Thursday, March 31, 2011

Disclose, Disclose, Disclose

An attorney admitted in 2009 resigned from and was disbarred by the New York Appellate Division for the Third Judicial Department. He had been "charged with failing to fully disclose his criminal record on his application for admission, among other things."

The attorney resides in London, England. (Mike Frisch)

March 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure Too Light

The New Jersey Supreme Court rejected a proposed censure recommended by the Disciplinary Board in favor of a three-month suspension.

The attorney had negligently misappropriated entrusted funds. Bad enough. He had compounded the misconduct by submitted false evidence about the escrow shortfall to disciplinary authorities. Shortly thereafter, he came clean, claiming that he had "panicked."

A minority of the board favored the suspension imposed by the court, which had ordered the attorney to show cause why greater discipline than a censure should not be imposed.

Note that the court's order appears at the end of the board's report. (Mike Frisch)

March 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 30, 2011

Gender-Based Epithet Draws Censure

An attorney who, among other things, referred to a female judge with a four-letter word that begins with a "c" and ends with a "t" in the course of negotiating a plea deal with prosecutors, was publicly censured by a Colorado hearing board.

The underlying case involved DUI charges against the attorney's client. The attorney had harsh words with court staff in a series of phone calls over the procedure for vacating a hearing scheduled later that day. He sought to speak to the judge directly and was advised that he could not do so. The judge later called him to confront him about his behavior but the two did not speak. A stayed bench warrant was issued for the client.

The attorney called a staffer to apologize the following day.

The hearing board found the attorney's treatment of court staff was "ill mannered" and "impolite" but that he had a substantial purpose other than to embarrass, delay or burden the staff. He was trying to obtain relief for his client.

The attorney later met with the prosecutor to discuss a possible plea agreement in the case. He expressed his intent to file a motion to recuse the judge: "Respondent listed his reasons for seeking her recusal, chief among them his belief that the judge was biased against him and his client, after which he launched into a discussion of his history with the judge." The offending remarks were in the course of the discussion.

They then appeared before the judge: "...accounts...differ as to the tone, mood, and aspect of the colloquy between Respondent and [the judge]. While no one present during the hearing would characterize their dialogue as cordial, reactions otherwise run the gamut." The hearing board declined to find that the in-court conduct violated any ethics rule.

As to the slur (he also had called the judge an "idiot."), the attorney claimed First Amendment protection:

...[he] argues that his remark was not a statement of fact, but rather an idea or an opinion that is incapable of being proved false...[his] slur was nothing more than emotive language designed to convey disgust, disdain, and loathing-- the essense of subjective opinion.

The hearing board rejected the contention, noting it raised an issue of first impression in Colorado. The board discusses a number of cases from other jurisdictions in rejecting the claim of protected speech.

The board concluded that the attorney's "lack of civility to court staff, intemperate behavior during a hearing, [and] use of a gender-based epithet in the course of representing a client" did not violate Rules 4.4(a), 3.5(d) or 8.4(d). However, the slur did violate Rule 8.4(g), which prohibits conduct that exhibits bias or prejudice in the course of representing a client. (Mike Frisch)

March 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Eight Is Enough

A Colorado hearing board imposed a two-year suspension of an attorney who had "failed to comply  with a court order to pay 'retroactive child support' and post-majority child support to his son over a period of approximately eighteen years." He had twice been held in contempt and a warrant for his arrest was issued. He also falsely represented on his attorney registration statements on eight occasions that he was not under an order to pay child support. (Mike Frisch)

March 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege And Girl Scouts

The Oklahoma Supreme Court has held that the attorney-client privilege did not prohibit disclosure of otherwise confidential information from counsel to an entity client to an entity created by a merger. The facts:

The defendant/appellant Marilyn Barringer-Thomson (Attorney) is an attorney who represented Girl Scouts-Sooner Council, Inc. (Sooner) on employee severance and other matters related to employees of Sooner. Subsequently, Sooner merged with Girl Scouts-Red Lands Council, Inc. (Red Lands) and the surviving corporation is the plaintiff/appellee, Girl Scouts-Western Oklahoma, Inc. (Western). Western filed a replevin action to obtain all Sooner files and documents, including confidential employee severance agreements, in the possession of Attorney and now owned by Western as a result of the merger. The petition recited that the documents sought contained details of agreements between Sooner and its former employees for which Western is now responsible as Sooner's successor in interest. Attorney objected, claiming attorney-client privilege and attorney work product. Western asserted that the attorney-client privilege transferred to it as a result of the merger. Both sides filed motions for summary judgment and the trial judge granted summary judgment in favor of Western. Attorney appealed and we granted her motion to retain the case.  

The court concluded:

 The attorney-client privilege belongs to the client and not to the lawyer, and it may be waived only by the client...if the client is a corporation, the privilege may be claimed by the successor, trustee, or similar representative.This is in accord with Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343,348-49, 105 S.Ct. 1986, 1991, 85 L.Ed.2d 372 (1985). There, the Supreme Court stated that the power of a solvent corporation to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors. When control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well. New managers installed as a result of a merger, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors. The displaced managers may not assert the privilege over the wishes of current management. Weintraub held that the trustee in bankruptcy of an insolvent corporation had the power to waive the corporation's attorney-client privilege for pre-bankruptcy communications.

To the same effect is Tekni-Plex, Inc. v. Meyer and Landis, 674 N.E.2d 663 (NY 1996). Tekni-Plex merged into TP Acquisitions, which became the surviving corporation. The merger agreement conveyed all of the assets, rights and liabilities of Tekni-Plex. The merger agreement contained warranties by Tang, the owner of Tekni-Plex, that Tekni-Plex was in full environmental compliance, and Tang indemnified TP against loss as a result of breach of the warranties. TP Acquisition later renamed itself Tekni-Plex, Inc. (new Tekni-Plex). New Tekni-Plex obtained arbitration against Tang for breach of warranties of environmental compliance. The law firm representing Tang in the arbitration had represented Tekni-Plex and Tang on environmental compliance matters and also represented them in the merger transaction. New Tekni-Plex moved to disqualify law firm and, among other things, sought an order directing law firm to return to new Tekni-Plex all of the files in the law firm's possession concerning its prior legal representation of Tekni-Plex.

The New York Court of Appeals held that where the successor corporation continued the business operations of the pre-merger entity, ownership of the law firm's files regarding its pre-merger representation on environmental issues passed to the successor, as did control of the attorney-client privilege attached thereto. Thus, ownership of the law firm's files regarding its pre-merger representation of Tekni-Plex on environmental compliance matters passed to the management of new Tekni-Plex. The court held that the privilege did not pass on files regarding the merger transactions because the arbitration arose from representations made in the merger agreement.

 The court concluded that it was necessary for new Tekni-Plex to have the right to invoke the pre-merger attorney-client relationship if it should have to prosecute or defend against third-party suits involving the assets, rights or liabilities that it assumed from Tekni-Plex.

We find the reasoning in Weintraub and Tekni-Plex persuasive. Tekni-Plex holds that where the successor corporation carries on the business and assumes managerial responsibilities, ownership of a lawyer's files regarding its pre-merger representation of a corporation passes to the management of the successor corporation. In the present matter, plaintiff's evidentiary materials show that the business of both Sooner and Red Lands is being continued by Western. Western has assumed Sooner's rights and liabilities and may have to prosecute or defend third-party suits involving those rights and liabilities. Attorney did not represent Sooner in the merger transaction and the materials sought from attorney are not materials regarding the merger transaction itself.

 Sooner did not exempt or exclude confidential or any other materials from the merger agreement; it adopted a merger agreement that transferred all assets, properties and privileges to the surviving corporation. Ownership of Sooner's assets, as well as its attorney-client privilege, has now transferred to Western by operation of law as a result of the merger. To allow Attorney to assert Sooner's attorney-client post-merger would be in derogation of the merger agreement transferring ownership to Western.

(Mike Frisch)

March 30, 2011 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 29, 2011

Cocaine, Cooking And Reinstatement

The New York Appellate Division for the First Judicial Department imposed a three-year suspension of an attorney, with credit for time served since 2004. As a result, the attorney was reinstated.

 The misconduct:

In 1999, while still practicing law, respondent bought a building with a restaurant, which he named Chameleon. In late 2000, respondent started to cook at the restaurant at night while practicing law during the day. In early 2003, Victor Maldonato began coming to Chameleon's bar and offered respondent cocaine, which he accepted. Over time, respondent's drug use escalated and Victor started to sell drugs on the premises, allegedly soliciting sales inside Chameleon and making them outside. Respondent claims that he never profited from these sales.

As his addiction worsened, respondent allegedly realized that his life had become unmanageable and he tried to sell Chameleon. In September 2003, he opened a second restaurant called Onyx, where he was executive chef. In early 2004, before the proposed sale of Chameleon could be closed, the police raided the restaurant. Respondent was arrested a few weeks later.

On November 9, 2004, respondent pleaded guilty to the sixth count of an indictment accusing him and Dominic Sclafani of criminal sale of a controlled substance in the third degree [Penal Law § 220.39(1)], a class B felony.

The attorney was disbarred as a result of the conviction. The conviction was later vacated and the felony charges were dismissed. The attorney then sought immediate reinstatement.

As to sanction:

Contrary to the Hearing Panel's finding, when respondent testified before the Committee he patently recanted this admission [in the criminal case]. When asked if he knew Sclafani, respondent replied that he was "a patron of the restaurant." When asked if he sold or attempted to sell a controlled substance with Sclafani on February 24, 2004, he replied: "No, I did not. No, I did not." When asked if Sclafani attempted to sell a controlled substance that day, respondent replied: "I don't know."

These responses were part and parcel of respondent's attempt to distance himself from the admission at his allocution that he and Sclafani knowingly and unlawfully sold cocaine to a police officer by claiming that he only felt responsible for the drug sales because he allowed them to occur in his bar. Although respondent admitted that Victor had brought his friends to the bar and it "became a haven for people hanging out buying drugs, doing drugs", and that Victor sold drugs, respondent repeatedly denied that he himself was involved in selling the drugs. Respondent also denied knowing whether Victor and Kjiel Lucas, individually or in concert, sold a controlled substance in the bar on December 16, 2003, December 30, 2003, and February 23, 2004, January 14, 2004 and February 24, 2004, as charged in counts one through five and seven of the indictment. He similarly denied selling a controlled substance with Lucas on February 25, 2004 and March 9, 2004, as charged in counts eight, nine, ten and eleven of the indictment. Indeed, respondent denied knowing Lucas and testified that the police just "sort of linked" his name to Lucas in the counts charging the two of them with sales.

By deliberately recanting his plea and dissembling, under oath during a deposition before the Committee, his role in the drug activities that took place in his bar, respondent deliberately and intentionally engaged in deception and failed to cooperate with the Committee...

As to the appropriate sanction, respondent has not practiced law since at least November 9, 2004, the date he pleaded guilty to a drug felony, over six years ago. After completing an intensive drug rehabilitation program, he now stands convicted of a misdemeanor offense and remains drug free. Respondent has presented substantial and impressive evidence that he has successfully turned his life around and that he is fit to resume the practice of law. In mitigation, respondent testified that subsequent to his completion of the ASPIRE drug treatment program he sold his interest in Onyx and opened a successful, family-style sandwich shop in the Union Square area. Respondent created a not-for-profit organization providing work training at that shop for older high school students; he provides assistance to recovering drug addicts through Beth Israel Hospital; he has provided free meals to the homeless during the holiday season, and he has engaged in other community activities.

In addition, at the hearing, Donna Boundy of the Daytop drug rehab program testified that respondent was a "stand out," that he had a great attitude, was remorseful and motivated, that he was given great trust by the program insofar as he was given the responsibility of escorting other residents outside the facility, and that during a kitchen incident, respondent attempted to spare other residents from any injury by spilling sauce over himself instead. Numerous character letters were also submitted noting respondent's strong work ethic and teaching skills, and that respondent has included his shop in the internship/mentoring program, as well as respondent's involvement as a guest speaker and panelist at student events and competitions.

Given the passage of time and these exceptional mitigating circumstances, the Hearing Panel's recommendation that respondent be suspended nunc pro tunc from November 9, 2004, and that his suspension should be limited to "time served," is appropriate (see Matter of Keiser, 304 AD2d 96 [2003]). Notwithstanding petitioner's troubling and disingenuous recantation and our belief that Charges 2 and 3 should also be sustained, in light of the present posture of this matter, the Hearing Panel is correct that it would serve no purpose to further delay respondent's reinstatement by requiring further proceedings...

(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Charged With Forgery In Nominating Petition

The web page of the Pennsylvania Disciplinary Board reports that an attorney was suspended on an interim basis as a result of a criminal conviction.

DailyTimes reports on the charges:

Magisterial District Judge David J. Murphy was arrested Monday on charges he had a hand in forging signatures on his nominating petition for re-election, according to Delaware County District Attorney G. Michael Green.

Murphy, 57, of Scott Road, Aston, along with Deborah West, 53, of the first block Vernon Lane, Rose Valley, were both charged Monday with criminal wrongdoing in connection with his successful re-election bid last year.

“Usually, the candidate is not involved at all and has no knowledge of (the forged signatures). But here, (Murphy) did have knowledge. He actually participated,” said Green during a press conference Monday announcing the arrests.

“These charges stem from each of the defendants participating in the forging of signatures on Mr. Murphy’s nominating petitions for the magisterial judgeship position he currently holds.”

A handwriting expert brought in by the D.A.’s office “determined positive matches on the handwriting samples of David Murphy and Deborah West compared to the petitions submitted,” according to officials.

Both West and Murphy are facing charges including multiple felony counts of forgery, identity theft and conspiracy. He is facing added charges of solicitation, as well as violations of the election law.

The charges allege that 64 signatures were forged on Murphy’s nominating petitions for his election last year. The forgeries even included misspelling a street where those residents lived, according to the affidavit of probable cause.

Authorities said four of the people whose signatures were forged lived on “Cashel Drive” in Aston. “Their names and forged signatures appear with the street named ‘Cashell Drive.’”

Murphy — a Democrat turned Republican — was re-elected to his post Nov. 3, 2009. However, he hasn’t been handling the duties since Aug. 26, when the allegations of illegalities involving the nominating petitions first surfaced triggering a probe by the D.A.’s special prosecutions unit.

Note that the web page indicates a conviction and that the article indicates that a plea of not guilty was entered. (Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Jail Time Sufficient

The New York Appellate Division for the Fourth Judicial Department vacated an order imposing a 30 day imprisonment for criminal contempt of court. The attorney had continued to practice while suspended.

The reason for the court's decision was not forgiveness. Rather, the attorney had been found guilty of grand larcery and sentenced to an indeterminate prison term of 1 1/3 to 4 years.

Inasmuch as respondent has been continuously incarecerated since his arrest in September 2009, and will likely remain incarcerated for an additional period of at least one year, the sentence of imprisonment previously imposed for his contempt of court is vacated and respondent is resentenced to an unconditional discharge.

The link above takes you to the court's web page. The case is Matter of Marmor.(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Liability For Failure To Train

A 5-4 United States Supreme Court has held that the New Orleans District Attorney's office cannot be held liable for failure to train prosecutors in their Brady obligations when there is a single violation of disclosure obligations. The unethical behavior by the prosecutor sent an innocent man to death row. The court majority overturned a damage award for violation of civil rights.

One interesting aspect of the case is that the information leading to exoneration came from an attorney friend of the prosecutor. The Louisiana Supreme Court found that the attorney had violated Rule 8.3 (duty to report misconduct) for not coming forward sooner. (Mike Frisch)

March 29, 2011 | Permalink | Comments (0) | TrackBack (0)

New Ohio Reinstatement Rule

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio has adopted amendments that will allow suspended attorneys, in limited circumstances, to apply for reinstatement while subject to probation or other post-conviction sanction. The amendments become effective April 1.

Amendments to Rule V, Section 10 for the Government of the Bar of Ohio will allow a respondent who is serving a term suspension of six months to two years to apply for reinstatement to the practice of law before “completing a term of probation, community control, intervention in lieu of conviction, or sanction imposed as part of a sentence for a felony conviction” if the disciplinary order allows it.

A lawyer serving a suspension of more than two years is ordinarily barred from seeking reinstatement to the practice of law while subject to probation or other post-conviction sanction. However, the amendments permit an indefinitely suspended lawyer to petition for reinstatement if the lawyer can demonstrate compliance with the terms of the court-ordered sanction and can provide evidence sufficient to show by clear and convincing evidence that good cause exists for reinstating the lawyer.

Under the revised rule, the Board of Commissioners on Grievances and Discipline could only recommend early reinstatement if it finds by clear and convincing evidence that good cause exists for waiving the reinstatement requirement. The Supreme Court would review the board’s recommendation and make the final decision as to whether reinstatement is appropriate.

Click Access the text of the amendments.

(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tax Lawyer In Tax Trouble

The United States Court of Appeals for the Seventh Circuit affirmed the conclusion that an Indiana couple fraudulently understated their 2001 income. The court forewarns the reader of the opinion:

Appellants [husband and wife] (a married couple from Brownsburg, Indiana) ran into trouble with the Internal Revenue Service (IRS) in 2003, when a revenue agent began auditing their 2001 joint tax return. Through this audit, the agent discovered a web of corporate and partnership entities serving dubious purposes, undocumented financial transactions, and inconsistent reports regarding the [couple's] income. Incongruously, although [the husband] engineeered much of the financial and legal tangle that landed him and [his wife] in hot water with the IRS, [he] is a licensed Indiana attorney with a practice focused on business planning and tax matters. We outline the confusing maze of entities and financial dealings below, but be forewarned that much of it makes little business or legal sense as the [couple] fail to dispel the perception underlying the Tax Court's finding that the perplexing arrangements served as nothing but the after-the-fact attempts to avoid taxation on the substantial income [he] earned in 2001.

The court held that the Tax Court's reliance on a number of "badges of fraud" was not clearly erroneous. These factors included  the couple's education and experience, the omission of over $2.5 million in income, the failure to maintain records, commingling business and personal assets,  and the absence of a business purpose in moving funds around. (Mike Frisch)

March 29, 2011 in Law & Business | Permalink | Comments (0) | TrackBack (0)

Monday, March 28, 2011

Shots In the Dark

The Illinois Administrator has filed a two-count complaint alleging ethics violations against an attorney. Count One involves allegations of criminal misconduct:

 At approximately 1:30 a.m. on March 14, 2004, Respondent and John Zonzo ("Zonzo"), were arrested in Berwyn, Illinois, after an eyewitness saw one of the men fire several shots into a brick bungalow in the 2400 block of East Avenue in Berwyn, Illinois. The residents of the home, including two minors, were asleep at the time the shots were fired.

On April 11, 2006, following a bench trial before the Honorable Thomas M. Tucker, the Judge granted Respondent’s motion for a directed finding on the charges of aggravated discharge of a firearm and criminal damage to property, but found Respondent guilty of two counts of aggravated unlawful use of a weapon for failure to have a valid FOID, in violation of 720 ILCS 5/24-1.6(A)(1)(3)(C).

 The second count alleges that the attorney failed to report the conviction. Details here from the Chicago Tribune. (Mike Frisch)

March 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Employee "Cloaked With...Apparent Authority;" Firm May Be Sued

The New York Appellate Division for the Second Judicial Department affirmed an order denying a defendant law firm's motion to dismiss claims of fraud and negligent hiring:

In May 2008, the plaintiff Robin Shimoff, through her attorney, tendered a check in the sum of $710,000 to the defendant Mario A. Tolisano, an employee of the defendant Law Office of Howard R. Birnbach (hereinafter the law office), to cover the purchase price of certain parcels of real property. In July 2008, Shimoff tendered to Tolisano the additional sum of $502,500 as a down payment for the purchase of certain other real property. Shimoff apparently borrowed the aforesaid funds from the plaintiff Jacob Selechnik. No closings of title occurred on either transaction, and the plaintiffs later learned, among other things, that Tolisano, whom they believed to be an attorney representing the seller of the properties, was not a licensed attorney. The plaintiffs commenced this action in November 2009, inter alia, to recover damages for fraud and negligent hiring and retention, and the law office moved to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion. We affirm.

The court concluded:

Here, while the complaint contains no allegations of any affirmative misrepresentations by the law office itself, a fraud cause of action was sufficiently stated by the allegations contained therein which give rise to permissible inferences that the law office had certain knowledge or information regarding Tolisano's employment with it and his activities thereunder that were not ascertainable by the plaintiffs.

The complaint alleges, inter alia, that Tolisano was employed by the law office, held himself out as an attorney with the law office, and distributed his business card to the plaintiffs, which, while not explicitly stating that he was an attorney, indicated that he was employed by the law office. Furthermore, the complaint alleges that at the time Tolisano made his representations to the plaintiffs, which induced them to turn over their money to him, the law office knew or should have known "that its attorney-employee-impersonator, cloaked with the apparent authority that comes from employment at the [law office], would offer false representations." These allegations were supplemented by the affidavit of the plaintiffs' real estate attorney, wherein he stated that when he met with Tolisano, Tolisano said he was a lawyer and gave him a business card "that made it appear as if [Tolisano] was a lawyer at the [law office]," and that during the pendency of the transactions, the plaintiffs' attorney sent a certified letter to Tolisano at the law office and made several telephone calls to the law office asking to speak with Tolisano and left messages, to which he received no reply.

Based on these allegations, the complaint adequately states causes of action to recover damages from the law office for the torts allegedly committed by Tolisano under the doctrine of respondeat superior and on the theory of negligent hiring and retention, which are not required to be pleaded with specificity.

(Mike Frisch)

March 28, 2011 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Recycled Boilerplate Gets Attorney Reciprocally Suspended

An attorney who had been sanctioned by the Second and Ninth Circuits has been suspended for six months as reciprocal discipline by the New York Appellate Division for the Second Judicial Department. The court describes the misconduct found by the federal circuits:

...the Second Circuit referred the respondent to the Committee on Admissions and Grievances (hereinafter the CAG) for an investigation and a report. Since September 2005, the Second Circuit had dismissed at least 24 of the 71 petitions for review for which the respondent was counsel of record, based on his failure to comply with that court's scheduling orders. The order also noted that the respondent had submitted boilerplate motions in connection with these defaults, and where the respondent moved to reinstate the defaulted petitions, he "often relied on the same excuse for failing to comply with the applicable scheduling orders: that he had not received a copy of the scheduling order or had not received a response to his motion for an extension of time." The Second Circuit also expressed concern that the respondent had submitted deficient briefs to the court.

By order dated January 3, 2008, the Second Circuit publicly censured the respondent based on the opinion and order of this Court dated December 26, 2007. However, by order dated April 1, 2008, the Second Circuit vacated the January 3, 2008, order on the basis that its Local Rule 46(f) did not provide for such a disposition. In that same order, the Second Circuit referred to the CAG the issue of whether the respondent should be reciprocally disciplined based on the Ninth Circuit's 2007 order. This Court's decision and order dated December 26, 2007 (see Matter of Roman, 48 AD3d 25) provides further details with respect to the Ninth Circuit's determination. In a separate order dated April 1, 2008, the Second Circuit asked the CAG to consider, in determining appropriate sanctions, the conduct referred in both referral orders.

The attorney attributed the motions to reinstate to his partner and secretary, but:

The CAG reviewed all of the briefs cited in the referral order, and found that the respondent had filed defective briefs in at least 3 cases in 2006 and 2007. In one case, he failed to address the central issues, and in a second case, he recycled boilerplate language from other briefs. In a third case, he failed to address the extensive and detailed concerns raised in an Immigration Judge's decision. The outcome in the latter case suggests that the petitioner in that case may have been significantly prejudiced by this omission.

At the hearing before the CAG, the respondent testified that he had not personally prepared the briefs in question. They were drafted by Mr. Singh or his assistant. The respondent testified that he now personally handles all of the Second Circuit cases for which he is counsel of record. The CAG reviewed a sampling of his briefs in 2008 and found significant improvement. Nonetheless, the CAG found that the respondent was responsible for his failure to properly supervise the work of the attorneys in his office with regard to the preparation and filing of deficient briefs, citing Code of Professional Responsibility DR 1-104(b) and (c) (22 NYCRR 1200.5[b], [c]).

The CAG noted both aggravating factors, e.g., prior disciplinary sanctions by the Ninth Circuit for failure to comply with that court's scheduling orders, a pattern of dilatory conduct, multiplicity of offenses, filing of deficient briefs in multiple cases, and vulnerability of the respondent's clients, as well as mitigating factors, e.g., good faith effort to rectify the consequences of his mistakes, remorse, cooperation with the CAG, and the absence of a dishonest or selfish motive. The CAG noted also that "although [the respondent] may not have intended to neglect his clients, it was [his] decision to greatly increase his caseload without making adequate provision to protect his clients from the risks inherent in an over-stretched practice."

With respect to the imposition of discipline, the CAG found that reciprocal discipline was warranted under Rules of the United States Court of Appeals, Second Circuit, Local Rule 46(f) on the basis of the order of suspension issued by the Ninth Circuit, citing Selling v Radford (243 US 46, 60-61). The CAG also found that the respondent's conduct before the Second Circuit warranted discipline.

(Mike Frisch)

March 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Last call for the Tulane Spetses Greece summer school, open to students at all law schools

Posted by Alan Childress

Regarding our Greek summer abroad law program June 19-July 8 on which I blogged before (and my class in Comparative Legal Profession), it looks like April 1 is the hard deadline for the administration's deciding whether the summer programs will be viable this year. May 1 is the formal deadline to apply to an ongoing program, but the programs won't be considered ongoing after April 1 if few students have filled out official registration forms with Janice Sayas (jsayas AT Tulane dot edu). A Catch-22. So far few have actually signed up for Spetses and it is about to be canceled (even though I think many would wind up going but each year a lot tend to sign up late).  I would encourage anyone seriously interested to go ahead and register. If you cannot pay the deposit before Friday, I would still register by filling out the forms and tell them that fact, or emailing this reality to Ms. Sayas. It would still help to know there is serious interest in a program even if the deposit has to be given by the published deadline. Anyway, think about spending 3 weeks on a peaceful, car-less Greek island, sort of the Mamma Mia! of law programs but without James Bond trying to sing.

March 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Not The Attorney's Fault

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice action:

The documentary evidence conclusively disposed of plaintiff's legal malpractice claims. The hearing court found that plaintiff's disobedience of the so-ordered stipulation directing her to transfer certain custodial accounts to her husband's attorney to be placed in escrow or immediately liquidate the accounts and transfer the proceeds was willful. In light of such willful conduct, the motion court properly found that plaintiff — not her attorneys — was the proximate cause of her contempt adjudication and the resulting incarceration. We note that letters from the husband's attorneys, which were provided to plaintiff by defendants, unambiguously indicated that plaintiff's compliance with the so-ordered stipulation was a condition precedent to further settlement discussions. Defendants' alleged failure to correct the purge amount set forth in the contempt order to conform to the stipulation was also not a proximate cause of plaintiff's incarceration from December 23 through December 26, since the stipulation identified the amounts in the subject accounts as "approximate current balance[s]," thus recognizing that their values were subject to market fluctuation. In addition, the slightly higher purge amount in the contempt order conformed to plaintiff's own authorization to transfer the accounts dated just the previous day. Defendants' alleged failures to obtain and provide discovery and with respect to support could have been remedied by successor counsel; moreover, any attempt at modification of the pendente lite award would have had limited prospects of success. (citations omitted)

(Mike Frisch)

March 28, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

Another Prosecutor On Drugs

The Indiana Supreme Court suspended an attorney for 180 days, with an actice suspension of 60 days and the remainder stayed suject to probation of 18 months.

The attorney suffered from migrane headaches and began taking a schedule III contolled substance in the mid-1970s. He began to experience severe muscle spasms in 2001. From February 2009 to February 2010, he obtained 85 prescriptions from three doctors for the medication. The drugs were obtained in violation of Indiana law.

At the time, the attorney was a deputy prosecutor. He resigned and is currently umemployed. He began treatment for his addiction to pain medication and has been abstinent since March 2010. (Mike Frisch)

March 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Refit

The Georgia Supreme Court granted an application for certification of fitness of an attorney who had voluntarily surrendered his license in 1993 after pleading guilty to manufacturing marijuana. The Office of Bar Admissions supported the application on review of letters of support from 23 attorneys and 37 community members.

A full pardon for the offense was granted in 2002.

The court concluded that "since his conviction [he] has shown remorse and had strived to act with integrity and responsibility through his hard work, his devotion to family, and as a volunteer in his community." (Mike Frisch)

March 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, March 27, 2011

A Potent Mix Of Alcohol And Drugs

The Pennsylvania Supreme Court imposed a six-month suspension and immediately reinstated an attorney who already had been suspended for a criminal  conviction. The attorney was serving as a deputy district attorney at the time of the incident that resulted in the criminal charges.

The incident began in the attorney's home, where he experienced a "mixed bipolar episode." He medicated himself with a combination of prescribed drugs and alcohol.

A colleague visited him and was concerned by his bizarre behavior. She splashed a glass of wine on his face and struck him on the head with a large glass vase. A confrontation ensued in which the attorney struck her and grabbed her breast.

As she fled, the attorney's brother-in-law arrived. He called for an ambulance. The assaultive behavior continued when the police and emergency personnel came to transport him to a hospital. The behavior continued in the ambulance and on arrival at the hospital.

The attorney had no memory of the incidents and pled to a series of offenses including four counts of simple assault.

WGAL.com reports that the attorney was fired from his position as a prosecutor after his arrest. The attorney had sought treatment and cooperated with the disciplinary process. (Mike Frisch)

March 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 25, 2011

Stanford Law Review's March Edition Features Shari Motro on 'Preglimony'

New issue is out in ebook formats, beating the print edition to the streets. Features articles on such diverse topics as “preglimony,” derivatives markets in a fiscal crisis, corporate reform in Brazil, land use and zoning, and a student Note on college endowments in an economic downturn. Formats include Kindle, Nook, or ePub and PDF at Smashwords; and in Apple iTunes bookstore. Also at Sony store. [Alan Childress]

March 25, 2011 in Childress, Web/Tech | Permalink | Comments (0) | TrackBack (0)