Wednesday, August 31, 2011

Making A Positive Impression

The New York Appellate Division for the Second Judicial Department has imposed a censure of an attorney who was convicted of two driving while impaired offenses.

The court on sanction:

In determining an appropriate measure of discipline to impose, we note that the respondent has successfully participated in alcohol counseling. Moreover, with the exception of a Letter of Caution issued in December 2007 related to his 2006 conviction, the respondent has no prior disciplinary history in 38 years of practice.

Under the totality of circumstances, including the positive impression of the respondent noted by the Special Referee, the respondent is censured for his professional misconduct.

The court censured another attorney for cocaine possession:

In determining an appropriate measure of discipline to impose, we note that the respondent has successfully participated in, and completed, a substance abuse program, tested negative for alcohol or drugs during his participation in same, fully complied with the requests of the Grievance Committee, and successfully completed the terms of his one year conditional discharge. However, we note that the respondent was publicly censured by opinion and order of this Court dated May 8, 2007, as a result of his one year suspension in Connecticut and that, prior to his public censure, the respondent received a Letter of Caution dated March 4, 2003, based upon his involvement in a sexual relationship with a client in a matrimonial action immediately upon the finalization of her divorce, which "raised questions about the independence of [the respondent's] professional judgment during the course [of his] prior representation" and was, at a minimum, "imprudent and unprofessional."

Under the totality of circumstances, including the likelihood that said discipline resulted from the respondent's prolonged substance abuse, and the absence of any specific client harm in the instant case, the respondent is censured for his professional misconduct.

(Mike Frisch)

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

A Man's Car Is His Castle

The Mississippi Court of Appeals has reversed a manslaughter conviction as a result of the trial court's failure to give a requested jury instruction on the so-called Castle Doctrine.

The facts:

On March 8, 2008, a fundraising party was being held at the Performing Arts Building in Southaven, Mississippi. After the party, a crowd gathered in the parking lot and a fist fight ensued. Security attempted to stop the fight but could not. [Defendant] Thomas shot a gun in the air, and the attack stopped. The State and defense each called several witnesses who were in the parking lot on the night of the shooting to testify as to the events that followed. Thomas chose not to testify at trial.

Kenetric Randolph testified for the State. He had attended the party and witnessed Thomas shoot a gun in the air during the fight in the parking lot. Randolph testified that he thought Thomas was shooting at him or the young men standing with him. Randolph testified that Thomas immediately ran and got into his car. Randolph and several other men ran after Thomas and tried to open Thomas’s car doors, but Thomas had locked the doors. Randolph testified that Thomas began to reload his gun, and Randolph and the other men ran to the back of the car. He testified no one was in front of the car. Dexter Harris was to Randolph’s left at the rear of the car. Randolph testified that he then threw a cell phone at the car in an attempt to break the back window. Thomas then rolled down the driver’s side  window and fired several shots from his car. Two of the shots hit Harris in the chest and thigh. Harris subsequently died from his wounds. Thomas then drove off. Randolph testified that Thomas could have fled in the car at any time as nothing was blocking the car’s path.

The court concluded that the Castle instruction was appropriate along with a self-defense instruction. (Mike Frisch)

August 31, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Short Suspension For Pattern Of Misconduct

The Indiana Supreme Court approved an agreed disposition of a 90 day suspension with all but 30 days stayed, followed by probation for two years. The court described the circumstances:

 Count 1. Respondent admits to a pattern of misconduct from 2003 through 2004 involving his handling of the funds of 42 clients, including failure to keep adequate records, having insufficient funds to cover checks written on his attorney trust account, commingling of personal and client funds, failure to hold client funds in trust, and using the funds of some clients to pay the filing fees of other clients. In responding to a grievance, he asserted that he had rectified the situation, but he had not. Count 2. Respondent admits to a pattern of similar misconduct during 2007 involving his handling of client funds.

 Count 2. Respondent admits to a pattern of similar misconduct during 2007 involving his handling of client funds

Other facts. The parties cite the following facts in aggravation: (1) Respondent engaged in a repeated and prolonged pattern of misconduct that put client funds at risk; (2) Respondent failed to take action to correct his trust account mismanagement for years after becoming aware of it, taking corrective action only after the Commission began a thorough investigation in 2010; (3) Respondent's pattern of misconduct demonstrates a gross disregard for protecting his client's property. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent's misconduct was not due to a dishonest or selfish motive.

The court noted that no client funds were lost as a result of the above-described misconduct. (Mike Frisch)

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

One Bounced Check

A Massachusetts attorney has been suspended for 18 months for the following misconduct:

In August 2009, the respondent wrote a check from his IOLTA account to pay a personal obligation. The respondent knew when he wrote the check that he did not have sufficient funds in the IOLTA account to fund the check and that the bank likely would not honor the check. The check was dishonored due to insufficient funds.

Bar counsel contacted the respondent in August 2009 and requested account records and an explanation for the dishonored check. The respondent received two extensions to reply, then failed to send in the requested information. As a consequence, he was administratively suspended by the Supreme Judicial Court on January 13, 2010 for failure to cooperate with bar counsel. He has not been reinstated and has failed to close his IOLTA account or otherwise comply with the order of administrative suspension.

The respondent’s conduct in writing a check from his IOLTA account to pay a personal obligation violated Mass. R. Prof. C. 1.15(e)(4). The respondent’s conduct in writing a check that he knew would be dishonored due to insufficient funds violated Mass. R. Prof. C. 8.4(c) and (h). The respondent’s conduct in intentionally failing without good cause to cooperate with bar counsel’s investigation violated Mass. R. Prof. C. 8.1(b) and 8.4(g). The respondent’s knowing failure to comply with the order of administrative suspension and the provisions of S.J.C. Rule 4:01, § 17, violated Mass. R. Prof. C. 8.4(d).

A lot of trouble for bouncing one check. Never write an escrow check to pay a persoonal obligation. If an escrow check bounces, fully cooperate with the (inevitable) Bar investigation. (Mike Frisch)

August 31, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 30, 2011

NOBC Case Of The Month

The National Organization of Bar Counsel has a case of the month that is summarized by the incomparable Jim Grogan of the Illinois Administrator's office:


Case of the Month

A Murderer Loose In Apache County

Topic:
Both the dismissal of a criminal case with prejudice and the imposition of a lawyer disciplinary sanction can result when a prosecutor violates the no-contact rule with a represented defendant.

Apache County is big. Having a total area of over 11,200 square miles, Apache is the sixth largest county in the United States. Located in Northeastern Arizona, it is the longest county in the country, 211 miles from the Utah border to just south of Alpine. Two-thirds of the population, and over one-half of the land area, is comprised of the Navajo Nation, the largest Native American tribe. According to the 2010 census, 71,518 people live in Apache County, of who almost 77% are Native American. A high percentage of its land is comprised of Indian reservations, more so than any where else in the country. More community residents speak Navajo than English. Apache County is stunningly beautiful. Notwithstanding its extraordinary scenery, however, most Apache County residents live in poverty. The county's per-capita income makes it one of the poorest places to live in the United States. 

St. Johns, with a population of approximately 3,500, is the county seat. William “Stoney” McCarragher, 72, owned a ranch just outside St. Johns. He was known to carry large amounts of cash. McCarragher often employed young people to do work around his ranch. At some point, he hired a teenager named William Inmon. Inmon murdered McCarragher in 2007. The murder initially went unsolved. Two years later, a 60-year Vietnam veteran named Daniel “Hummer Dan” Achten was murdered and his body buried in a shallow grave near his home in St. Johns. Inmon had murdered him too. At some point after Achten’s killing, Inmon was travelling by car with a 16-year-old acquaintance of his named Ricky Flores. According to Inmon, the two argued about Flores’ drug use. Inmon drove Flores to a rural location outside of town where they exited the vehicle. Inmon then chased Flores down, shot him to death, and buried the body in a shallow grave.  

 Eventually, Inmon was implicated in all three murders. According to authorities, his overwhelming motive was that he wanted to rid society of less than desirable people, although a desire for guns and money also sparked the crimes.  Inmon told police that he would have continued his vigilante killing spree had he not been caught. Inmon agreed to plead guilty to the deaths if prosecutors would not seek the death penalty. Prosecutors agreed. At all times relevant to the Inmon St. Johns murder inquiries, Michael B. Whiting was the elected Apache County Attorney and Martin E. Brannan served as his Chief Deputy. 

As to each of the three murders, Inmon hinted that he had at least one accomplice. After further investigation, prosecutors alleged that Inmon had killed Flores at the suggestion of the father of Flores’ girlfriend. Both the father and Inmon’s girlfriend were charged with murder in Flores’ death. The mother of Flores’ girlfriend also faced charges. In 2009, the Apache County Sheriff’s Office arrested a 22-year-old friend of Inmon named Joseph Douglas Roberts. Roberts was charged with first degree murder, conspiracy, theft of a means of transportation, mutilating a human body, concealment of a dead body, tampering with physical evidence, and hindering prosecution. Prosecutors claimed that Roberts helped Inmon shoot and kill McCarragher and also helped Inmon dispose of Achten’s body.

Roberts hired a lawyer to defend him. At some point, the prosecutors formulated a plea offer and transmitted it to defense counsel, who was informed that the proposal would expire on the day of Roberts’ preliminary hearing. The day before the preliminary hearing, an Apache County Attorney’s Office investigator consulted with Whiting and Brannan and informed them that he was concerned that defense counsel had never communicated the plea offer to Roberts. Whiting and Brannan authorized two office investigators, Brian Hounshell  and Jerry Jaramillo, to contact Roberts in jail and communicate the plea offer directly to him. When asked if defense counsel would need to be present, the prosecutors informed the investigator that defense counsel did not need to be present, so long as the investigators provided Roberts with Miranda warnings. According to a report published in the Arizona Republic, Whiting claimed that, in allowing the investigators to make the contact with Roberts, he was merely acceding to the legal conclusions reached by Brannan, who believed that contacting the defendant without notice to the defendant’s lawyer would be permissible. “If the chief deputy says it's OK, I guess it's OK,” Whiting said. “I didn't go research it.” Apparently, Brannan erroneously interpreted a then-recent United States Supreme Court decision in Montejo v. Louisiana, 556 US ___ (May 26, 2009).

The Apache County Attorney’s Office investigators met with Roberts without his counsel present, communicated the plea offer to him, and made several statements to Roberts that could be considered an attempt to pressure him into ultimately accepting the plea. Specifically, they noted that Roberts was facing the death penalty, discussed the fact that Roberts’ wife had recently lost a child through miscarriage, and noted that Roberts’ wife could be charged with felony crimes unless he agreed to waive his legal rights. Roberts said nothing incriminating during his eight-minute jailhouse conversation with the investigators. 

Upon subsequently learning of the contact, Robert’s defense lawyer filed a motion to dismiss the criminal charges. Superior Court Judge Donna J. Grimsley  initially removed the Apache County Attorney’s Office from the case for violating Rule 4.2, but then ultimately determined that the misconduct was of such a grave and serious nature that it had deprived Roberts of his Sixth Amendment guarantees. The court dismissed the criminal case against Roberts with prejudice and ordered him released.  Judge Grimsley called the behavior of the Apache County Attorney's Office “outrageous” and “unethical” and said that the defendants’ trust in the judicial system was betrayed. Specifically, she ruled that, “The court is of the view that the flagrant and manipulative subversion of the Sixth Amendment constitutional rights in this case trumps all other considerations and that dismissal is the only remedy that will preserve the defendant's inviolable constitutional right…"

Aggravating an already bad situation, Whiting’s office issued a press release immediately after the dismissal. The release, emblazoned with a caption reading, “JUDGE ORDERS RELEASE OF MURDER DEFENDANT”, described the judge’s actions as a “murder dismissal”, and provided, in relevant part, that:

 The Apache County Attorney’s Office is surprised and deeply concerned by Judge Donna Grimsley’s decision to release a defendant charged with murder back into the community. Judge Grimsley ordered Joseph Roberts released at 5:00 p.m. on January 19, 2011. Judge Grimsley’s order does not cite a case, statute or legal rule allowing her to release a person accused of murder. Grimsley’s order contains political statements, personal attacks, and quotes from the record entirely out of context…County Attorney Michael Whiting said “like the rest of the county we are shocked and left wondering why a judge would do such a thing without referencing any legal authority to do so.” Whiting stated, “Judge Grimsley’s decision to release the defendant, who was being held on first degree murder, has re-victimized the victims. Also, Whiting stated “these actions may place the citizens of Apache County and surrounding areas in danger.” Finally, County Attorney Whiting went on to say, “it is frustrating when a court cares more about a defendant’s rights than victims’ rights, this is a travesty of justice in the 1st degree.”

 Formal disciplinary charges were lodged against the two prosecutors by the State Bar of Arizona. Thereafter, the Presiding Disciplinary Judge approved an agreement for Discipline by Consent and Whiting and Brannan were reprimanded. In entering into the agreement, the prosecutors conceded that they had violated Rule 4.2, but that their violation was negligent. Whiting also agreed that his issuance of the press release in response to the dismissal violated Arizona Rule 41(c) because he did not maintain the respect due courts of justice and judicial officers.

The case is In the Matter of Michael B. Whiting and Martin E. Brannan, PDJ-2011-9006 (Arizona June 30, 2011).

(Mike Frisch)

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

Charity Begins At Home

The New York Appellate Division for the Fourth Judicial Department has disbarred an attorney notwithstanding an unblemished record in 30 years of practice. The misconduct occurred in connection with his dealings with an incapacitated person ("IP"):

Respondent admits that, in July 2009, he was appointed as guardian for the IP, who was a plaintiff in a pending personal injury action. Respondent further admits that, in August 2009, the IP received settlement funds in an amount in excess of $5 million and, on numerous occasions thereafter, Supreme Court instructed respondent to retain independent counsel to draft a will on behalf of the IP.

Respondent admits that, in contravention of those instructions, he prepared a will for the IP, which was executed in March 2010, appointing himself as sole executor of the estate and designating respondent’s wife, in her maiden name, as sole beneficiary of the will. Respondent further admits that, prior to the execution of the will, the IP did not receive advice from independent counsel and was not evaluated to determine if she possessed testamentary capacity. In addition, respondent admits that two members of his immediate family served as subscribing witnesses to the will.

The court rejected as incredible the attorney's suggestion that his goal was to donate the inherited funds to charity. (Mike Frisch)

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

Lien Times

An attorney with a record of prior discipline has been suspended for three years by the Kentucky Supreme Court.

The most serious misconduct in the present case involved the attorney's conduct in a divorce matter. The husband and wife had resided in a house that was the wife's premarital property. The husband (the attorney's client) entered into a post-nuptial agreement that disclaimed any interest in the property.

The attorney thereafter filed a notice of lien against the property for unpaid legal fees. The attorney refused to remove the lien until losing an arbitration over the matter. The wife was unable to refinance her home due to the lien. (Mike Frisch)

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

Not Worth Litigating

The Pennsylvania Supreme Court accepted an agreed four year suspension of an attorney for misconduct involving shortfalls in his escrow account.

The petition approved by the Disciplinary Board noted that factors of age and health justified a sanction less than disbarment. The attorney suffers from "excruciating pain" and depression as a result of an accident that led to an amputation of a portion of one  leg.

While there is a dispute over the causal connection between his physical condition and the misconduct (which started prior to the accident), the suspension with fitness was deemed a sufficient sanction.  The attorney avoids the stigma of disbarment and the bar avoids a drawn out proceeding over whether one more year should be added to the sanction.

This makes perfect sense to me.

D.C., are you paying attention? (Mike Frisch)

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

Monday, August 29, 2011

No Reinstatement for Attorney Who Sold Vote

The California State Bar Court agreed with a hearing officer that an attorney had not shown that reinstatement was appropriate.

The court described the misconduct:

After being admitted to practice law in California in 1992, [the attorney] worked for ten years in the Public Defender’s Office in Carson, California. Her final assignment was with the Public Integrity Assurance Section where she prosecuted those accused of public corruption. In 1999, [she] was elected to the city council for a four-year term. During this time, [she] lived with her husband, an attorney who was abusing alcohol, and their two small children.

Shortly after her election, [the attorney] became aware of corruption among council members but failed to take any action or report it. Then in 2001, she was asked to join two other council members in a conspiracy to sell their three-vote majority to approve a new waste-hauling contract. [She] was promised $100,000 in $5,000 installments. She was hesitant about the plan because she knew it was wrong. So she discussed it with her husband who, to her surprise, pressured her to participate. [She] agreed to the conspiracy and on February 19, 2002, cast her illegal vote. A few months later, law enforcement discovered her involvement when she talked about the conspiracy with another council member who was wearing a "wire." By this time, [she] had received two $5,000 installments.

The attorney pleaded guilty to conspiracy to interfere with commerce by extortion. She resigned from the Bar with charges pending in 2003.

The court found that the attorney had made "substantial progress toward rehabilitation" but that insufficient time had passed to warrant reinstatement. (Mike Frisch)

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

Fraud Claim Not Dismissed

The New York Appellate Division for the Second Judicial Department held that a legal malpractice case, which involved claims relating to a Florida easement, was time-barred. However, claims of fraud survive:

... the Supreme Court properly denied that branch of the defendants' motion...which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant [attorney] to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct...

(Mike Frisch)

August 29, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Changes

From the web page of the Pennsylvania Disciplinary Board:

The Disciplinary Board has proposed amending the Pennsylvania Rules of Disciplinary Enforcement to provide for a new form of discipline, Public Reprimand, with or without probation.

The proposed rule, published at 41 Pa. Bull. 4200 (8/6/2011), provides that public reprimand could be imposed by the Disciplinary Board through summary procedure, which would not require the institution of formal proceedings, although the respondent-attorney would have the right, as with all summary discipline, to request that formal charges be filed prior to the imposition of discipline.

While noting that the proper applications of the new sanction will be defined in cases, the Board gives a few examples of situations where public reprimand may be applied:

  • The misconduct does not harm or prejudice a client, but causes significant prejudice to a court or the administration of justice;
  • Where public discipline short of suspension or disbarment has been imposed in another jurisdiction;
  • Criminal conviction of a relatively minor offense that receives public notoriety and demeans the legal profession;
  • An administrative body has found that the respondent-attorney violated a provision of an ethics act or code of conduct applicable to public officials and employees.

The Board explains misconduct in such cases may have already been exposed to public scrutiny, and the new provision will provide for a public sanction to satisfy the primary purposes of professional discipline while allowing the respondent-attorney to continue to practice law. The public reprimand may be subject to conditions and may be imposed in combination with probation.

Comments should be sent by mail or facsimile to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P.O. Box 62625, Harrisburg, PA 17106-2625, facsimile number (717-231-3382) on or before September 30, 2011.

On the same day, the Disciplinary Board also issued a rulemaking modifying several of the Rules of the Disciplinary Board. These amendments, published at 41 Pa.B. 4202, carry into the Board Rules changes made in the Rules of Disciplinary Enforcement over the past several months. One substantive change in the new Board rules is that the time set forth in Section 87.7(b)(2) for responding to a Request for Statement of Respondent’s Position (DB-7 letter) is enlarged from 20 to 30 days. It should be mentioned that under the amendments to Rule 203(b)(7) of the Rules of Disciplinary Enforcement, failure to respond to a Request for Statement of Respondent’s Position is now a separate ground for discipline. The amendments took effect upon publication.

(Mike Frisch)

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

No Class Actions Draws Reprimand

The Kentucky Supreme Court has imposed a public reprimand of an attorney "for engaging in sexually explicit telephone conversations, and for making sexual advances towards the client while [the attorney] was representing the client in a class action, sometime in November and December of 2003." The italics are in the original.

The client "turned down the attorney's advances and notified the firm that she was going elsewhere for representation. The client stayed with the firm after a partner...talked to the client and reassigned the claim to another member of the firm."

The attorney had three prior private reprimands "for matters not similar to the facts of this case." (Mike Frisch)

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

The Broken Record

An attorney who became the subject of a bar investigation when he bounced a $1,000 escrow account check to himself was suspended for four years by the Alaska Supreme Court. Two other overdrafts were later reported to the bar.

The attorney was found to have failed to fully cooperate with the bar's investigation. One issue related to a CD that the attorney submitted that arrived in the mail broken in half. The court found no issue with the findings of non-cooperation:

...we observe that none of the Hearing Committee’s conclusions rely upon disputed issues of fact. The language cited by [the attorney] for this claim simply reflects what the record clearly shows: the CD did, in fact, arrive in an unusable state, and although [he] expressed his willingness to provide the information, he had not provided it by the time the Hearing Committee issued its order granting summary judgment in July 2009. The Hearing Committee did not find that [he] broke the CD. Its determination that [he] violated Bar Rule 15(a)(4) was based on [his] continuing failure to provide the subpoenaed information after he learrned from the...petition for formal hearing that the CD had arrived broken - regardless of what caused it to break. It was never fully resolved how the CD broke, but this issue was not material to the Hearing Committee's decision and did not preclude entry of summary judgment.

 The court relied on the attorney's failure to cooperate in distinguishing escrow account violation cases where lesser sanctions had been imposed. (Mike Frisch)

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

Saturday, August 27, 2011

Fraud Results In Five-Year Suspension

The Hawaii Supreme Court has imposed a five-year suspension for misconduct described in the court's order:

...it appears that Respondent...falsified two letters that were material to a lawsuit pending against him and presented them to opposing counsel as authentic, fraudulently misrepresented his financial assets to a federal bankruptcy court for personal benefit, violated his professional duty of diligence and competence to a client in the underlying divorce matter, and has demonstrated a pattern of misconduct before tribunals...

He also must pay costs as a condition of reinstatement. (Mike Frisch)

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

Friday, August 26, 2011

Reasons Unknown

Citing "unique factual circumstances," the Wisconsin Supreme Court has imposed a 60-day suspension with requirements that the attorney undergo evaluations to determine whether he suffers from medical incapacity. The court '[did] not impose these conditions lightly" as the attorney "has been a respected and productive attorney in this state for many years." The attorney must waive medical confidentiality as a condition of reinstatement.

The Lawyer Regulation System filed a complaint in a client's matter. Personal service could not be accomplished as the return indicated "HOUSE IS BARRICADED - NO CONTACT." There were further efforts to serve but eventually a default was entered:

Because of the nature of the allegations in the LRS's complaint and an apparent concern for Attorney...'s welfare, the referee took the unusual step of having Investigator Rosen testify at the default hearing regarding his attempts to communicate with Attorney... and the results of his investigation.  Investigator Rosen testified that as a result of his inquiries he became concerned that Attorney...may have been experiencing some mental health problems.  He noted that he had learned that Attorney...had apparently cut off communication with his family.  When that fact was combined with the facts that Attorney..., a respected and successful attorney, had abruptly disconnected his office telephone, had closed his law office, had stopped communicating with clients, had refused to communicate with Investigator Rosen orally, had spoken to the other special investigator only because he had been compelled to do so, and had virtually barricaded himself in his house so that the sheriff's department could not even serve him with process, Investigator Rosen concluded that there were sufficient reasons to believe that Attorney...was experiencing problems.

Justice Roggensack would impose the suspension but not the reinstatement conditions. (Mike Frisch)

August 26, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Admitted, Now Suspended

An attorney who engaged in unauthorized Maryland practice has been suspended for one year and until further court order by a court that actually had admitted her to practice - the New York Appellate Division for the Second Judicial Department:

The Maryland Court of Appeals found that the respondent violated MRPC 5.5 by establishing an office for the practice of law and by representing that she was admitted to practice law in the State of Maryland, as well as having violated MRPC 7.1, which prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer's services, and MRPC 7.5, which prohibits a lawyer from using a professional designation that violates MPRC 7.1.

Although not a member of the Maryland bar, in August 2007, the respondent established the "Sucklal Law Firm, LLC," in Rockville, Maryland.

The Maryland court found that the attorney had undertaken several Maryland csaes on behalf of clients. (Mike Frisch)

August 26, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Praise for Mike Frisch

Looking at the news summaries for the week that the ABA emails me on Fridays too early, I have noticed that Mike's posts got hat-tipped a lot by the ABA Journal and its blog. That has happened regularly since he started systematically blogging bar discipline here (or they hat-tip a blog that itself traces back to this blog), plus many other sources and news services have picked up on his leads since 2006. Of course we've been happy with all that and are not complaining, and there is nothing wrong with their doing so (to their credit, they hat-tip). I just note that this week they seem to be especially relying on his uncovering issues and filings re ethics. While this is a blog and not a newspaper as such, and we do not purport to be journalists, there is extra value (beyond the many other things he accomplishes on this blog) to getting the journalistic ball rolling by uncovering publicly available (but often obscurely disseminated) state ethics reports. That ball is Mike. Please keep it up--or else at the very least the ABA Journal and its blogs would have fewer pages and pixels. True, I blog here too, and valuable contributions by Jeff and Bill have also been picked up on and fill the blog-iverse, but I'm sure they'd agree with me that it is nothing close to the regular and firm reliance people have come to place upon Mike. Just sayin'. [Alan Childress]

August 26, 2011 in Frisch | Permalink | Comments (2) | TrackBack (0)

Thursday, August 25, 2011

A Day In Mississippi

The Mississippi Supreme Court has ordered a reduction of its three-day bar examination to two days.

There is a dissent from Justice Randolph, quoted in part below:

A matter of particular concern to this Justice is Exhibit 2 to the petition. It reveals that
the proposed structure adopted by today’s order would require only three hours of
examination on Mississippi law, a proposition which seems alarming at first blush. In the
absence of either conclusive evidence to the contrary or opinions of the Board, based on
sound reasoning and logic, I would opine that eight hours of examination on Mississippi law
would be in the best interests of both prospective attorneys and the citizens of this state, prior
to admission to practice law in this state.

Justice Chandler also dissented:

At the present time, Mississippi administers a three-day examination for admission
to the bar. Before this Court is a petition by the Board of Bar Admissions to reduce the
testing period from three days to two. I believe this Court’s grant of the petition is
premature. While it is a laudable goal to reduce an unnecessarily lengthy testing period, this
Court first should determine, with specificity, what we are attempting to measure before
deciding how to measure it and what length the test should be. The Board’s petition indicates
that the Board has rigorously studied the impact of changes to the testing period, but fails to
set out what the bar examination purports to measure, and what a reduction of the testing
period will accomplish toward those goals. The petition fails to set out any testing objectives
the Board wishes to accomplish by reducing the testing period.

The two dissenting justices joined each other's opinion. (Mike Frisch)

August 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Second Surrender

An attorney who had voluntarily surrendered from the Arkansas Bar was disbarred by the New York Appellate Division for the Second Judicial Department for the following misconduct:

...Respondent acknowledges in his affidavit submitted herein that he could not successfully defend himself on the merits against charges that he violated Rule 1.7(a) of the New York Rules of Professional Conduct in connection with a corporate investment transaction where he sought to represent both the buyer and seller ( "A lawyer shall not represent a client if a reasonable lawyer would conclude that the representation will involve the lawyer in representing differing interests"). Although he obtained a waiver of his conflict of interest from the seller, he did so after he requested that the seller keep its corporate attorney out of the negotiation process and he deal only with the corporate officers. Additionally, respondent obtained two "loans" from the seller for himself to cover transaction expenses. However, he did not place the funds into a trust or escrow account until such funds were actually used for the stated purpose, nor did respondent inform his law firm of his receipt of these funds, in violation of Rule 1.15(b), which requires an attorney to maintain funds in an attorney trust account or attorney escrow account.

Finally, respondent acknowledges that he could not successfully defend himself against charges that he violated Rule 8.4(c) of the New York Rules of Processional Conduct ("A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation") when he repeatedly made promises and false representations to the Arkansas Arts Center in connection with $500,000 in pledged funds.

Additional information is linked here from the Arkansas Times. (Mike Frisch)

August 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Make Weight Argument

Not a legal profession case but one that is hard for me to resist as a former wrestler.

The Maine Supreme Court has held that a school district is not liable for damage caused to a motel room used during a school-sponsored event.

The facts:

Four members of MSAD 43’s wrestling team stayed in room 216. At
some point that night, the team members in room 216 turned on the shower,
blocked the ventilation system, and used the motel’s hairdryer to create a makeshift
sauna to help one of their teammates “make weight” for the next day’s match. As
a result of the students’ actions, the motel’s sprinklers activated.

Middlesex [the insurer] paid out $10,693.68 to repair the damage caused by the
students’ actions.

The court rejected the insurer's subrogation claim. (Mike Frisch)

August 25, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)