March 21, 2011
Highs and Lows
A former Massachusetts probate judge stipulated to a one-year suspension for misconduct summarized on the web page of the Board of Bar Overseers:
In 1986, the respondent and a business partner formed, and were the sole general partners in, a general partnership called High Low Properties. High Low owned two multi-unit rental properties in New Bedford.
In December 2002, the respondent was appointed to be a judge of the Massachusetts Probate and Family Court. He resigned from the court effective June 15, 2008. While a judge, he remained general partner of High Low but, consistent with requirements of the Code of Judicial Conduct, initially caused his business partner to assume full managerial responsibilities over the two properties that the partnership owned.
In late 2004, the relationship between the respondent and his business partner suffered a rupture. The partner abandoned, and the respondent took over, management of the High Low properties.
In 2005, a roofer brought a small claims action against the respondent’s business partner, seeking to collect the balance due for work done in April 2004 at one of the properties owned by the partnership. The roofer had done the work at the partner’s request pursuant to a written agreement signed by the partner.
A trial was scheduled for September 2, 2005 in New Bedford District Court. The partner caused a subpoena to be served on the respondent, requiring the respondent to appear for the trial. On August 25, 2005, the respondent filed a “Motion to Quash/Motion to Excuse Presence,” asking that the subpoena be quashed or that the respondent be excused from appearing at the trial.
In support of his motion, the respondent filed a notarized affidavit in which, among other matters including that the respondent would be on vacation on the trial date, he swore under the penalties of perjury that (a) he had “not been actively involved in the management of [the partnership’s real estate] for many years,” and (b) his partner “has acted as property manager for the premises and has been the person who handles all matters pertaining to repair and maintenance of the buildings as well as all tenant related matters, the collection of rent and payment of building-related expenses.” However, the respondent, and not his partner, had been managing the High Low properties since at least December 2004. The respondent’s conduct in making false statements in the affidavit was in violation of Mass. R. Prof. C. 3.3(a)(1) and 8.4(c), (d) and (h).
In mitigation, no harm resulted from the respondent’s conduct. The affidavit was not evidence. In addition, the trial was in fact continued for administrative reasons and the business partner did not notify the respondent or take action to cause him to appear on the new trial date. The business partner admitted liability in the action and was advised by the trial court that he had remedies to seek contribution from the respondent.
The Hills Of Madison County
An attorney who was arrested for operating a vehicle while intoxicated when employed by the Madison County prosecutor's office as a deputy prosecutor was publicly reprimanded by the Indiana Supreme Court. The attorney had resigned the position and completed a program devoted to assisting judges and lawyers.
The attorney had no prior discipline and had cooperated with the disciplinary process.
TheIndyChannel.com reports that the attorney's car crashed into the side of a hill. (Mike Frisch)
Malpractice Award Upheld
The Idaho Supreme Court affirmed a judgment for legal malpractice in a case brought against a lawyer who represented the wife in a divorce matter.
The attorney was found to have engaged in malpractice in that he had failed to inquire into the mental health status of his client after he had "many indications of [her] alleged mental incapacity." The client was involuntarily hospitalized a week before the trial. The attorney also had information that she was using methanphetamine. He also had "failed to investigate, inform, and advise [the client] with respect to the value of the couple's...property."
The attorney had filed but withdrawn a motion to withdraw as counsel due to an alleged "total communication breakdown."
I suspect the attorney wishes now that he had pressed the motion to withdraw. (Mike Frisch)
The "Inexplicable" Ninth Circuit
The United States Supreme Court today issued a per curiam decision reversing the United States Court of Appeals for the Ninth Circuit's finding that a trial prosecutor had struck two members of the jury venire for race-based reasons.
The court found the conclusion rejecting the proferred race-neutral bases for striking two jurors "is as inexplicable as it is unexplained." Two of the three potential African-American jurors were removed by peremptory challenges. (Mike Frisch)
Multiple Representation Results In Habeas Relief
The Georgia Supreme Court affirmed the grant of habeas corpus relief to a defendant who had been charged with kipnapping and pled guilty to false imprisonment. After serving a sentence of probation, the defendant (a lawful permanent resident from Uzbekistan) was scheduled for deportation. He then moved to vacate his plea. The State appealed the grant of the writ.
The kidnapping charges arose from an incident where the defendant was driving a car with a friend in the passenger seat. They
came upon a young woman, in whom [the friend] had a romantic interest, and they pulled up to her. [The friend] got out and physically forced the victim into the car, telling her that he loved her; the men drove around for a few minutes; and they released her near the place they had picked her up.
One attorney represented both defendants in the ensuing criminal case. The friend retained and paid the attorney. The defendant never met with the attorney outside the presence of the friend or the friend's family. The attorney never raised the issue of potential conflicts or told the defendant her could secure his own counsel. Nor did the attorney advise the defendant of possible deportation. (Mike Frisch)
Eighth Sanction Still Not Disbarment
A majority of the New Jersey Disciplinary Review Board posed the following question:
What discipline is appropriate for an attorney who does not learn from prior mistakes and who refuses to conform to the standards of the profession? As noted above, in addition to the above discipline, respondent has already been suspended several times: three months in a 2006 default; one year in 2008 for two consolidated default matters; six months in in 2008 (effective May 7, 2009); and one year for a 2009 default matter (effective November 8, 2009). Considered in isolation, respondent's [gross neglect] toward his client would have merited no more than an admonition. But this is respondent's eighth ethics case and his fourth default. (citations omitted)
The board majority had an answer: disbarment. A minority favored a three year suspension with fitness.
The Supreme Court agreed with the minority and imposed the three year suspension with fitness, effective January 27, 2009. The attorney must be evaluated by the lawyers' assistance program and, if reinstated, not practice as a sole practitioner and under the supervision of an approved attorney.
There are places where the default alone will get an attorney disbarred. (Mike Frisch)
March 20, 2011
Malpractice Claims Go Forward
The New York Appellate Division for the First Judicial Department held that a trial court had properly denied a motion to dismiss a legal malpractice action:
This action alleging legal malpractice arose out of defendants' representation of plaintiff in a lawsuit brought by Victoria Gallegos alleging employment discrimination against nonparty Elite Model Management Corp.; plaintiff, a 10% shareholder; and Elite's majority shareholder, director of finance and co-president. A bifurcated trial resulted in a verdict of liability against the Elite defendants and an award to Gallegos of approximately $2.6 million in compensatory damages and $2.6 million in punitive damages against the corporate defendant. On appeal, this Court affirmed the liability verdict but vacated the damages award and remanded the matter for a new trial on the issue of damages.
The instant complaint states a cause of action for legal malpractice by alleging that defendants were negligent in failing to proffer evidence at trial that plaintiff was no longer president of Elite when Gallegos's employment commenced, had limited authority to respond to Gallegos's complaints, and did not approve of or participate in the termination of Gallegos's employment, and that but for this negligence plaintiff would have been exonerated of liability and would not have incurred damages. Plaintiff also alleges sufficiently that Curtin mishandled the Gallegos in-house complaint and failed to apprise her of Gallegos's early settlement demand in the amount of $50,000.
The complaint further alleges that defendants' joint representation of all the Elite defendants in the Gallegos action, in violation of Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24) (effective through March 31, 2009), divided their loyalties and prevented them from asserting the defense that plaintiff's co-defendants were the primary, if not the sole, actors in the decision to terminate Gallegos's employment; because of their joint representation, defendants could not request that the jury apportion liability among plaintiff and her co-defendants, resulting in the automatic imposition of joint and several liability on her (see CPLR 1601). While these allegations of a conflict of interest or a violation of attorney disciplinary rules alone could not support a cause of action, liability can follow where the divided loyalty results in malpractice.
Nor is the defense of the attorney judgment rule available to defendants on this record. Defendants have offered no reasonable strategic explanation for the failure to introduce arguably exculpatory evidence.
The breach of fiduciary duty cause of action is not duplicative of the malpractice cause of action since it is asserted against Curtin in his capacity as a corporate director, not as an attorney.