Saturday, February 20, 2010
The Review Department of the California State Bar Court imposed a five-year stayed suspension with a four year actual suspension for "unethical behavior in four criminal cases." The misconduct involved obtaining a dental examination of a minor accused of sex assault, failure to provide exculpatory evidence and an improper closing argument. An appellate court had characterized the closing argument as "deceptive and reprehensible."
In mitigation, the attorney, who was a career prosecutor, presented "extraordinary" evidence of his good character. (Mike Frisch)
Posted by Jeff Lipshaw
As I mentioned to an e-mail correspondent who found a typo in The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Disciplinarity, I am a serial reviser, so I was fiddling today with the section that deals with the appropriateness of using metaphors from science or mathematics in either social sciences, humanities or daily life. One of those metaphors often is to the Heisenberg Uncertainty Principle (see Heisenberg pictured, left). For what it's worth, here's the little bit I inserted today in a footnote. I've eliminated the citation, but it is to Roger Penrose's book, The Emperor's New Mind, at pages 291-390 (the chapter entitled "Quantum Magic and Quantum Mystery"):
To the extent that people use the phrase "uncertainty principle" as a metaphor, I believe one meaning is that the act of measuring impacts the system being measured. So, for example, peer evaluation of classroom teaching is subject to a kind of "uncertainty principle" because the act of observation affects the teacher being observed.
Quantum mechanics involves the insight that microscopic bits of matter and energy, by virtue of their microscopic size, exhibit the tendencies of both particles and waves. A wave "spreads out" in a field and a particle is somewhere, but an electron or a photon appears to do both. The mathematics of quantum mechanics precisely and deterministically describes quantum states as weightings of possible positions of the particle in relation to the momentum space associated with the wave. At this point, any further explanation gets into far more detail than I want to provide, except to say that a problem arises when we, macroscopic beings, want to measure the quantum world, and must therefore translate a quantum concept of "amplitude" into a macroscopic concept of probability, which seem analogous (and, indeed, have a mathematical relationship) but are not the same.
Is it an effective metaphor or analogy? The answer is probably not. Position and momentum are complementary in quantum mechanics, meaning that the act of measuring imposes an absolute limit to our ability to know both precisely at the same time (the mathematical relation is ∆x + ∆p > h, where ∆x is the range of possible positions of the particle, ∆p is the range of possible momenta, and h is Planck's constant). While the "knowability floor" of Planck's constant is itself a tiny number (6.6 x 10-34 Joule seconds), it still puts real limits on our ability to know x and p at the same time. If, for example, we measure x so that we know the particle's position exactly (so ∆x is zero), then the value for ∆p will have to be at least h, and that will likely be enough not to know anything about what p actually is at the same time.
The candidate for an analogy here is MEASURING A QUANTUM STATE=OBSERVING A CLASS [or MEASURING A TEACHER]. Does the analogy help us understand why observing the class is problematic? Perhaps, but it is only in the broadest sense that measurement affects the thing being measured. The reasons for the effect in each case are very much different. For quantum mechanics, it is something about the mathematical relationships of micro-amplitudes to macro-probabilities; for classrooms, it is about the psychology of the teacher. Moreover, a quantum state must be made random by a measurement; a teacher need not be affected by observation at all! Finally, even macroscopic objects are subject to ∆x + ∆p > h, but because h is so small in relation to the size of any object we can actually observe, we can be very, very certain of both position and momentum.Notwithstanding whether the metaphor works, we nevertheless have come attribute a meaning to "uncertainty principle" outside of quantum mechanics along the lines of the one I have suggested.
(Heisenberg's involvement with nuclear research under the Third Reich is another subject, and his meeting with Niels Bohr in occupied Denmark in 1941 was the basis of Michael Frayn's play Copenhagen.) I invite comments whether I have correctly (in broad terms) explained the quantum mechanics!
The intersection between bar discipline and bar programs designed to assist attorneys who seek help for substance abuse issues is addressed in a recent report and recommendation of the Louisiana Attorney Disciplinary Board. The disciplinary matter involves charges of illegal cocaine use by an attorney employed by a law firm. Firm attorneys confronted the attorney. After consulting with the Bar's counseling program, firm lawyers and a bar counselor conducted an intervention where the lawyer was confronted about his drug use. He entered a 90 day inpatient treatment program. On his discharge, he agreed to a program of monitoring by the Bar's program with a provision that the program would report positive drug tests to the firm. There were such results and the firm was notified. Bar charges followed.
The board here rejected claims that the firm was acting as the agent of the bar program and was bound by rules of confidentiality that apply to the program. Further, the consent to disclose the positive results was found to not be coerced. Finally, the admissions that the attorney made at the intervention and thereafter were properly admitted in the bar proceeding.
The board also rejected as "unduly lenient" the recommendation of the Office of Disciplinary Counsel for a fully-deferred suspension. Rather, the board proposes a suspension for a year and a day.
One of the most frustrating matters I ever handled as a disciplinary prosecutor involved similar issues. I had to litigate the effectiveness of a waiver of confidentiality allowing access to information that the attorney had resumed drinking. The D.C. Bar opposed through its general counsel (the general counsel is a revolving door position held by bar insiders). The bar administration took the position that program confidentiality (even with a waiver) was a more significant interest than public protection from a clearly unfit attorney. The whole sad tale is told in a Board on Professional Responsibility report appended to a per curiam opinion of the Court of Appeals. In re Stone, 672 A.2d 1032 (D.C.1995).
Here, the board gets it right on that score. (Mike Frisch)
Friday, February 19, 2010
We recently reported that the North Carolina State Bar had filed a complaint alleging that a former Assistant United States attorney had practiced while suspended. The attorney recently filed an answer to the complaint that admits the allegations and contends that he "was deeply despondent and profoundly depressed" during the time set forth in the complaint. Further:
Defendant was aware that he was allowing his relationship with the North Carolina State Bar to deteriorate but he avoided the issue and could not bring himself to even open letters from the State Bar or take measures which could easily have preserved his license to practice in North Carolina. Defendant taught CLE courses as a federal prosecutor and taught seminars which easily could have provided most of the CLE requirements that were necessary to enable him to keep his license current; but, he was too despondent to make the bar aware of his work.
The answer alleges that he treated his depression with alcohol and "as a consequence" made false certifications to the Bar, that he was truthful in a deposition conducted by OPR and lost his marriage as a result. Further, he is now remarried and in treatment such that a recurrence is unlikely.
The attorney is represented by prominent lawyer Wade Smith in the bar matter. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has disbarred the attorney-defendant in high-profile Brooke Astor affair as a result of his criminal conviction. The court states:
On October 8, 2009, following a jury trial in Supreme Court, New York County, respondent was found guilty of scheme to defraud in the first degree (Penal Law § 190.65[b]), conspiracy in the fourth degree (Penal Law § 105.10), and forgery in the second degree (Penal Law § 170.10), all felonies, as well as conspiracy in the fifth degree (Penal Law § 105.05), a class A misdemeanor. On December 21, 2009, he was sentenced to a cumulative term of imprisonment of 1 to 3 years.
Respondent's conviction arose out of his participation in a scheme to defraud Brooke Astor. Respondent, with the assistance of her son, Anthony Marshall, looted Ms. Astor's estate during the period from approximately 2001 to 2007, when her mental capacity was diminished. Respondent was found guilty of forging a codicil to Ms. Astor's will, thereby giving Mr. Marshall the power to appoint co-executors and shifting some $5 million in estate costs from the $60 million residuary estate, over which Mr. Marshall had outright control under the terms of an earlier codicil, to a $60 million trust. Respondent was subsequently appointed co-executor of the trust by Mr. Marshall together with Mr. Marshall's wife.
The Disciplinary Committee now seeks an order striking respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(a) on the ground that he was automatically disbarred as a result of his conviction of a felony under New York law. Respondent's counsel has submitted a letter response asking this Court to stay its order until respondent's anticipated appeal of his criminal conviction is decided, a request the Committee opposes.
A conviction of a criminal offense classified as a felony under the laws of this state results in automatic disbarment (see Judiciary Law § 90[b] and [e]; Matter of Conroy, 309 AD2d 57 ). Thus, upon his conviction of three felonies, respondent ceased to be an attorney by operation of law (see Matter of Just, 38 AD3d 58  [scheme to defraud in the first degree]; Matter of Velella, 11 AD3d 50  [conspiracy in the fourth degree]; Matter of Postel, 165 AD2d 474  [inter alia, forgery in the second degree]).
Accordingly, the Committee's petition should be granted and respondent's name stricken from the roll of attorneys and counselors at law, effective nunc pro tunc to October 8, 2009, the date of conviction.
The Pennsylvania Supreme Court ordered a suspension of a year and a day after issuing a November 18,2009 order to show cause why a suspension of that length should not be imposed. The attorney had failed to respond to the show cause order.
The submissions attached to the court's order set forth a cautionary tale. The original misconduct resulted in a private reprimand. The attorney contended that the disciplinary system had no authority to sanction her, a position that was rejected by the court. The attorney took the jurisdictional claim to federal court, where the claims were dismissed with prejudice. The dismissal is now on appeal to the Third Circuit.
After the court rejected the jurisdictional argument, the attorney failed to appear for the private reprimand (which is administered in person). The attorney also failed to pay costs as ordered. As a result, disciplinary counsel recommended that the private reprimand be converted to a public censure and that the attorney be administratively suspended for failure to pay the costs.
The pleadings filed by the attorney and disciplinary counsel are attached to the court's order. A private reprimand becomes a suspension with fitness. (Mike Frisch)
Thursday, February 18, 2010
In a decision issued today, the Massachusetts Supreme Court affirmed most of the counts charging an attorney with a number of sex offenses. The court described the facts:
In 2004, the victim was an eighteen year old woman and a senior in high school. Through friends and family, she had known the defendant, an approximately fifty year old attorney, since she was twelve years old. In the months before the incident, the victim, who weighed approximately 119 pounds, was drinking frequently and had used cocaine five or six times, including an incident in December, 2003, where the defendant provided the cocaine. Beginning in December, 2003, the defendant also had made sexual overtures to the victim, which she rebuffed, sometimes laughingly. Several times she explained to the defendant that she had a boy friend.
The events at the center of this case took place on February 1 and 2, 2004. The victim attended two "Super Bowl" parties on February 1, and consumed alcoholic drinks at both. The defendant was present at the second party. There, he and the victim ingested cocaine twice. The defendant expressed interest in dating the victim but she declined. He invited the victim to his house for a party that same evening. Although the victim declined the invitation, she could not sleep because of her ingestion of cocaine and, at approximately 1 A.M. on February 2, she went to the defendant's house.
When she arrived, only the defendant was there. She consumed more alcohol, cocaine, and marijuana, all provided by the defendant. The victim testified that the pair stayed up all night talking. In the morning, the victim went to school, but she left twice, each time returning to the defendant's house. During the first time she returned, she drank a beer and used cocaine. The second time she returned, she was "still ... drunk and high."
During this second visit, she drank more beer and ingested more cocaine. The defendant again made advances toward the victim that she rebuffed. The defendant served her wine and the victim had three to four glasses. Because of the cocaine, the victim was not hungry and had almost nothing to eat that day; the last food she had eaten was when she was at the first "Super Bowl" party the night before. Moreover, she consumed approximately twelve beers at the defendant's house on February 2.
After the victim consumed the wine, the pair retreated to the defendant's bedroom, where the defendant kept cocaine. The victim testified that while in the bedroom she did not remember what happened but she realized her "clothes came off" because the defendant was kissing her vagina. When she tried to move away he told her to "do another line" of cocaine, which she did. She stated that she sat back down on the bed and "remember[ed] being in [the defendant's] bed [and] putting my clothes back on a few times, and then them coming off again." She did not recall how they came off, but remembered putting them back on. The defendant also sucked on her breasts, and licked and touched her vagina and penetrated it with his finger. She testified that she told him, "No. We're just friends."
At approximately 9 P.M., three of the victim's friends arrived at the defendant's house, went up to the bedroom, knocked on the door, and told the victim she had to leave with them. Although the victim answered that she was coming, when she did not, one friend opened the door. The friends testified that the victim was dirty, her hair in "knots," and messier than if she had just been sleeping. She smelled of alcohol, seemed to be under the influence of drugs or alcohol, was slurring her words, and "seemed like she didn't know what was going on or why they were there." The friends had to help her put her shirt on. They saw her jaw moving in a peculiar manner although there were no words coming out. The victim was wobbly and unsteady on her feet and her friends helped her get down the stairs from the defendant's bedroom and had to help her into their vehicle. Her friends drove her to her father's house.
The victim's father testified that, when she arrived, she looked like a "zombie," she was screaming and crying and unable to focus. He also noticed her "involuntary jaw movement" and that she could not speak. Indeed, the victim testified that for a day or so after she left the defendant's house she could not eat because her mouth was sore from her chewing on her mouth and lips, something she did when she ingested cocaine. Her father brought her to a police station. The officer who interviewed her the evening of February 2 testified that she was intoxicated, crying, and upset. The victim had no clear memory of what she told this officer.
The court reversed the conviction on charges of drugging for purposes of unlawful sexual intercourse. The case is Commonwealth v. LeBlanc.
The web page of the Massachusetts Board of Bar Overseers indicates that the attorney was suspended in January 2006. (Mike Frisch)
The Florida Supreme Court disapproved a referee's report as well as the parties' stipulation and denied the reinstatement petition of an attorney. Justice Pariente dissented, concluding that the failure to pay costs and restitution in the suspension matter was "[t]he only apparent reason for the denial..." She credits the conclusion that the petitioner was financially unable to comply and had not acted in bad faith.
The justice would grant reinstatement with compliance with a payment plan as a condition of probation. Justice Perry concurred.
To make matters worse, the court imposed costs against the petitioner for $1,307.65 in connection with the petition. (Mike Frisch)
The Wisconsin Supreme Court has revoked the license of an attorney who had previously been disciplined four times. The attorney had represented a husband in criminal charges arising from allegations of domestic violence brought by a wife. the husband was acquitted of the charges. The next day, the attorney filed a civil suit against the wife claiming that she had perjured herself in the criminal case. The suit was found to be instituted for an improper purpose. Additional, the attorney made claims about the post-verdict behavior of the jurors in the criminal case that were found to be false. The court noted:
The referee commented extensively on what he termed Attorney Eisenberg's lack of candor throughout the disciplinary proceeding. The referee found "Mr. Eisenberg's testimony under oath at various times to be deliberately evasive; inconsistent and contradictory; and false, incredible and impossible to believe." The referee was particularly troubled by Attorney Eisenberg's claim that one or more jurors had contacted him the morning following the acquittal verdict in the criminal case:
But the most preposterous testimony by Mr. Eisenberg relates to his account about a juror or two jurors contacting him on the morning following the acquittal verdict and claiming that the [W.D.] criminal jury stormed/marched into Judge Koschnick's chambers demanding that [M.D.] be charged with perjury. According to Attorney Wilcox, that afternoon Mr. Eisenberg told the family court commissioner at a scheduling conference in the  divorce action that "a juror" had called him that morning and when told about the new lawsuit he was filing, the juror purportedly responded "good, she deserves it." The following month, when Mr. Eisenberg spoke to a news reporter for the Daily Jefferson County Union, the news reporter testified that Mr. Eisenberg stated "a juror" called him. Three months later in a court argument before Judge Hue, Mr. Eisenberg stated: " . . . The jury came back with a not guilty, and the jury marched into . . . chambers and suggested to the judge that M.D. should be criminally charged. I found out about it from either the jury foreman or one of the jurors calling me and telling me they had gone in and asked why this woman wasn't charged with a criminal slander or perjury or something. . . . "
The next reference to this alleged jury reaction appears in Mr. Eisenberg's testimony before Judge Gram on December 23, 2003, during the special proceedings. Initially, Mr. Eisenberg testified about a phone call from a woman juror, but during cross-examination, he recalled for the first time that two jurors called him on the morning following the acquittal complaining about [M.D.]'s alleged perjury and wanting Mr. Eisenberg to do something about it.
At this disciplinary hearing, Mr. Eisenberg totally abandoned the single juror contact version of this event. He testified that the morning after the acquittal when he was in his office, he "got two phone calls, one from a woman, who did not want to give me her name, and I believe there was a man who called. . . . I was extremely impressed with the fact that I got calls from jurors. That doesn't happen all the time. . . . " This referee is skeptical of the change in Mr. Eisenberg's recollection from a phone contact from a single juror to two phone calls from two jurors.
Next, if two separate jurors took the trouble to locate and speak by phone with Mr. Eisenberg about the jury marching/storming into Judge Koschnick's chambers, allegedly complaining about M.D. committing perjury and eliciting Mr. Eisenberg's help, then why did both jurors refuse to give Mr. Eisenberg their names? . . . This referee is skeptical about why two jurors go to the trouble of contacting Mr. Eisenberg in the first instance and then both refuse to identify themselves.
However, if these two jurors contacted Mr. Eisenberg to report this extraordinary event, but refused to reveal their names, is it not reasonable to expect that Mr. Eisenberg would contact Judge Koschnick's court personnel to verify the accuracy of this account? This is particularly true when you consider that Mr. Eisenberg had just spent the previous two days in trial before that court and on the afternoon of the alleged two juror calls, he was at the Jefferson County Courthouse to attend a pre-trial conference in the  divorce proceedings. However, Mr. Eisenberg made no such contact. And if this juror contact occurred, is it not reasonable to expect an experienced criminal lawyer to report this to the Jefferson County District Attorney rather than contacting the editor of the local newspaper?
However, any questions about this entire incident are quickly resolved when one considers the testimony of Judge Koschnick himself. Judge Koschnick testified that as is his custom, he went to the jury room after the verdict in the [W.D.] criminal action to inquire about their general jury experience. He said one juror expressed concern to him that the acquittal verdict not result in any type of prosecution of [M.D.], which the juror did not want to see happen. Judge Koschnick was unequivocal that there were no jurors storming or marching into his chambers——something that neither he nor his bailiff would ever allow. There was no claim by any juror that [M.D.] had lied nor any request or demand for any criminal action against [M.D.]. In fact, Judge Koschnick testified that seven years later he still recalls he "was outraged" when he read Mr. Eisenberg's version of the event as reported in the local paper. Judge Koschnick's testimony on this entire subject was very clear and very credible.
Therefore, either you have a completely fabricated story by two separate but unidentified jurors, which Mr. Eisenberg recklessly repeats to a family court commissioner, a newspaper reporter and a judge or you have a completely fabricated story by Mr. Eisenberg. There is no doubt in this referee's mind that the fabrication was the product of Mr. Eisenberg, under oath, in both the [W.D.] special proceeding and this disciplinary proceeding.
Counsel defending the bar discipline matter argued that his client had been singled out for sanction where others would not be charged, which he called the "Eisenberg Effect." The response:
The OLR suggests that if there is in fact an "Eisenberg Effect," it is Attorney Eisenberg's abusive conduct and disrespect for other parties, other lawyers, and the legal system which leads to sanctions.
The New Jersey Appellate Division has held that an agreement between an attorney and three defendants (two individuals and a corporation) that the attorney would not represent parties in litigation adverse to the defendants was void.
The agreement was entered into while the attorney was negotiating with defendants on behalf of clients and also was tied to a provision by which the defendants waived conflict of interest claims against the attorney. The attorney had previously provided legal services to an entity in which some of the defendants were principals.
The attorney then sought a court determination that the agreement violated New Jersey RPC 5.6(b)(restriction on right to practice) in order to bring suit against a corporation owned by the individual defendants.
The court here held the agreement void as a violation of public policy and refused to enforce it on grounds of equitable estoppel. The ethical provision exists for the benefit of the public and "that purpose would be thwarted if equitable estoppel principles allowed the [agreement] to stand." (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion concerning the inclusion of an area of practice or specialization in a law firm name.
Opinion 2010-1 addresses the following question: “Is it proper for a lawyer to name a law firm the lawyer’s surname followed by the words Intellectual Property or the initials IP as an abbreviation for intellectual property?”
The opinion finds that naming a law firm in this way is improper. Professional Conduct and Supreme Court rules “do not authorize the inclusion of an area of practice or specialization in a law firm name and Prof. Cond. Rule 7.5 specifically does not allow a trade name,” the opinion states.
The opinion also noted that Supreme Court rules require that the name of a law firm formed under a corporate structure must include the “proper descriptive designation required by law such as LLC or LLP.”
This link should take you to the opinion. The most pertinent U.S.Supreme Court precedent on the state bar's regulatory authority over letterhead designations is ARDC v. Peel, linked here. (Mike Frisch)
Wednesday, February 17, 2010
A Hearing Panel of the Vermont Professional Responsibility Board recently imposed a six month suspension of an attorney who was employed by a law firm for failing to tell her employer about an ongoing relationship with the spouse of a firm client. The firm represented the wife in a divorce case that involved two minor children. The attorney met the husband at a gym and they began to date.
At the outset, the attorney was unaware of the firm's representation of the wife. When she learned of the firm's involvement, she sought ethical guidance, disclosed the relationship to the partner handling the case and offered to be screened from the representation. The partner advised the attorney to either end the relationship or leave the firm. The attorney agreed to cease dating the husband and stayed with the firm. The partner advised the client of the situation (assuring the client that the relationship was over) and, after consulting other counsel, the client agreed to continue with the firm as counsel.
The attorney and the husband resumed the relationship (something to do with an order of chocolates) and were sharing the master bedroom of the marital home, a fact that was learned by the wife's family. The attorney was terminated and prosecuted on a charge of deceiving the firm. The hearing panel found misconduct and noted that the attorney failed to recognize the ethical violation. (Mike Frisch)
An Arizona Hearing Officer has recommended a censure and one year of probation in a disciplinary matter imvolving two unrelated counts. The attorney was serving as personal representative and trustee of a trust. He continued to serve in that capacity after closing his law office while suffering from depression. He confused his personal money market account with the trust accounts and negligently missapropriated entrusted funds. He also failed to personally appear for a court hearing, although he participated by telephone. When he was informed of the problem by his bank, he self-reported the conduct the Bar and made full restitution.
The second count involved conduct after he had closed his law office and moved to Bisbee, Arizona. He was involved in a public confrontation with six or seven people in Bisbee and drew a weapon, contending that he had been threatened by a person with a knife.
Bar Counsel concluded that the trust violations were the more serious matters as the attorney had pled to a misdemeanor and completed the conditions imposed in the criminal case. There were findings that the attorney was in a "substantial depressive episode" at the time of both matters. He also had a 28 year "distinguihed legal career" with no prior discipline. (Mike Frisch)
We do not often see bar discipline imposed on an attorney for misconduct in connection with serving as an expert witness. However, it does happen as evidenced by this recent post on the web page of the Virginia State Bar:
On December 11, 2009, the Virginia State Bar Fourth District Committee-Section I issued a public reprimand to [an attorney] for violating disciplinary rules that govern candor toward the tribunal and misconduct that reflects adversely on a lawyer's fitness to practice. While testifying as an expert witness before the Board of Immigration Appeals, [the attorney] stated under oath that a Virginia State Bar disciplinary complaint against her had been dismissed when, in fact, it had resulted in a private reprimand, and she also misrepresented that she had not been represented by counsel in the disciplinary proceeding, when she actually was.
In a matter that had its origins in discipline imposed in New York in 1997, the Maryland Court of Appeals rejected a plea for more a "different and more lenient sanction" as reciprocal discipline and imposed an indefinite suspension with reinstatement conditioned upon reinstatement in New York. The court acknowledged that the New York record with respect to the original suspension was sparse, but noted that New York had denied his petition for reinstatement in 2003 that was denied. Later, bar charges resulted in findings that he had neglected the appeal of a murder conviction and accepted a retainer that he converted for his own use. A three-year suspension with fitness was imposed nunc pro tunc. Reinstatement petitions have been denied after the order of suspension.
The court here found no basis to impose a lesser sanction than New York and concluded that an indefinite suspension was the equivalent discipline. (Mike Frisch)
Posted by Jeff Lipshaw
1. Even though Douglas Hofstadter did not address the issue in the famous Gödel, Escher, Bach, I had always believed that the "how to throw away a garbage can" was the world's most practical example of recursiveness. The Cambridge DPW has, in the spirit of the solution of Fermat's Last Theorem, solved this for me. To throw away a garbage can, you place it upside down.
2. When we lived in Indianapolis, we knew the Simon family, the founders and substantial owners of Simon Property Group, the largest mall owner in the known universe. Apparently, Simon aspires now to be Buy 'N Large.
3. As stories continue to pile up about Amy Bishop, the alleged Huntsville tenure shooter, I keep thinking about the really scary 1950's movie, The Bad Seed.
Tuesday, February 16, 2010
The South Carolina Supreme Court imposed a definite suspension of one year in a matter involving improper real estate closings and a conflict of interest in representing a driver and passenger (who are cousins) in an automobile collision. As to the conflict and related neglect:
We find that Respondent's actions in the Longwood matter violated the rules on conflicts of interest as well as the rules on competence and diligence. Longwood [the passenger] and Sumter [the driver] made a full disclosure to Respondent regarding the accident. Respondent should have informed Sumter and Longwood of the potential conflict of interest before he agreed to represent both of them. Respondent clearly neglected this matter by filing Longwood's suit after the statute of limitations had expired and by filing it against Sumter in direct contravention to Longwood's instructions. We give no credence to Respondent's assertion that Longwood refused to come to his office to review the pleadings, for it was Respondent's responsibility to ensure that his client review the pleadings before the eve of the expiration of the statute of limitations.
The court rejected one of the charges in the real estate closings but found violations in other matters:
...we find that Respondent violated the Rules of Professional Conduct in the Cantey closing. We agree with the Panel's findings that Respondent allowed a non-lawyer to conduct a real estate closing and sign his name to a HUD statement. We find that Respondent's and Stallings' [his secretary and sister] assertion regarding a prior "dry closing" lacks credibility. Neither Respondent nor Stallings mentioned a dry closing in their testimony at the Notice to Appear hearing. Cantey unequivocally testified that she went to Respondent's office only one time, Respondent was not present, and there had been no dry closing. Regardless of any purported dry closing, Respondent allowed Stallings to notarize a document indicating that Respondent was present on October 2, when in fact, he was not.
In our view, the Price/Wright matter is extremely troubling and is the most serious of the allegations. As stated above, we find Cantey's testimony that Respondent was not present at her closing is credible. Thus, Respondent would likely not be in a position to identify Amos Price. Moreover, one could reasonably question why Wright would provide false testimony, before the Panel and at his guilty plea, by asserting that he brought pre-signed documents to the closing. In both proceedings, Wright's testimony was consistent, and he openly admitted his actions. Wright did not shift blame or implicate anyone but himself and consistently maintained that neither Respondent nor Stallings was involved in or aware of his fraudulent scheme to assume Amos Price's identity. In our view, Stallings' and Respondent's version of events is problematic, yet we must examine the evidence through the lens of the clear and convincing standard.
Applying this heightened standard, we find that ODC did not meet its burden of proving the allegation that Respondent actively participated in this fraudulent scheme. Neither Respondent nor Stallings was ever indicted for any offense arising out of this matter, and the only evidence ODC presented in support of this allegation was Wright's testimony. In our view, this does not rise to a level of clear and convincing evidence that Respondent was an active participant in the fraud and forgeries. While we do not overlook or disregard the undisputed fact that serious criminal conduct occurred in Respondent's office, we do not find that ODC established Respondent’s knowing participation in the fraudulent scheme. We view Respondent’s conduct in line with his general slack and casual approach to real estate closings, perhaps explaining Wright's choice of Respondent as the closing attorney for his fraudulent scheme.
Finally, we agree with the Panel's finding that the numerous inaccurate closing documents reflect Respondent's loose approach in the handling of real estate closings. The HUD statements and disbursement sheets reflected incorrect, inaccurate, and sometimes missing important information. This court takes real estate transactions very seriously, and we have consistently issued harsh sanctions against attorneys who do not conduct closings in accordance with proper procedures. (citations omitted) Moreover, not only did Respondent's files indicate failure to follow proper closing procedures, they also reflected failure to properly maintain his trust account. In our view, this evidence establishes a consistent pattern of negligence, inattention, failure to supervise, and an overall cavalier attitude and approach to real estate transactions, his client's interests, and the practice of law.
As to sanction:
We hold that a sanction of a one year definite suspension is warranted in light of Respondent's misconduct, especially his neglect in supervising real estate transactions. In issuing this sanction, we especially considered the fact that serious criminal conduct was so easily perpetrated in his office while under his watch and control. (citations omitted)
Respondent has exhibited a pattern of a careless approach to real estate closings. Accordingly, we suspend Respondent for one year effective the date of this opinion and direct Respondent to pay the costs of these proceedings. We further order Respondent to participate in the LEAP program.
In a recent opinion, the Michigan Attorney Discipline Board vacated a panel's order of probation and ordered an attorney suspended for one year;
Following an emotionally charged courtroom confrontation with the opposing party in a civil case, respondent used his cell phone to call the opposing party, a lawyer. Receiving no answer, respondent left a recorded message which, while brief, was mocking, profane and personally insulting. Neither the making of the phone call nor the contents of the recorded message were charged as professional misconduct in the discipline proceedings...However, respondent pleaded no contest to the charges in the complaint that, when questioned about his actions, he filed a false affidavit and gave sworn testimony denying he had made the phone call. further, respondent pleaded no contest to the charge that he counseled his client to sign a false affidavit and to give false testimony to the court that it was the client, not respondent, who had made the call and left the recorded message.
The attorney had sought probation asserting that an impairment had substantially contributed to his misconduct. His expert testified that he suffered from major depression that "can cause significant dysfunction and self-defeating behavior." The board found the probation question was "not an easy one..." However, the statements of respondent's medical expert did not "assur[e] that an order of probation would be in the public interest."
A concurring opinion would find that the probation eligibility rules "have little, if any, application to a case such as this." The rule relates to an attorney's impaired capacity to practice law, not to
"be applied to someone's criminal conduct." (Mike Frisch)
The New York State Commission on Judicial Conduct accepted an agreed statement and imposed an admonition of a justice of the Rensselaer Supreme Court for misconduct in his campaign for office. The sent approximately 7,000 letters to addresses provided to him by the New York State Rifle and Pistol Association. The letters misrepresented that he would "still be responsible for all pistol permits" in the county and "improperly conveyed that he would favorably consider future applications for and amendments to pistol permits." The letter advised "fellow permit holder[s]" that "[m]y pistol permit is very important to me as I know yours is to you."
The commission found that the letters conveyed bias in favor of pistol permit holders and misrepresented that the judge was solely responsible for county permits. The justice had a 2004 admonition for commenting publicly about a pending case when he was seeking reelection. (Mike Frisch)
The Louisiana Supreme Court affirmed findings of ethical misconduct in two consolidated matters but declined to impose the sanction of permanent disbarment that had been proposed by its Disciplinary Board. Although the misconduct involved an array of violations including, among other things, neglect, failure to supervise non-lawyer employees, forgery and trust account violations, the court concluded:
Although any instance of conversion is serious misconduct, it is well settled that we do not impose permanent disbarment lightly. Rather, permanent disbarment is reserved for those cases where the respondent's conduct convincingly demonstates that he does not possess the requisite moral fitness to practice law in this state, thereby making it highly unlikely readmission would ever be granted....Based on the record before us, we do not believe respondent's conduct rises to this level.