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]
Address Unknown, Attorney Suspended
The New York Appellate Division for the First Judicial Department has ordered the immediate suspension of an attorney who was the subject of complaints from immigration clients. The court explained:
The [Departmental Disciplinary] Committee's investigation into respondent's conduct began when it received complaints from three clients of respondents, two of whom complained that respondent had neglected their immigration matters, another who complained of respondent's failure to communicate and to turn over files. After notices sent to all of respondent's known addresses were returned as undeliverable, a Committee investigator obtained information that respondent had moved to China, and located a former colleague of respondent's, who forwarded the Committee's email to respondent in China.
In email to the Committee, respondent indicated that he had closed his office in November 2008 and moved back to China after that. He explained that he had taken no steps to formally resign because he thought non-payment of the biennial registration fee would serve to inform the Committee that he had discontined his practice.
The Committee then informed respondent by responsive email that he was required to provide a mailing address where he could be reached, and to formally answer the three client complaints, or, in the alternative, to acknowledge the misconduct and pursue a disciplinary resignation. Although respondent continued to ask, through email, for further information about the complaints, he did not provide a mailing address.
In the absence of a means of personally serving respondent with this interim suspension motion, the Committee sought and received an order directing service by publication, which was effectuated.
Although the attorney was admitted by the Third Department, his last known New York address was in the First; the court thus has jurisdiction. (Mike Frisch)
No Nexus Between Firearms Offense And Fitness As an Attorney
The Iowa Supreme Court has dismissed ethics charges against an attorney, rejected the recommendation of its Attorney Disciplinary Board. The board had sought a suspension of no less than nine months.
The attorney was admitted in 1972. He had previously been disciplined for conduct that took place after the breakup of his marriage in 2006-07. He became addicted to crack cocaine and had been in an accident on his way to the Muscatine courthouse after partying all night in July 2007.
The police obtained a warrant to search his house after the accident. They seized a firearm that the attorney had lawfully accepted custody of in 2006. Because he later became a crack addict, the possession of the weapon became unlawful. He was convicted of a federal firearms offense. The issue before the court was whether the conduct that led to the conviction warranted additional discipline.
The court answered in the negative, concluding that the evidence failed to establish a nexus between the conduct and the attorney's fitness to practice law:
The board has established that [the attorney] was convicted of a felony for knowingly possessing a firearm while being an unlawful user of, or addicted to, a controlled substance. However, the board has not demonstrated how this conviction relates to [his] fitness to practice law. [His] illegal possession of a firearm has not affected the professional relationships he has with his clients, fellow lawyers, or judges. This criminal conduct has not called into question his ability to competently and vigorously represent clients in important controversies and guard confidential information. [He] legally gained possession of the firearm on behalf of a client prior to his struggles with addiction; therefore, the nexus linking his criminal conduct to his fitness to practice law is tenuous.
An Illinois Hearing Board has recommended that an attorney be suspended for 90 days based on misconduct relating to a bounced check for a vacation rental, the ensuing criminal charges and the failure to report the outcome of the criminal case to the Bar. The board found:
Beginning October 1, 2008, Respondent rented a house located at 1125 Shore Drive, New Buffalo, Michigan ("Shore Drive property"), from Lake Effect Vacation Rentals ("Lake Effect"). Lake Effect was owned by Carie L. O'Donnell ("O'Donnell"). Respondent signed a lease to rent the Shore Drive property from O'Donnell from October 1, 2008 through April 30, 2009. Respondent agreed to pay O'Donnell $1,200 per month plus the cost of utilities, snow removal and hot tub maintenance. O'Donnell agreed to allow Respondent to have a dog on the property as long as he cleaned up after the dog.
On November 3, 2008, Respondent gave O'Donnell his check number 999991, which he had drawn on JPMorgan Chase Bank account number 808321509. Respondent had made the check payable to "Lake Effect Rentals" in the amount of $1,200 and he provided it to O'Donnell in payment of his rental obligations for the Shore Drive property for October and November 2008. Respondent did not sign the check. Respondent also paid $1,200 for a security deposit which he placed on his debit card.
Upon receipt of check number 999991, O'Donnell deposited the check into her personal account at New Buffalo Savings Bank. The check was returned twice by JPMorgan Chase Bank to New Buffalo Savings Bank for nonsufficient funds. Respondent stated that the account was insufficient because a check that was deposited into the account was also insufficient.
Respondent stated that he was unaware that the account was overdrawn.
The victim sought criminal charges and the attorney entered a conditional guilty plea. He did not believe that he was obligated to report the disposition to Bar authorities.
As to sanction:
...we consider factors of mitigation and aggravation. In mitigation, Respondent offered character testimony regarding his good reputation for truth and veracity in the community. Respondent has never been disciplined and cooperated fully throughout the disciplinary process. While Respondent expressed remorse for bouncing the rent check, Respondent has not admitted wrongdoing.
In aggravation, there is an outstanding small claims judgment against Respondent of which Respondent has no intention of paying unless O'Donnell registers the judgment in Illinois. In addition, Respondent stated that he plans to countersue O'Donnell for defamation. O'Donnell testified to the financial harm caused by Respondent's misconduct as well as her negative opinion of the legal profession based on her experience with Respondent.
March 24, 2011
Profanity, Threats In Court Leads To Proposed Suspension
The Arizona Disciplinary Commission has recommended a six-month suspension and two years of probation of an attorney who had been censured in 2005 and 2007 for, among other things, engaging in profanity and name-calling to express his disagreement with a judge's ruling. Here, in 2009
Respondent again disagreed with a judge's ruling. He again became abusive in open court, yelled, disregarded the judge's instructions, used profanity, and then moved aggressively towards the prosecutor in a threatening manner. Law enforcement officers in the courtroom intervened and physically prevented Respondent from reaching the prosecutor. When he was forcibly removed from the courtroom, Respondent continued his tirade and stated he was not "quite through with the court."
The conditions of the proposed probation would require the attorney to continue therapy and take his prescribed medication.
The hearing officer had proposed a 30 day suspension with probation. The commission raised the sanction based on its de novo review. The State Bar had not objected to the shorter suspension. (Mike Frisch)
No Favorable Information
The Maryland Court of Appeals disbarred an attorney who had solicited, and then totally neglected, two client matters.
In both cases before us, [the attorney] clearly neglected his clients, leaving one client to fend for himself at his own hearing and the other to lose his cause of action entirely for failure to prosecute. [He] also repeatedly ignored his clients' inquiries into the status of their cases, and then moved his practice without informing his clients of his new contact information. He then lated declined to respond to Bar Counsel's requests for information. [He] has not presented to this Court any mitigating factors that might justify a lighter sentence; indeed, he has not presented anything to this Court.
Ultimately, an examination of the totality of the circumstances in this case persuades us that disbarment is appropriate.
Internet Posting Leads To Charge Of Confidentiality Breach
I regularly preach to law students about the danger of letting hurt feelings or anger govern one's behavior in the wake of being terminated by a client. The lesson comes in the discussion of Rule 1.16(d).
A complaint filed recently by the Illinois Administrator alleges such a violation. One of the counts contends that the attorney was discharged by the client in a domestic relations matter. Then:
On or about March 2007, [the client] informed Respondent that she was discharging him as her attorney, and that she was hiring John Cutright ("Cutright") to handle her case.
On March 27, 2007, Respondent withdrew from case number 2005 D 67, and Cutright entered his appearance for [the client].
After [the client] discharged Respondent and hired Cutright, Respondent became angry with her, and sent her a bill for additional fees, which [she] refused to pay.
In the fall of 2008, Respondent was a candidate for the office of Cumberland County State's Attorney. During his campaign, had a web site at www.mervinlwolfe.com.
On October 27, 2008, the local newspaper, the Toledo Democrat, published a letter from Respondent's former employee, Marilyn Henderson ("Henderson"). Henderson's letter was critical of Respondent and his candidacy for the position of State's Attorney. Respondent was aware of the letter. Respondent was aware that Henderson and [the client] were friends, and that [the client] had cared for Henderson's disabled son.
In November 2008 Respondent posted, or caused to be posted, on his web site www.mervinlwolfe.com, confidential information from [the client] he had received while he was her attorney, including her home address and social security number.
Respondent also posted, or caused to be posted, confidential information regarding [the client's] compensation for caring for Henderson's disabled child. Respondent also posted, or caused to be posted, confidential information from Henderson, including Henderson's social security number, address, a letter from the Illinois Department of Human Services regarding a fraud investigation pertaining to Henderson, information from Casey State Bank regarding an alleged forgery by Henderson, a decision from the State of Illinois Department of Employment Security regarding Henderson.
At no time did [the client] give Respondent permission to post her confidential information on the internet.
Anyone see a potential exam question here? (Mike Frisch)
Probation For Psychologist
The Delaware Superior Court affirmed a determination of the Bpard of Examiners of Psychologists to place a psychologist on six-months probation for his failure to meet CLE obligations and erroneous assestation that he had done so. He must be supurvised by an approved psychologist and assessed for organizational impairment during the probationary period. (Mike Frisch)
March 23, 2011
Fee Misconduct Draws Suspension
The North Dakota Supreme Court has imposed a 30 day suspension of an attorney for fee-related misconduct:
The Hearing Panel found subsequently that [the attorney] had no written fee agreement with [the client]. However, she had orally agreed to an hourly rate of $125, but instead charged $175 per hour and $210 per hour for Court time. The Hearing Panel also found [the attorney] failed to reflect a payment by [the client]; overbilled for mileage; billed to review Veteran's Affairs medical records of the children when the children had never been to Veterans Affairs; billed [the client] more than 24 hours on June 16, 2008; and billed for time when she provided no legal services while [the client] reviewed paperwork.
Nine Tenths Of The Law
The Arizona Supreme Court imposed discipline (a one-year suspension with two-years probation on reinstatement) in a matter than we previously reported. The attorney's misconduct arose from her claims that she had been possessed by the spirit of the client's deceased wife.
The report of the Disciplinary Commission is attached here. (Mike Frisch)
Bite Is Worse
An attorney who defaulted on charges that he defrauded a company through a Ponzi scheme, issued bad escrow checks, defrauded a number of individuals out of substantial sums of money and failed to provide financial records in reponse to the subpoena of disciplinary counsel should be permanently disbarred, according to a recent recommendation of a Louisiana hearing committee.
The attorney's last name is Bark. (Mike Frisch)
Discipline Costs Discharged By Bankruptcy
A suspended attorney who had been ordered to pay the costs of the disciplinary proceeding appealed for relief from the assessed costs. He then filed for bankruptcy and obtained an order that discharged his pre-bankruptcy debts.
The Tennessee Supreme Court held that the costs were discharged by the bankruptcy and that the costs are no longer due and owing. The suspended attorney's appeal was thus dismissed as moot. (Mike Frisch)
Witness Advocate Rule Applied
The New York Appellate Division for the First Judicial Department affirmed an order disqualifying counsel in civil litigation:
Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests.
While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner, under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (citations omitted)
Posted by Jeff Lipshaw
This is the dignified name of the online lawyer bidding service created by a New York Law School student, and which merited an article in today's Wall Street Journal. Back when I was in the business world and e-commerce was just beginning, most sophisticated "supply chain managers" put in place online bidding systems for some of their purchased materials. I'm pretty sure it tended to work best with uniform, commoditized products, and it certainly did not favor the seller with a unique value proposition. I'll take $200 worth of summary judgment, please.
Kidding (and the usual knee-jerk "we're different" reaction) aside, there are no doubt relatively commoditized legal products for which this system would work.
March 22, 2011
The Answer Is No Answer (Respectfully)
The San Diego County Bar Association has a recent ethics opinion on the dilemma faced by a defense attorney questioned by a judge about a non-appearing client:
Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way. She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information.
The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.” If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before. If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information. Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]).
Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.
Hat tip to Wally Mlyniec for passing this along. (Mike Frisch)
The Letter And the Law
The New York Appellate Division for the First Judicial Department reversed the lower court and dismissed a claim against a law firm:
Supreme Court denied defendants' motion based on its finding that the moving papers were deficient because a March 7, 2005 letter referenced therein was not attached. We find that Supreme Court should have considered the motion on the merits because it is clear that defendants mistakenly failed to attach the letter to their moving papers but corrected their mistake by including it on reply. Plaintiffs were not prejudiced in any way because they actually received the letter as an exhibit with their copy of the moving papers and so were able to address the letter in their opposition.
On the merits, the motion should be granted. By letter dated August 25, 2004, defendants unequivocally informed plaintiffs that they would not proceed with plaintiffs' case, thereby severing the attorney-client relationship. Given defendants' advice that they would not proceed with the action, the continuous representation doctrine ceased to be applicable and the toll of the statute of limitations came to an end. Because the action was commenced more than three years after plaintiffs' receipt of the August 25, 2004 letter, it is time-barred. (citations omitted)
A Louisiana hearing committee has recommended a public reprimand of an attorney who notarized four lawsuits initiated by a non-attorney "public adjuster." The suits brought insurance claims for damages sustained in Hurricane Katrina.
The attorney was employed as a law clerk in the summer of 2005 just after his admission to the Bar.
This was the only job he had had as an attorney. He was hired a few days before Hurricane Katrina. He evacuated to Dallas where he tried to figure out what his next step would be, and in April 2006 he returned to his job...he was routinely called upon to notarize in forma pauperis affidavits for plaintiffs.
The committee found he had notarized at least some of the affidavits at issue after learning that the adjuster was not an admitted attorney. He received no compensation and was motivated by a desire to help victims of the Hurricane. (Mike Frisch)
"A Series Of Personal Crises"
The South Carolina Supreme Court imposed a definite suspension in a matter in which the attorney accepted a fee while serving an earlier suspension:
Although Client's mother testified Respondent informed her that his license to practice law was suspended, he nevertheless requested and then accepted $2,000 on behalf of Client for legal services. His flagrant disregard of this Court's suspension is reprehensible. However, in mitigation, this Court considers that the majority of Respondent's disciplinary history stems from events occurring in 2008, a time when Respondent candidly admits he experienced a series of personal crises and ultimately had a mental breakdown. The recommendation of a fifteen month suspension, retroactive to the expiration of the previously imposed nine month suspension, cumulatively results in a two year suspension from the practice of law. In hopes this extended period will allow Respondent to order his life and law practice to better align with the high standards expected of a practicing attorney, we follow the Panel's recommendation. The Panel additionally recommended this Court impose a fine to be paid within thirty days of this opinion. Because Respondent accepted $2,000 in legal fees, which was refunded to Client's mother through the Lawyers' Fund, we require Respondent reimburse the Lawyers' Fund that amount within thirty days of the date of this opinion, if he has not already done so. Lastly, we follow the Panel's recommendation that Respondent pay the costs of these disciplinary proceedings and complete ethics training before petitioning this Court for reinstatement to the practice of law.
The Downside Of Flat Fees
The Indiana Supreme Court approved a consented-to public reprimand of an attorney on stipulated facts:
A criminal defendant hired Respondent to represent him for a flat fee of $15,000. Respondent prepared for trial three times, filed a motion in limine, conducted plea negotiations, prepared a sentencing memorandum, and represented the client at hearings on a motion to suppress and on sentencing. After the client was convicted on two felonies, Respondent tiold the client he had done much more work than anticipated and asked for additional compensation. The client agreed that Respondent would be paid $17,000 from a $20,000 cash bond. Respondent did not give the client written advice of the desirability of seeking the advice of independent counsel and the client did not consent in writing to the renegotiation of the fee agreement. Respondent began working on the appeal but the client soon terminated his representation. Respondent retained the additional $17,000 for his services until he refunded $5,000 to the client after the Commission filed its verified complaint against [him].
The misconduct involved violations of the business transaction rule and failure to refund an unearned fee. (Mike Frisch)
Advanced Reciprocal Discipline
The Maryland Court of Appeals has entered an order disbarring an attorney as reciprocal discipline based on a recent opinion imposing that same sanction in the District of Columbia. The attorney had failed to respond to Maryland's order to show cause why reciprocal discipline should not be imposed.
Judge Harrell, joined by Judge Murphy, dissented:
That [the attorney] failed to respond...does not relieve this Court of its duty to engage in critical thought regarding what proper discipline is in this matter. Before imposing reciprocal discipline, this Court has a longstanding and independent duty to consider what discipline is appropriate,i.e., consistent with Maryland attorney discipline jurisprudence.
The dissenters contend that disbarment in D.C. was premised on a finding of "reckless" misappropriation, which is not recognized as a disbarable offense under Maryland disciplinary law. The dissenters would impose an indefinite suspension of no less than 18 months.
Usually, this works the other way. Maryland is tougher on dishonest lawyers than D.C. There are reciprocal cases where D.C. reduces a Maryland sanction and Maryland increases the sanction on attorneys admitted in both jurisdictions. (Mike Frisch)