December 3, 2010
The New Jersey Disciplinary Review Board has imposed a reprimand of an attorney who had failed to diligently handle a series of immigration matters undertaken for a family of clients.
Part of the problem was the the attorney's office "repeatedly sent documents to an incorrect address." The clients lived at 1468 North Olden. The documents were sent to 1486. The block ended at 1470. Misaddressed mail sometimes reached the clients; sometimes not.
The board rejected the suggestion that the clients were at fault:
We found not credible the testimony of respondent's secretary...that the [clients] had given the wrong address and that they had been confused about their own house number.
The clients sought help for a son who came to the United States in December 2005. The board recounts the testimony of the husband and wife clients:
[The wife] became concerned about the absence of progress in [the son's] matter. Upon calling the respondent's office, she was told to be patient. At one point, according to [the wife], respondent told her that he had 2,000 clients and that, because he could not oversee everyone's paperwork, she would have to monitor her own documents. [The husband], too, claimed that he had contacted respondent, at some point, to obtain information about the status of the immigration applications and had also been told by respondent that respondent had 2,000 clients and that [the husband] would have to monitor his own case.
The board rejected charges of failure to supervise staff. (Mike Frisch)
Representing While Intoxicated Draws Suspension
An Indiana attorney was suspended for six months without automatic reinstatement as a result of an incident that took place in December 2009. The attorney "appeared at the Child Advocacy Center for a police interview with a juvenile client" and pled guilty to charges of public intoxication at that time.
He had five prior driving while intoxicated convictions and had failed to notify disciplinary authorities of the last three. In mitigation, he was cooperative, has sought treatment and is in an aftercare program and voluntarily terminated his private practice.
The Indiana Supreme Court approved a conditional agreement for discipline in the matter. (Mike Frisch)
Loan From Father
The Florida Supreme Court has imposed a public reprimand and a $5,000 fine on a judge for misconduct in a campaign for a circuit court judgeship. The judge had listing a campaign contribution as a loan from herself when it in fact was from her father. The father's contribution had violated campaign contribution limits. The judge filed an amended form shortly after the election.
The court concluded that the misconduct was less serious than in two prior cases where more severe sanctions were imposed. (Mike Frisch)
December 1, 2010
Where Have You Gone, Joe DiMaggio?
The California Bar Journal reports a recent disciplinary matter:
[An attorney] was suspended for three years, stayed, actually suspended for two years and until the State Bar Court grants a motion to terminate her suspension and she proves her rehabilitation, and she was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect March 24, 2010.
In a default proceeding, the bar court found that [the attorney] committed multiple acts of misconduct in two client matters and a trust account matter, including failing to deposit client funds in a trust account, avoid adverse interests or return client property, and she engaged in the unauthorized practice of law, charged an illegal fee, commingled funds and committed acts of moral turpitude.
While suspended in 2005, [the attorney] continued to represent an existing client with matters arising from her special needs trust and other legal matters. She deposited the proceeds ($10,295.89) from the life insurance policy on the client’s son in a non-client trust account. [She] also collected fees for the work she did while suspended.
She also worked on, and billed for, a divorce case. The client paid $2,500 of a $3,500 nonrefundable retainer fee and as collateral for the balance, allowed [the attorney] to hold a South African gold coin, a silver bar and a Joe DiMaggio baseball card. When he paid the balance and asked for the return of his property [she] did not give back the items. In fact, in a letter to the client’s new lawyer, she said she “cashed in” the coin and silver bar. She said she was keeping the baseball card until the client paid her fees. She billed him a total of $7,250 for legal work, all done while she was suspended.
[The attorney] never put in writing the terms of taking a security interest in her client’s property and did not advise him to seek independent counsel. The client also did not consent in writing to the collateral arrangements with [the attorney], who eventually returned the baseball card.
[The attorney] also wrote checks against insufficient funds in her client trust account to pay personal and/or business expenses.
She was privately reproved in 2005 for failing to perform legal services competently or cooperate with the bar’s investigation.
Attorney Disbarred For, Among Other Things, Assault On His Own Father
The Louisiana Supreme Court disbarred an attorney who was charged with three counts of misconduct.
One set of charge arose out of the search of the attorney's law office and seizure of his computer. The seizure led to charges of drug possession, falsifying a medical report and forgery of medical documents. The criminal charges were dropped in exchange for his agreement to withdraw from practice for nine months.
The second set of charges involved an overdrawn trust account. His ability to respond to the charges was impaired by his incarceration.
The third set of charges involved his attempt to take a two gallon can of gasoline from his father's truck. The father objected and the attorney twice pushed him to the ground. As a result, the father suffered a broken finger that required surgery.
Two justices dissented and would impose permanent disbarment. (Mike Frisch)
One Death, One Disbarment Recommended
A Louisiana Disciplinary Committee has recommended the disbarment of an attorney who shot and killed the owner of a bar on the outskirts of Benton, Louisiana. The attorney claimed self-defense but pleaded guilty to manslaughter. He was sentenced to a suspended term of ten years at hard labor. The sentence was vacated and the attorney withdrew his guilty plea. The charges were eventually dropped.
The shooting took place on Thanksgiving Day 2004. The attorney and the victim (also a suspended lawyer) had known each other for 35 years and were best friends.
The committee concluded that the evidence presented in the bar hearing failed to establish that the attorney had acted in self-defense. The victim was unarmed and the lawyer "always carried [his] gun with him when he went for walks, 'for the snakes.' " The gun had a round in the chamber with the safety off. The attorney was going to meet the victim "knowing [the victim] was angry at him." This amounted to gross negligence.
The attorney had been the subject of prior discipline for borrowing and failing to repay the settlement proceeds of a worker's compensation claim. (Mike Frisch)
Fourth Sanction Is Disbarment
The California State Bar Court has recommended the disbarment of an attorney who had been the subject of three prior disciplinary proceedings. In the present matter, he had been convicted of conspiracy to obstruct justice, which is a moral turpitude misedemeanor. He had failed to report the conviction to the State Bar.
The court rejected the suggestion that the disbarment standard requires a "common thread or repetitive pattern of misconduct in [the attorney's] four discipline records." The prior discipline, present conviction and absence of compelling mitigation warrants disbarment. (Mike Frisch)
Let The Sunshine In
From the web page of the Pennsylvania Disciplinary Board:
Over the last decade there has been a steady progression toward greater public access to information in the disciplinary system. The Disciplinary Board is taking another major step in the direction of transparency.
Ever since the founding of the Disciplinary Board, Rule 215 of the Pennsylvania Rules of Disciplinary Enforcement has allowed the possibility of disbarment upon consent after a resignation by an attorney. Until now, the resignation statement, which sets forth the factual basis of the action, has remained confidential; only the order disbarring the attorney was public.
The Disciplinary Board has published a proposed amendment to Rule 215 which would delete language providing that the resignation statement is to remain confidential, and simply provide “Upon entry of the order disbarring the attorney on consent, both the order and the resignation statement shall be a matter of public record except in cases where the matter was already public.”
The proposed rulemaking was published on November 6, 2010 at 40 Pa.B. 6387. Comments should be sent to Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, facsimile number (717) 231-3382 on or before December10, 2010.
I favor any proposal that increases the availability of information regarding attorney misconduct. (Mike Frisch)
Suspended For Tardiness
From the web page of the Ohio Supreme Court:
The law license of [a] Boardman attorney...has been suspended for two years, with the second year of that term stayed on conditions, for being tardy and/or failing to appear for scheduled proceedings before the Youngstown Municipal Court on multiple occasions over a two-year period.
In today’s 7-0 per curiam decision, the Supreme Court noted that [his] pattern of unprofessional conduct had resulted in multiple citations for contempt of court, and on one occasion caused the municipal court to issue a bench warrant for his arrest. The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] acts and omissions violated, among others, the state rules of professional conduct that require an attorney to act with reasonable diligence in representing a client and to cooperate with a disciplinary investigation, and that prohibit an attorney from engaging in undignified or discourteous conduct that is degrading to a tribunal, conduct that is prejudicial to the administration of justice, and conduct that adversely reflects on the lawyer’s fitness to practice law.
In light of [his] multiple incidents of misconduct and his failure to respond to the disciplinary complaint filed against him or cooperate with disciplinary authorities, the Court imposed a two-year license suspension with the final 12 months stayed on the conditions that he commit no further violations, complete two years of monitored probation upon returning to the practice of law, and complete eight hours of continuing legal education in law-office management in addition to the normal continuing-legal-education requirements of Gov.Bar R. X applicable to all Ohio attorneys.
The opinion is linked here. (Mike Frisch)
The Law Of Facebook
From the web page of the Pennsylvania Disciplinary Board:
Can a lawyer ethically get access to an opposing party’s Facebook page? We previously reported on a Philadelphia Bar Association opinion concluding that a lawyer may not, personally or through an agent, seek to “friend” an opposing party or witness without revealing.
But is there another way? A Pennsylvania Court of Common Pleas has held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.
A New York trial court decision reached the same result by a very similar analysis.
It becomes increasingly obvious that lawyers should be counseling their clients on the use of Internet social media. More than ever, there are few secrets on the Internet.
November 30, 2010
On County Time
The Illinois Administrator has filed a disciplinary complaint against the former elected state's attorney of Christian County, Illinois. The complaint alleges his nomination petition for a circuit court judgeship was altered and contained false signatures and notaries. The complaint also alleges that he did political work on county time:
At all times alleged in this complaint, Christian County Ethics Ordinance 2004 CB 013 prohibited county employees from engaging in "prohibited political activity" during any time worked by or credited to the employee. The ordinance also barred county office holders from engaging in "prohibited political activity" on work premises or when the office holder was executing his or her official duties. County employees and officers were also barred from using County property or resources in connection with any "prohibited political activity." Prohibited political activity included, "initiating for circulation, preparing, circulating, reviewing, or filing any petition on behalf of a candidate for elective office."
On various occasions between June 8, 2009 and November 2, 2009, Respondent and [another employee] performed work related to Respondent’s campaign for judicial office during work hours in the State’s Attorney’s office. The work included typing information on nominating petitions, making telephone calls and notarizing circulators signatures on nominating petitions. Some of the work was performed using County equipment.
The State Journal-Register has a detailed report on the conduct at issue. The November 2009 article reports that the attorney withdrew from the judicial race (the alterations had to do with a switch of races) and had contacted the ARDC about the situation. (Mike Frisch)
No Reason Not To Disbar
Disbarment is warranted, absent compelling circumstances, for repeated intentional misappropriation, false representations to clients and the fabrication of pleadings to conceal the misconduct, according to a decision of the Maryland Court of Appeals. There were no such compelling circumstances here.
One interesting aspect of the decision notes that the attorney had self-reported the misconduct. A concurring opinion allows for the possibility of a lesser sanction for a "true" self-report of misconduct. Here, the report was made after the misconduct had been discovered. (Mike Frisch)
The web page of the Ohio Supreme Court reports:
The law license of [a] Cleveland attorney...has been suspended for two years, with the final six months of that term stayed on conditions, for violations of the Rules of Professional Conduct in his representation of two clients and his conduct in the ensuing disciplinary investigation.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] committed multiple ethical violations by charging a clearly excessive fee, dividing his fees with other lawyers without disclosing the terms of that division, intentionally damaging or prejudicing a client during the course of his representation, and making knowingly false statements of material fact during a disciplinary investigation.
As conditions for staying the final six months of [his] suspension, the Court imposed the requirements that he commit no further misconduct, comply with an agreement to pay $15,000 in restitution to the client from whom he collected an excessive fee, and serve one year of monitored probation upon his reinstatement to practice.
The link to the court's opinion is not yet on line. (Mike Frisch)
November 29, 2010
"A New Motivational Exercise"
The Utah Supreme Court found that a district court had abused its discretion by denying a plaintiff leave to amend his complaint against his former employer and supervisor. Those allegations included:
...[the supervisor] had engaged in numerous questionable management practices. Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee's chair...he would patrol the employees' work area with a wooden paddle, which he would use to strike desks and tabletops. [The employer] was aware of [his] actions and encouraged his behavior because it led to increased revenue."
Could things get worse?
You bet, according to the complaint. The supervisor asked for volunteers for "a new motivational exercise." The exercise was waterboarding, after which the plaintiff alleges that he was told that he and his co-workers "should work as hard at making sales as [he] had worked at trying to breathe."
The case was remanded for further proceedings.
Wired has information about the suit here. (Mike Frisch)
What Comes After Disbarment?
The Louisiana Attorney Disciplinary Board has adjudicated charges against a disbarred attorney. The attorney had a history of discipline that led up to the ultimate sanction.
According to the board, the latest round of ethical violations also would bring disbarment. Thus, the board recommends that the period of disbarment be extended for two years beyond the present date when the attorney may petition for reinstatement. (Mike Frisch)
Reprimand Plus Admonition Equals Censure
The New Jersey Disciplinary Review Board considered two matters involving an attorney and concluded that one merited a reprimand and the other an admonition.
The board imposed a censure, noting that the attorney's alcohol and marital problems (his divorce attorney said it was the worst he ever handled) had affected his behavior. The attorney must provide proof of present fitness to practice, practice under a proctor's supervision until further order and continue with treatment for his addiction. (Mike Frisch)