March 1, 2010
The Six C's (Not The Seven Seas)
The Arizona Disciplinary Commission agreed with a hearing officer and has proposed a public censure and probation for one year in a matter where the attorney had received but lost evidence in a homicide case. The evidence was the attorney's client shirt which was stained with the blood of the victim. The attorney also violated his duty of confidentiality by submitting to a defense interview about the circumstances of his receiving and losing the evidence as well as information from the client, who was not charged with homicde but rather with hindering the prosecution. The shirt was to be offered as evidence against the person charged with the homicide.
The attorney must complete a series of CLE courses as part of the probation. One specific course required is Candor Courtesy and Confidences: Common Courtroom Conundrums. (Mike Frisch)
"A Rare Combination Of Circumstances"
The New York Appellate Division for the Second Judicial Department imposed a public censure in a matter where the attorney had forged and caused to be notarized a document purportedly signed by a client. The court found significant mitigation:
In determining an appropriate measure of discipline to impose, the Grievance Committee notes that the respondent has no prior disciplinary history and has accepted full responsibility for his actions. The respondent submits that his actions were the result of a rare combination of circumstances, including the demands of an allegedly unreasonable client and his own personal health issues. The respondent has submitted letters from Isaac Cohen, M.D., his orthopedist, and Itzhak C. Haimovic, M.D., his neurologist, confirming his diagnosis of Parkinson's Disease. In addition, he has submitted letters from seven professional colleagues, including his law partner, attesting to his integrity and excellent reputation.
Balancing the respondent's lapse of judgment with his previously unblemished record, we conclude that a public censure is the appropriate discipline to impose in this case. (citation omitted)
Sanction For "Reluctant" Misappropriation Finding
The March 2010 edition of the California Bar Journal reports the following disciplinary sanction:
[An attorney] was suspended for two years, stayed, placed on two years of probation with a 30-day actual suspension and was ordered to take the MPRE within one year. The order took effect July 30, 2009.
The State Bar Court found that [the attorney] allowed the balance in her client trust account to drop below the required amount several times. She had received about $39,000 on behalf of her client and after fees and costs were deducted, she should have maintained a balance of $24,854.50 in her trust account.
Her husband, who also was her office manager, handled her firm’s business dealings, and without her knowledge, he used the account to pay personal and business expenses. [The attorney], who was the only authorized signatory on the account, wrote few checks and did not regularly use her trust account or reconcile bank statements.
Although the court found much of her client’s testimony not believable, it reluctantly found that [the attorney] committed acts of moral turpitude by allowing a misappropriation of funds. “She did not intend to do anything wrong but her gross negligence in handling her trust account during this time” requires a finding of moral turpitude, wrote bar court Judge Richard Honn.
[The attorney] has no discipline record, cooperated with the bar’s investigation and offered extensive testimony about her good character and substantial volunteer work.
February 28, 2010
Representation Of Incapacitated Client
A recent opinion of the Legal Ethics Committee of the District of Columbia Bar holds:
A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.
The opinion notes that such representation "can be difficult." (Mike Frisch)
Stanford Lawyer (Class of 1979) Heads Up Hollywood Negotiations
Posted by Jeff Lipshaw
I was flipping through the New York Times Sunday Business section this morning, and saw this article about the upcoming labor negotiations between the motion picture and television industry and the various unions and guilds (writers, directors, actors), complete with picture of my law school classmate, Carol Lombardini (left), the new president of the Alliance of Motion Picture and Television Producers.
Just another member of the moderately amazing Stanford Law School class of 1979, whose members have included, in addition to all the top flight lawyers, among other things, law professors, the dean of the University of Chicago law school (who hired Barack Obama), a deputy cabinet secretary, the publisher of a major newspaper, the State Department legal officer in Berlin responsible for liaison with Rudolf Hess in Spandau Prison, the CEO of one of the largest construction companies in the world, the winners of the 1979 Stanford Trivia Bowl, the Notre Dame athletic director, and the parents of two different University of Michigan undergrads named Matt.