Saturday, February 6, 2010

Weirdest Political Ad Ever?

This is your political ad on drugs.  Any questions?

It gets even more bizarre at the end.

By the way, Jeff, that breed of sheep on the pedestal at about 22 seconds into it is a Suffolk.

--Alan Childress

February 6, 2010 in Hot Topics | Permalink | Comments (0) | TrackBack (0)

Every Partner's Nightmare

The Illinois Hearing Board has recommended disbarment of an attorney for conversion of trust funds, lying to his partners and violating his fiduciary obligations to the shareholder attorneys of his firm. The attorney also had failed to participate in the hearing below. The board explains the factors that influenced its sanction analysis:

Here, although Respondent participated in some of these proceedings, he failed to attend the hearing, arguably the most important part of these proceedings. His absence demonstrates a lack of respect for the authority of the ARDC and the Illinois Supreme Court, and is a significant aggravating factor.

Respondent...aggravated his misconduct by causing harm to his clients and law partners. Respondent converted more than $675,000 in client funds and misused thousands of dollars in law firm funds. He did so for his personal benefit and, in almost all instances, failed to make restitution. In fact, rather than admit his misconduct, he exacerbated it. His former law firm is entangled in complex and lengthy litigation in an effort to recoup money Respondent improperly took. At least one of his clients, Gil, is also involved in federal litigation created by Respondent’s misconduct. Additionally, Gil is millions of dollars in debt, and lost all of the assets she should have received from her mother’s trust. The harm Respondent caused to his clients and former law partners is a substantial aggravating factor...

Respondent misconduct is also aggravated by the fact that this was not an isolated incident, but a pattern of misconduct occurring over a period of several years. Respondent’s pattern of using money that did not belong to him occurred over the course of several years. He regularly spent client and law firm funds to pay his personal expenses. It is a pattern of misconduct that seems to have become Respondent’s way of doing business. He regularly treated other people’s money as if it were his own. This is an egregious aggravating factor which is exacerbated by the fact that he used this money to support his frivolous lifestyle. It is apparent from the evidence that Respondent used these funds to support his personal lifestyle. His credit card bills, which he paid with misappropriated funds, reveal a significant amount of money was used for extravagant purchases including vacations to the Caribbean, meals at expensive restaurants, and purchases of costly jewelry and lingerie. Although we are not condemning the nature of Respondent’s purchases, they would each have been perfectly proper had he paid for them with his own assets, we believe it is important to understand Respondent’s reasons for taking the money. It is apparent he took the money to support an extravagant lifestyle, and we find this to be an aggravating factor.

(Mike Frisch)

February 6, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, February 5, 2010

"I'll See You In Federal Prison"

The Arkansas Supreme Court Committee on Professional Conduct cautioned an attorney for misconduct in the course of litigation between a divorced couple over visitation custody and child support. The attorney represented the ex-wife. The ex-husband was a convicted felon who was on parole. During the course of a full-day hearing, the attorney whispered to the ex-husband "I'll see you back in federal prison." The attorney then sent discovery responses to his parole officer alleging that he had violated his condition of release.

The bar ethics charges involved both the threat and the release of the information to the parole officer. The seven-member bar committee unanimously rejected one charge and split on a number of other ethics charges, largely with a majority finding no violation. The committee did find that the whispered threat violated the duties owed to an opposing party found in Rule 4.4(a). As I read the votes, it appears that no violation was found with respect to the disclosures to the parole officer. Notably, it appears that the charges did not allege an unauthorized communication in violation of Rule 4.2. (Mike Frisch)

February 5, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Reinstated

The Connecticut Appellate Court affirmed a trial court order that had been appealed by a suspended attorney whose application for reinstatement had been denied. The court rejected a variety of contentions, concluding that the trial court had abused its discretion in reviewing a committee's findings, that the proceedings disregarded a five-year suspension order that had been fully served, and a host of attacks on the disciplinary process.

The attorney had pleaded guilty to three counts of risk of injury to a child. The conduct involved sexual contact with three children under the age of sixteen. He was sentenced to 30 years in prison with execution stayed after three years and 35 years probation. The sentencing judge also suspended him from practice for five years.

He was released from custody in April 2004 and sought reinstatement in August 2007. The court here found that the trial court applied the correct standard of review to the findings of the bar's committee. The court squarely rejected the suggestion that the suspension order of the sentencing judge provided for automatic reinstatement after five years. finally, the court rejected an array of contentions concerning the discipline process, including the novel idea that that it was improper for disciplinary counsel to cross-examine his witnesses. The court also rejected claims that disciplinary counsel was biased against him and had made improper arguments about his "predatory" behavior and risk of recidivism. (Mike Frisch)

February 5, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

"A Troubling Situation"

The New York Appellate Division for the First Judicial Department agreed with the Departmental Disciplinary Committee that an interim suspension be imposed on an attorney. The attorney had previously been suspended for three years and was reinstated.  The present matter was initiated by a report from an attorney employee alleging trust-account irregularities. The court reasoned:

We conclude that respondent's commingling of funds in his IOLA account in order to hide his income from tax authorities, his failure to maintain adequate bookkeeping records, and his financing arrangements with lending corporations to keep his apparently insolvent law practice afloat creates a troubling situation which puts his clients' funds at risk and thus immediately threatens the public interest warranting an interim suspension. Moreover, a closer review of respondent's bank records raises additional questions. The bank records show that from December 2007 to February 2009, respondent never wrote a check to any tax authorities notwithstanding repayment agreements he allegedly has with them. While respondent avers that he had a net loss for 2008, during the aforementioned 15-month time period (Dec. 2007 - Feb. 2009), it appears that he took in approximately $450,000 in legal fees, apparently tax free.

Accordingly, the Committee's motion should be granted and respondent should be found guilty of professional misconduct immediately threatening the public interest and be suspended from the practice of law effective immediately, until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court.

(Mike Frisch)

February 4, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

YouTube Judicial Campaign Ad Leads To Public Reprimand

The Florida Supreme Court approved a stipulation for discipline and imposed a public reprimand of a circuit court judge for "misrepresentations made to the voting public during [the judge's] campaign for the Circuit Court judgeship." Noting that a judicial candidate "is responsible for the conduct of [a] political consultant," the court found that the an advertisement had appeared on YouTube asking that the judge be "re-elect[ed]' when the judge had been appointed rather than elected to the bench. Further, a campaign mailer had touted the judge's 20 years of legal experience when the judge had been admitted in 1994:

It is clear that a member of the judiciary or judicial candidate should not mislead the public by placing factually incorrect statements in campaign materials.

(Mike Frisch)

February 4, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Utah Grants Waiver Of ABA-Accreditation Requirement

The Utah Supreme Court recently granted a petition for extraordinary relief and allowed waiver of the requirement that the petitioner have graduated from an ABA-accredited law school in order to sit for the bar examination. The petitioner graduated from Western State University which, at the time of his graduation, was accredited by the California State Bar but not the ABA. He was told by the Utah Bar that he would be allowed to sit for the bar exam if he was admitted in California and practiced there for at least five years.

 Petitioner was authorized to sit for the Utah bar in 1988 but did not show up for the exam. In 2008, he moved to Provo to care for his ailing mother. When he reapplied to take the exam, he was advised he was ineligible due to the ABA problem. He filed the petition for extraordinary relief rather than appeal the Bar's decision.

The court here granted the waiver, noting that it "has no desire to encourage a flood of individualized waiver petitions...where an attorney had actively practiced law, without blemish, for nearly thirty years and comes highly recommended by judges, clients, and fellow attorneys, waiver of the ABA-accreditation requirement is appropriate." The court also referred the issue to the Bar and the court's rules committee to consider changes to give the Bar authority to waive the requirement in the future subject to discretionary court review.

A good result that does not mindlessly follow procedural rules but rather does the right thing. (Mike Frisch)

February 4, 2010 in Current Affairs, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Citizen's Arrest

The South Dakota Supreme Court has held that on-duty student officers at South Dakota State University do not have the authority to make citizen's arrests for petty offenses. Two students observed another student park his car, get out and apparently urinate on the tire of his car (they could not see him but heard the noise and verified that there was urine involved). A passenger also got out and vomited on a light pole. The student officers detained the driver until the real police arrived. The driver was convicted of an alcohol-related driving offense.

The court here held that the citizen's arrest was unlawful for the petty offense of public urination and the DUI conviction was reversed. (Mike Frisch)

February 4, 2010 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Board Reversed, Prosecutor Absolved

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today dismissed a disciplinary complaint alleging professional misconduct by [a] Logan County assistant prosecutor...The Court’s decision reversed findings of disciplinary rule violations by the Board of Commissioners on Grievances & Discipline.  

In a 6-1 per curiam opinion, the Court concluded that [the prosecutor's] acts and omissions in not disclosing the contents of two documents to the defendant in a juvenile rape case did not violate her legal obligations as a prosecutor or her ethical duties as an attorney. The undisclosed documents were reports summarizing the victim’s statements about the crime during interviews with a social worker and a sheriff’s deputy.

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a dissent stating that in his view the majority erred by evaluating [the prosecutor's] conduct in light of the state’s rules of criminal procedure and court decisions defining defendants’ due process rights, rather than applying the more rigorous disclosure standard set by Rule 7-103(B) of the Code of Professional Responsibility. The Chief Justice wrote that he would affirm  the rule violations found by the disciplinary board and impose the board’s recommended sanction of a 12-month license suspension with six months stayed on conditions.

The accused attorney was the chief assistant prosecutor of Logan County. The charges involved two instances of alleged forced sex. The victim had described the incidents in counseling and the therapist had reported the allegations as required by statute. The prosecutor had not disclose two reports that the court here found to constitute only impeachment evidence. Because the defendant pleaded guilty, the court found no obligation on the prosecutor's part to disclose the evidence prior to trial, but the majority ruling "should not be construed as an endorsement of respondent's nondisclosure of the reports."

Well, it's not much of a condemnation either.

The opinion of the court is linked here. (Mike Frisch)

February 4, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 3, 2010

Burden Of Proof When Entrusted Cash Is Missing

A bar discipline decision issued by the Massachusetts Supreme Judicial Court yesterday:

In this bar discipline case, the respondent received cash belonging to an elderly client but did not make a record of the total amount received and did not deposit the money in a client trust account. Instead, he placed the cash in a fireproof safe in his office. Thereafter, he spent a substantial part of the money for the client's benefit, and misplaced but later discovered some of the remaining money; no records account for another portion of the cash. For these events, the Board of Bar Overseers (board) has recommended a two-month suspension.

We must determine the appropriate burden of proof and the proper sanction to be imposed where an attorney has misplaced cash belonging to a client, without the intention of depriving the client of the funds, and where a portion of the cash has never been accounted for by the attorney. Bar counsel urges us to treat the case as one of intentional misuse; to place the burden on the attorney to establish that no misuse took place; and, failing a satisfactory explanation, to disbar the respondent or, alternatively, to suspend him from the practice of law for at least one year and one day. The respondent contends that, although he cannot account for a portion of the money he received, he did not misuse the cash; the burden of proof remains always with bar counsel; and, as the hearing committee recommended, he should be sanctioned by a public reprimand.

The burden to prove facts that establish an ethical violation and that provoke enforcement of the disciplinary rules is usually allocated to bar counsel. Here, bar counsel has proved that the respondent received cash that belonged to the client, did not deposit it in a client trust account, and cannot account for a portion of it. With these facts established, we state, for prospective application only, that, in such circumstances, a rebuttable presumption is created that the attorney misused client funds and that the client was deprived of the funds permanently. At this point in the analysis, consistent with burdens that apply to other fiduciary relationships, the burden of explaining what became of the funds shifts to the attorney. While we do not apply this change of approach to the present case, we determine separately that the board's recommendation of a suspension of two months is unreasonably lenient on the facts found, and we impose instead a suspension of six months.

The court's reasoning:

The question of the allocation of the burden of proof in a case of this nature (receipt of cash) is not a simple one. It is of course customary in our justice system that the party seeking relief is called on to prove the facts that entitle him or her to the relief. In the present case it is bar counsel who seeks the relief of a determination that the respondent has violated a disciplinary rule and an appropriate sanction therefor. Given the critical nature of an allegation that an attorney has mishandled client funds, one with serious, long-term effects on the standing of a member of a profession that emphasizes character and reputation, it must fall to bar counsel to prove the factual basis for the claim of unethical behavior.

This burden need not extend, however, beyond proof that funds have been received by the attorney and the attorney has neither deposited them in an appropriate bank account nor otherwise provided an adequate accounting regarding their disposition. The failure properly to record and deposit cash, a fungible and generally untraceable asset, and the failure to produce the cash or to make an adequate accounting of its use, is a serious offense that merits far greater sanctions than those that have been previously imposed for negligent accounting and misplaced funds....We conclude that far more serious sanctions are required both to deter attorneys from engaging in such conduct and to encourage public confidence in the legal profession...

Once a showing has been made by bar counsel that client cash has been received, has not been deposited in a bank account, and has not been accounted for, we have no difficulty in holding that it is the respondent attorney's burden to explain what happened to the money. In such circumstances, it is the attorney who will be in possession of, or otherwise have access to, the relevant information, including information that may exonerate him or her with respect to what otherwise appears to be a violation. It is thus not unfair to rely on a presumption, one that can be rebutted, that unaccounted-for cash received from or on behalf of a client is deemed to have been commingled in violation of Mass. R. Prof. C. 1.15 and that the client has been permanently deprived of the money. Our approach to the question does not differ from the allocation of responsibilities that attend other fiduciary relationships such as that of trustee and beneficiary. See Restatement (Second) of Trusts § 172 comment b (1959). See also Samia v. Central Oil Co., 339 Mass. 101, 126 (1959).

In adopting this approach, we do not mean to suggest that the distinction between an intent to deprive the client of funds and negligent handling of cash without such an intent has been eliminated. Bar counsel's argument that there is no distinction in the rules of professional conduct between misplacement of client funds, negligent misuse, or misuse with deprivation, "whether intentional or negligent," and that all are simply failures to comply with one or more provisions of Mass. R. Prof. C. 1.15, is unavailing. Although the language of the rule makes none of these distinctions, but merely requires that funds be deposited in a trust account, accounted for, and returned timely to the client on request, our case law has consistently maintained different sanctions for commingling alone, negligent misuse, intentional misuse, and intentional misuse with deprivation.

Nor do we seek to render insignificant the question whether a given client has actually been deprived of the funds by the actions of counsel. These continue to be relevant considerations, particularly with respect to the severity of the sanctions; but, once bar counsel has established the operative facts, hereafter it will be the burden of the attorney to demonstrate whether the funds are indeed missing, whether his actions were intentional or negligent, and whether there has been deprivation. Should an attorney fail to convince that funds are missing by virtue of negligence rather than purpose, deprivation will be presumed, and a sanction of disbarment or indefinite suspension will be imposed.

The rule we announce today, and its accompanying sanction, will apply only to cash, and is to be imposed for misconduct occurring after the date of the issuance of the rescript of this opinion. While we recognize that the new rule is harsher than previous treatment for similar behavior, and will also result in far greater sanction where cash is involved than in other violations of Mass. R. Civ. P. 1.15, we conclude that, by its very nature, cash must be treated differently than other client assets. Above all, we "must consider what measure of discipline is necessary to protect the public and deter other attorneys from the same behavior." (citations and footnotes omitted)

The case is Matter of Murray. (Mike Frisch)

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

Hold That Call

The Wisconsin Supreme Court upheld the admission of most of the evidence obtained after seizure of the cell phone of an arrested defendant:

The focus of our inquiry is whether the evidentiary basis for the warrant to search the cell phone was tainted such that the Fourth Amendment to the United States Constitution, or Article I, Section 11 of the Wisconsin Constitution, requires suppression of that evidence under the following circumstances:  (1) an officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs.  The police obtained a warrant to search the phone.  With the warrant, the police obtained time-stamped digital images from Carroll's cell phone.  It is that evidence that Carroll seeks to suppress.

We hold that neither the Fourth Amendment to the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution requires that the evidence be suppressed under the circumstances presented here.  In so holding, we are satisfied that the officer was justified in seizing Carroll's cell phone and in viewing the marijuana image, which was in plain view.  Further, although the officer was also justified in continuing to possess the phone, we are satisfied that the officer was not justified in opening and browsing through the cell phone image gallery at the time that he took such action.  As such, the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant.  However, based on exigent circumstances, the officer was justified in answering the incoming call to Carroll's phone during which the caller ordered illegal drugs.  That evidence was an untainted independent source that formed a valid basis for the search warrant when combined with the officer's knowledge of drug traffickers and Carroll's juvenile record, along with the plain view of the image of the marijuana blunt.  Accordingly, we affirm the court of appeals.

(Mike Frisch)

February 3, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)

All In The Family

Another recently-filed complaint by the North Carolina State Bar alleges misconduct by an attorney who had employed her twice-disbarred father in her law office. The father was disbarred following his conviction for embezzlement of client funds, reinstated, and disbarred again after a federal conviction for wire fraud and conspiracy to engage in money laundering. He went to work for the daughter both while on work release and after his full release from federal custody.

The charges allege that the father agreed to represent two plaintiffs in a contract dispute for an $1,250.00 fee. The check was made payable to him and he cashed it. The fee was not deposited in the attorney's law firm or personal accounts.

The attorney then filed the suit but neglected to perfect service. The court case file was closed as a result. The Bar alleges other defects in the complaint as well. After one of the clients complained to the Bar, the attorney refiled the case and obtained a default judgment against one defendant. The attorney was allowed to withdraw and the complaint was dismissed as to the other defendant for failure to state a claim.

The Bar charges that the attorney assisted her father's unauthorized practice, failed to make it clear to the clients that the father was disbarred and unable to represent them and shared fees with a non-lawyer, as well as a lack of diligence, competence and communication in the matter. (Mike Frisch)

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

Attorney Faces Charges Of Improper Importuning Of Client

The North Carolina State Bar has filed a disciplinary complaint that alleges misconduct by a court-appointed attorney who had represented a client for approximately six months. It is alleged that the attorney throughout the representation "made inappropriate comments of a sexual nature to [the client], both in person and by text messages" and "made it known to [the client] that he wanted to have sex with her."

Unlike the case from West Virginia that we reported on last week, it is further alleged that the attorney "tried to touch [the client] in a sexual manner and tried to convince [her] to have sex with him. " In the West Virginia case, the attorney and client had not met in person.

(Mike Frisch)

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

Bigamy Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today imposed a six month suspension against the law license of [a]Youngstown attorney...for falsely stating on a North Carolina marriage license application that he had never been married before, and entering into a bigamous second marriage in that state before a divorce from his first wife in Ohio had been finalized.

In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] actions violated the state attorney discipline rule that prohibits conduct involving fraud, deceit, dishonesty or misrepresentation. The Court also found that by engaging in his current misconduct, [he] violated the terms of a previous one-year suspension for unrelated rule violations that was stayed on the condition that he not reoffend.

Accordingly, in today’s order the Court reinstated [his] stayed one-year suspension and ordered that the new six-month suspension be served concurrently.

The opinion is linked here. The respondent was a "seasoned criminal defense attorney" who married in August 2001 and separated in September 2005. Dissolution proceedings were initiated but dismissed. He arranged to be married in 2007 and expected his divorce to be finalized. It was not, but he "nevertheless married again." The first wife notified authorities of the bigamous marriage and also filed a bar grievance. Criminal charges were not prosecuted, the first divorce became final and he legally married his second wife. The board and court accepted his admission that the conduct constituted an ethical violation.

The court:

Instances of bigamy are rare....Respondent's situation is different [from a prior case where, among other things, the attorney abandoned his first wife and four children]...respondent the process of ending his first marriage. Upon learning of respondent's pending nuptials, his first wife had rejected a final settlement at the last minute and asked for more money. Though he knew of this development, respondent admittedly exercised poor judgment by deciding to go ahead with the wedding. Within days after his illegal marriage, respondent notified the wedding official and encouraged the official to cooperate with law enforcement.

The attorney also had a record of prior discipline. The stayed sanction of that case was reinstated along with a concurrent six-month suspension imposed for this misconduct. (Mike Frisch)

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

Tuesday, February 2, 2010

And The Winner Is...

The web page of the Pennsylvania Disciplinary Board has a newly-posted feature, an attorney E Newsletter that in the January 2010 edition discusses highlights in bar discipline for 2009:

In this issue we present our second annual survey of the most interesting disciplinary cases decided during the year. Factors we look for in selecting these cases, in no particular order, include:

  • Unusual or extraordinary fact situations;
  • Decisions which address legal issues that often come up in disciplinary cases;
  • Decisions which discuss the meaning of one of the Rules of Professional Conduct or Rules of Disciplinary Enforcement;
  • Decisions which present reviews of prior cases on a subject;
  • Decisions regarding situations which may arise regularly in the practice of law.

Decisions of the judge are final and unappealable.

I applaud the effort to highlight professional responsibility issues in a manner that goes beyond what Pennsylvania already does, which is provide prompt and easy access to its decisions. Many bar web pages don't even do that. (Mike Frisch)

February 2, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Consent Leads To Reciprocal Disbarment

The New York Appellate Division for the Second Judicial Department imposed the reciprocal discipline of disbarment based on the attorney's New Jersey consent to disbarment. The court rejected the following plea:

...the respondent submitted a statement, in which he contended that the imposition of discipline in New York based on the harsh conclusion of the New Jersey court would be unjust. The respondent is 75 years of age and in declining health. He alleges that the issues leading to his disbarment arose since he was the victim of a scam by a client. He claims that he was compelled to transfer funds from his client's trust account to a secondary trust account of that client. The respondent further contends that, as a result of that transfer, the New Jersey Ethics Committee determined that the respondent had acted improperly, and recommended his disbarment.

As to the merits:

Notwithstanding his own expressed belief that his actions in New Jersey were not harmful to any clients, the respondent attested in his "Disbarment by Consent" in New Jersey that the allegations that he had knowingly misappropriated client trust funds/escrow funds were true, and that he could not successfully defend himself against them. Accordingly, the respondent is disbarred in New York based on his disbarment in New Jersey.

(Mike Frisch) 

February 2, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Arresting Development

The Ohio Supreme Court today issued an arrest warrant for an attorney who had been publicly reprimanded in 2006 and indefinitely suspended in 2009. The court's order notes that he was ordered to appear in person and failed to do so.

A 20-day jail sentence was imposed with a provision that the contempt "may be purged if respondent copperates with the Akron Bar Association with regard to the disposition of respondent's files the bar association has in its possession." (Mike Frisch)

February 2, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Lawyer-Juror Misconduct Findings Upheld

An update on a high-profile bar discipline case from the California Bar Journal's February 2010 web page:

Francis Thomas Fahy was disbarred July 21, 2009, and was ordered to comply with rule 9.20.

Fahy appealed a State Bar Court hearing judge’s findings that while acting as a civil trial juror in a 2004 medical negligence case, Fahy voted in favor of the defendant, whom he believed was responsible for the plaintiff’s injuries, in order to end a likely jury deadlock so that he could return to his law practice. When questioned by the trial judge, Fahy misrepresented the reasons for his vote.

Fahy argued his innocence, but the bar court’s review department upheld the disbarment recommendation because Fahy’s “acts went beyond dereliction of his duties as an attorney to follow the law when sworn to act as a trial juror.”

The trial went on for several weeks and when the jury could not reach a verdict despite several votes, Fahy told jurors “that if the judge would not declare a mistrial, [he] would change his vote for the defense to break the deadlock so he could return his attention to his law practice.” Under questioning by the trial judge, Fahy “stated that he acted only within the court’s instructions and the trial evidence,” according to the review department. He also told the judge his signature on a declaration was forged, signed by him by mistake or he was tricked into signing it.

The judge granted a new trial, in part because Fahy’s testimony was “obfuscating and not credible.”

The hearing judge found that Fahy violated his duties as a juror and committed an act of moral turpitude by making misrepresentations to the judge.

Shortly after his trial before the bar, Fahy was suspended for misappropriating trust funds from a client, and for failing to report his receipt of funds, maintain those funds in a trust account or promptly pay them to his client.

The review panel rejected Fahy’s argument that he was prevented from presenting exculpatory evidence. Instead, it found the conclusion that he violated his duties as a juror “inescapable” and his dishonesty to the judge “reprehensible conduct.”

Fahy filed a federal civil rights action against the Supreme Court, the State Bar Court and the bar attorneys handling his case.

(Mike Frisch)

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

Fee Suit Draws Counterclaim

The dangers in suing a client for legal fees are manifest in a recent decision of the New York Appellate Division for the Second Judicial Department. The appeal of the law firm plaintiff was dismissed:

The plaintiff is a law firm, and commenced this action to recover damages for breach of contract, specifically certain legal fees it claims that the defendant failed to pay it pursuant to an agreement. After the defendant interposed an answer and the parties engaged in discovery, the defendant moved pursuant to CPLR 3025(b) for leave to serve an amended answer with counterclaims. In an affidavit, the defendant claimed that, during discovery, he learned that an employee of the plaintiff law firm, with whom he had communicated frequently and with whom he claimed to have discussed substantive legal issues, and who allegedly discussed substantive legal issues with opposing counsel and with the court, was not, contrary to the defendant's prior understanding, an attorney. The defendant sought to incorporate these allegations into an existing affirmative defense, and to add additional counterclaims. Over the plaintiff's opposition, the Supreme Court granted the defendant's motion. In arriving at its determination, the Supreme Court specifically found, inter alia, "that the services performed by [the nonattorney employee] constituted the practice of law" and that an attorney at the plaintiff law firm "improperly delegated his professional responsibility" to that employee.

The plaintiff expressly declines to appeal from so much of the order as granted the defendant's motion pursuant to CPLR 3025(b) for leave to serve an amended answer with counterclaims. Rather, the plaintiff purports to appeal only from the Supreme Court's findings of fact and conclusions of law, as described above. Thus, the appeal must be dismissed, as findings of fact and conclusions of law are not separately appealable. (citations omitted)

(Mike Frisch)

February 1, 2010 in Clients | Permalink | Comments (0) | TrackBack (0)

Court Clerk Held In Contempt

From the web page of the Tennessee Supreme Court comes a summary of a recent decision of the Court of Appeals:

This appeal involves a finding of civil contempt against a court clerk. Three juvenile court referees entered separate orders requiring the juvenile court clerk to produce certain court files to them on a date certain. The court clerk did not produce the files by the deadline. The referees issued show cause orders, requiring the court clerk to appear and show cause why he should not be held in contempt of court for failing to comply with the orders to produce the files. At the first show cause hearing, the court clerk produced most, but not all, of the files at issue. A second hearing was scheduled, at which the clerk produced all but two files. For the failure to produce the two missing files, the referees held the court clerk in civil contempt and ordered him to be incarcerated until the files were produced. A couple of hours later, the files were produced, and the court clerk was released. The court clerk appealed the contempt finding and was granted a de novo hearing before the juvenile court judge. At the conclusion of the hearing, the juvenile court judge found the court clerk in willful contempt of court, but found also that he had purged his contempt by producing the files at issue. The court clerk now appeals. We affirm, finding that the juvenile court referees had authority to hold the court clerk in contempt and have him incarcerated until the files were produced, and that the evidence supports the trial court’s finding that the court clerk willfully disobeyed the referees’ lawful order.

The opinion is linked here. (Mike Frisch)

February 1, 2010 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)