December 24, 2010
Withdrawal Granted For Substantial Fianancial Hardship
From the web page of the Rhode Island Supreme Court:
NAIAD Inflatables of Newport, Inc. (NAIAD), engaged the law firm of Duffy & Sweeney, Ltd. (D&S) to defend it in a civil lawsuit brought in 2005 by the plaintiff, Stafford J. King, III. Soon, however, NAIAD became delinquent in its financial obligations to D&S. Concerned with both a large receivable and a looming trial date, D&S filed a motion to withdraw from the case. This motion was unopposed by the client or by opposing counsel. A justice of the Superior Court denied the firm’s motion. On the grounds of abuse of discretion by the hearing justice, the law firm timely appealed.
D&S filed a motion to withdraw based upon NAIAD’s failure to fulfill its financial obligations under the engagement agreement. Supported by an affidavit of counsel, the motion was properly certified and forwarded to all parties of interest in compliance with the Rules of Civil Procedure. Providing its client with ample notice, D&S made numerous requests for payments, sent reminder invoices, and warned NAIAD that D&S—based on a signed engagement agreement between the parties—would seek to withdraw as counsel if the client failed to bring the balance current. Further, D&S informed NAIAD that it would have the right to object before the Superior Court in the event that such a motion was filed. Denying the unopposed motion, the hearing justice cited Article V, Rule 1.16 of the Supreme Court Rules of Professional Conduct, and ruled that granting the motion would have a “materially adverse effect” on the interests of the clients.
In reversing the Superior Court’s denial of counsel’s motion to withdraw, the Supreme Court said that the hearing justice did not accord adequate weight to the hardship and substantial financial burden that would befall D&S if the law firm were required to continue in its representation of a nonpaying client. Moreover, the Court was of the opinion that the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client.
The opinion is linked here. (Mike Frisch)
"Barely Adequate" Sanction
The Wisconsin Supreme Court has accepted a referee's recommendation for sanction, concluding that a public reprimand was "barely adequate for the egregious conflict of interest" where an attorney had represented a criminal defendant after interviewing the victim as a potential client.
The attorney had received highly confidential information from a victim of sexual abuse of the part of a nun. The nun had been the victim's teacher, school principal and a family friend. The family consulted with the attorney about a possible civil suit, which the attorney declined to undertake because of statute of limitations problems.
The attorney thereafter represented the nun in ensuing criminal charges:
The referee made a number of factual findings, ultimately finding that [the] Attorney...did represent G.K. [the victim] and concluding there was a clear conflict of interest with respect to Attorney...'s representation of [the nun]. These findings included the fact that Attorney...knew that G.K. ——identified as a victim by [the nun] and in the criminal complaint——was the same individual Attorney...met with to discuss a possible civil case against [her]. Attorney...had received G.K.'s therapy records both when initially investigating the matter and then later as part of the discovery materials obtained from the district attorney in the...criminal matter. The police reports detailing the...abuse investigation also indicated that G.K. referred to Attorney...as his attorney.
Attorney...testified that he reviewed the supreme court rules regarding conflicts of interest and determined there was no conflict. He did not consider it necessary to obtain written permission from G.K. to represent [the nun]. The referee observed that Attorney...believed he met with G.K. out of professional courtesy and that was it. He did, however, acknowledge that he considered retaining another attorney if it became necessary to cross-examine G.K. in the...criminal proceeding.
The court also imposed continuing legal education requirements.
Details about the criminal case from JSO.Online may be found here. (Mike Frisch)
December 22, 2010
N-Word Results In Suspension
The Indiana Supreme Court has suspended an attorney for 30 days without automatic reinstatement for violating the rule prohibiting manifestation of bias or prejudice based upon race.
The attorney was an officer of a title company and gave the company legal advice. He sent an e-mail response to a meeting request to the secretary of an agent who represented the seller in a title dispute:
I know you must do your bosses [sic] bidding at his direction, but I am here to tell you that I am neither you [sic] or his [n-word]. You do not tell me what to do do. You ask. If you ever act like that again, it will be the last time I give any additional thought to your existence and your boss will have to talk to me. Do we understand each other?
The hearing officer found that the use of the word was "a derogatory racist insult, that Respondent's use of the term was not simply a historical reference to slavery but rather manifested racial bias, that he was acting in a professional capacity when he sent the email, and that his use of the term was not connected to legitimate advocacy."
The court noted that the attorney denied committing misconduct, offered no apology or remorse, and had a record of prior discipline. One justice would impose a less severe sanction. (Mike Frisch)
Judicial Expletive Deleted
The Tennessee Court of the Judiciary has issued a letter of public reprimand to a general sessions court judge for permitting an attorney who rented office space from him to appear as counsel in a matter before him. He also had "used an expletive wholly improper for a courtroom setting." The judge had admitted the facts, expressed immediate remorse and accepted responsibility for his actions.
The expletive at issue is not recounted in the decision. (Mike Frisch)
Not Now Or Ever An Attorney
From the Ohio Supreme Court web page:
The Supreme Court of Ohio ruled today that Gardner Pratt of Loveland engaged in the unauthorized practice of law by holding himself out as an attorney at law, performing legal services and collecting fees from six different “clients” over a two-year period despite the fact that he is not and never has been admitted to the practice of law in Ohio.
In a 7-0 per curiam decision, the Court issued an order barring Pratt from engaging in any future conduct that constitutes the unauthorized practice of law, and imposed a $60,000 civil penalty for the illegal actions addressed in today’s decision.
The Court adopted findings by the Board on the Unauthorized Practice of Law that between March 2006 and November 2007 Pratt collected more than $70,000 in fees from one individual who hired him to perform legal services for several businesses after Pratt represented himself as an attorney licensed to practice in Ohio and Florida. When Pratt abruptly stopped responding to the client’s phone calls and failed to initially return case files and documents in his possession, the client discovered that Pratt was not licensed as an attorney and obtained a court judgment ordering Pratt to refund $70,073.97 in fees he had collected from the client for “legal services.” Pratt has not paid any part of that judgment.
The Court agreed with the board’s conclusions that, by providing services to the judgment creditor and five other clients who believed they were retaining a licensed attorney, Pratt engaged in the unauthorized practice of law by giving legal advice and counsel to others, preparing contracts and other documents affecting other persons’ legal rights and obligations, representing the legal interests of others in settlement negotiations and collecting fees from others for services that may lawfully be provided only by an attorney.
In imposing a substantial civil penalty on Pratt, the Court noted that the purpose of the state laws and rules that prohibit the unauthorized practice of law is to protect the public against incompetence, conflicts of interest and other negative consequences of unskilled representation. The Court also noted that enforcement of licensing regulations is essential to ensure that individuals and businesses who need legal advice and services to protect their vital financial and personal interests will obtain those services from licensed professionals who have met the education and training requirements and character and fitness standards established by the Supreme Court, and who have demonstrated their practical knowledge of the law and legal procedures by passing the state bar examination.
The opinion is linked here. (MIke Frisch)
December 21, 2010
Mixing Personal And Professional
The Arizona Supreme Court agreed with the proposed sanction of its Disciplinary Board and imposed a six month suspension followed by two years probation in a case involving a criminal defense attorney's handling of a probation violation matter.
The intimate personal relationship between attorney and client created a conflict of interest and led to the attorney's filing of a misleading pleading and acts in contravention of a court order regarding the client's living situation. (Mike Frisch)
A recent bar discipline case is reported on the web page of the Massachusetts Board of Bar overseers:
The respondent was admitted to practice in Massachusetts on January 17, 2006. He was also licensed to practice in New York. In 2006, the respondent accepted a job as an associate at a firm in Boston, Massachusetts. When he was hired, the firm agreed to pay either his New York or his Massachusetts attorney license fee. The respondent assumed that the firm was paying his Massachusetts registration fee because the respondent was paying his New York registration fee. The respondent negligently failed to confirm this understanding with the firm, and he failed to register and to pay his Massachusetts annual registration fee due to be paid in December of 2006. On July 24, 2007, the respondent was administratively suspended due to his failure to register.
The respondent was unaware of his administrative suspension. He did not seek reinstatement within thirty days of the entry of the order of administrative suspension. He therefore became subject to the notice and compliance provisions of S.J.C. Rule 4:01, § 17(1), (5) and (6). The respondent did not comply with these rules.
The respondent continued to practice law in Massachusetts until December of 2009, when he learned of his administrative suspension and promptly ceased the practice of law.
In December 2009 and January 2010, the respondent intentionally failed without good cause to reply to two letters from bar counsel. After the Board of Bar Overseers issued a subpoena directing the respondent to appear on February 18, 2010 for questioning, the respondent contacted bar counsel, filed a written response, and cooperated with bar counsel’s investigation.
On March 29, 2010, the respondent filed an affidavit of compliance with S.J.C. Rule 4:01.
By practicing law after his administrative suspension, the respondent violated Mass. R. Prof. C. 5.5(a). By failing to file a timely affidavit of compliance, the respondent violated Mass. R. Prof. C. 8.4(d) and S.J.C. Rule 4:01, § 17(5) and (6). By knowingly failing without good cause to respond to a lawful demand for information from a disciplinary authority in connection with a disciplinary matter, the respondent violated Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g).
The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand. On October 18, 2010, the board ordered a public reprimand.
The Michigan Attorney Discipline Board has imposed a one-year suspension of an attorney who had been convicted of criminal contempt. The conduct involved "willful acts, omissions, and statements designed to mislead [a] court in efforts to delay and impede collection of child support and for the purpose of disbursing money to herself and her brother in violation of court order."
The attorney represented her brother in the underlying case and was represented by her husband in the bar discipline matter. The husband was "unfamiliar with discipline matters." While she had an unblemished record in 22 years of practice, but "seemed unaware of the wrongfulness of her conduct."
The board reduced the panel suspension of three years. The board considered circumstances that included two days jail time and over $20,000 in fines. (Mike Frisch)
December 20, 2010
No Admission Without Recovery Contract
The Louisiana Supreme Court denied admission to an applicant who had passed the February 2010 bar exam. The court held that "an applicant suffering from alcohol dependence will not be considered for admission until he or she has entered into a recovery contact with [the Bar's Lawyer Assistance Program] and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract."
The applicant may not reapply until the contract conditions are met. (Mike Frisch)
Probate Judge Cannot Work In Funeral Home
From the South Carolina Advisory Committee on Judicial Conduct:
OPINION NO. 13-2010
A recently elected full-time Probate Judge inquires into the propriety of continuing employment with a funeral home. The Judge is a licensed funeral director and a licensed “pre-need” insurance agent employed by a local funeral home. The Judge indicates that continued employment with the funeral home would not involve the selling of funeral merchandise, services, or pre-need insurance, but instead would require the judge to work a limited number of hours, primarily on the weekend, in a “support role” assisting other directors and staff members with funeral and memorial services.
A full-time Probate Judge should not continue employment with a funeral home.
A judge may be employed by a business entity if that service does not conflict with the judge’s judicial duties Rule 501, SCACR, Canon 4D(3). The Commentary to Canon 4D(3) states that a judge may be prohibited from participation in the business entity if “participation requires significant time away from judicial duties.” Additionally, a full-time judge should not accept other employment without permission of the entity employing him or her as judge.
Furthermore, in this situation, the Judge’s other employment involves contact with family members of deceased individuals and those family members are likely to appear before the Probate Court. Under Canon 4.D(1)(b), a judge should not engage in business or financial activities that would involve frequent transactions with persons likely to come before the court on which the judge serves. Therefore, a full-time Probate Judge should not continue employment with a funeral home.
Theft By Special Advocates Treasurer Results In Disbarment
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today indefinitely suspended the law license of [an] Akron attorney...for professional misconduct arising from his theft of funds from the Summit County Court Appointed Special Advocates (CASA) Board while serving as treasurer of that board.
In a per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney], whose license has been under an interim suspension since January 2010 based on his guilty plea to a felony count of grand theft, violated the state attorney discipline rules that prohibit illegal acts that reflect adversely on a lawyer’s honesty, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaging in conduct that adversely reflects of an attorney’s fitness to practice law.
In setting the sanction for [his] violations, the Court balanced aggravating and mitigating factors in the case, including the facts that Muntean self-reported his misconduct and has made full restitution to CASA of the funds he took. The Court voted to impose an indefinite license suspension with credit for the 11 months [his] license has been under interim suspension. As a result, the earliest he would be eligible to apply for reinstatement is January 2012.
The court’s opinion was joined by Chief Justice Eric Brown and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred with the sanction of an indefinite suspension, but indicated that he would not credit [the attorney] with the months he has served under interim suspension.
The opinion is linked here. (Mike Frisch)