a state or federal prison for the half-million-dollar fraud he perpetrated against his employer, along with related crimes such as identity theft and misuse of someone else's social security number."
In his defense, Michael Shaw said he was going through some difficult personal issues, including his claim he had trouble dealing with the deaths of his grandparents and his wife's miscarriage. He also said he believed the $526,922 in restitution he repaid Greenberg should be considered.
Paula Frederick, the Georgia Bar's general counsel, said anything short of disbarment (permanent revocation of his law license) would be unacceptable.