April 8, 2011
"I Do What They Tell Me To Do"
The Pennsylvania Supreme Court accepted the consent disbarment of an attorney convicted of a series of felonies relating to his handling of drug money.
After the arrest of a client on drug charges, the attorney met with the client's mother. She brought $10,000 in cash. He told her to bring more and she returned with an additional $10,000. The mother saw the attorney meet with someone identified as "Money." Money was described as a male in his 30s with dreadlocks, wearing shorts and work boots. The attorney may have given some of the money to Money.
The mother cooperated with the police. She sought return of the cash, but was told by the attorney that the money belonged to a Texas drug cartel. He further advised her that he was "on retainer to the cartel and that 'I do what they tell me to do.' " The attorney told her he had given the drug money to a drug dealer named Omar.
The client was later tried in federal court and represented by the Federal Public Defender. He was unaware of the fee arrangements as Omar had arranged to have the attorney represent him. (Mike Frisch)
The Louisiana Supreme Court imposed a reciprocal reprimand based on the action of the Tennessee Supreme Court. The misconduct:
...respondent was retained to represent the defendant in a criminal matter. The defendant was employed by a company which is also a client of respondent’s, and the company paid respondent’s legal fees on behalf of the employee. When the employee failed to reimburse the company for these sums, respondent, pursuant to his representation of the company, acted as a collection agent for the company against its employee and participated in the termination of the employee from the company. Respondent also disclosed the amount of fees charged in the employee’s case to the company, which withheld that amount from the employee’s last paycheck in violation of Tennessee law. Respondent thereafter participated in litigation adverse to the employee and which was substantially related to the conduct that was the alleged reason for the employee’s termination from the company.
The sanction imposed in Tennessee was public censure. (Mike Frisch)
The Pennsylvania Supreme Court has imposed a stipulated sanction of a six-month suspension of an attorney who had practiced in violation of an administrative suspension for non-compliance with CLE obligations. The conduct took place over an approximately one month period but included a jury trial.
The attorney had suffered serious health issues, a fire that had destroyed his family home, a terminally ill mother and a 22 year old child who had a tumor. These mitigating factors also caused severe financial strain and contributed to the violations.
I just posted a disciplinary case from New Jersey and suggested that the sanction was too lenient. Is a six-month suspension too harsh here?
We have previously observed that Pennsylvania is particularly unforgiving where there is unauthorized practice after an administrative suspension. It is also noteworthy that the attorney agreed to the suspension.
The Kansas Supreme Court has imposed a published censure of an attorney for his conduct in an immigration matter.
After a hearing was scheduled, he sought a continuance. Denied. He sought to withdraw. Denied. He again sought to withdraw. Denied. He sought to conduct the hearing by telephone. Denied.
He had three telephone conversations with a court employee in which he engaged in abusive conduct, which resulted in disciplinary charges. The immigration Court initiated a proceeding that resulted in an agreed censure. The Kansas court here imposed reciprocal discipline, as Nebraska previously had done.
The court's decision does not specify the exact nature of the offending conduct. In mitigation, the conduct was found to be a result of the attorney's bipolar diorder. He was in a manic phase during the conversations. (Mike Frisch)
Censure For Commingling And Dishonesty
A New Jersey attorney with an unblemished disciplinary record was the subject of a random compliance audit of his trust account. The audit revealed that his business account had been dormant for years because of an IRS levy. The attorney thereafter "to circumvent the levy...had been using the trust account for both business and trust matters."
There are are couple of problems here, including years of commingling (but no misappropriation) and conduct involving dishonesty. The attorney did keep records of his handling of entrusted funds but did not not perform regular reconciliations of the account. He fully cooperated with the ensuing investigation.
A stipulation was entered into between the attorney and the Office of Attorney Ethics. The Disciplinary Review Board recommended, and the Supreme Court imposed, a censure.
There are places where an attorney would get a far graver sanction for these violations. Apparently, New Jersey is no longer such a place.
The attorney was admitted in 1971. (Mike Frisch)
For The Sake Of The Children
In a wrongful death action in which surviving children were represented by separate counsel, the Florida Supreme Court remanded for a determination of proper legal fees. The court concluded:
As we explained in Wiggins, in those circumstances where “all of the survivors have a commonality of interest and a single attorney can represent those interests,” id. at 448, that single attorney will be entitled to attorney’s fees based on the entire recovery. However, where there is no commonality of interest among the survivors, the personal representative’s attorney cannot represent all of the survivors without their consent. Id. at 450 (citing Rule Regulating the Florida Bar 4-1.7, which prohibits an attorney from representing adverse interests unless specific requirements are met, including that each affected client gives informed consent to such representation). Further, in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each. For example, where two competing survivors are represented by separate attorneys throughout the litigation and both successfully prosecute a claim to judgment, then the fees should ordinarily be awarded out of the survivor's respective recoveries.
In the instant case, it is unclear what part, if any, the Wagner firm played in securing the overall settlement. There is also no record evidence that the Wagner firm secured any increase in the settlement recovery for Larry and Robert. Accordingly, we conclude that the personal representative’s attorney KLG should be compensated out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the Wagner firm for the work they performed in representing Larry and Robert in the proceedings.
April 7, 2011
Client Loves Attorney Like A Son But Complaint Leads To Reprimand
The New Jersey Supreme Court has imposed a reprimand for a prohibited business transaction with a client. The client and attorney had a close relationship for many years, "akin to that of a mother and a son." Although the complainant had filed a grievance against the attorney, she stated that "she still loved him..."
The attorney had previously represented the complainant in an accident case that settled without him charging any fee.
The misconduct took place during the attorney's divorce. The client (she still considered him her attorney) obtained a companion credit card for the attorney's use. She believed he would pay the charges. He testified that he did not consider her as his client but rather his "surrogate mother." He did not comply with the formalities required in a business relationship with a client and falsely assured her that he would make the account current.
The attorney later drafted a will and power of attorney for the client. He failed to disclose more than $41,000 in principal and interest on the companion card.
The client got dunned for the past balance due, retained another attorney and learned of the unpaid balance. She filed a grievance because of the inability to communicate about the problem.
The Disciplinary Review Board found that, even though there was no current representation at the time of the credit card arrangement, the client "had a reasonable expectation, based on their longstanding personal and professional relationship, that he would protect her interests. "
In a reciprocal discipline matter where California had imposed a 90 day suspension followed by probation for one year, the Oregon Supreme Court concluded that a more stringent sanction was necessary to protect Oregonians:
Not only has the accused's misconduct spanned seven client matters, but, in handling some of those matters, the accused committed multiple ethical violations. For example, in one matter, the accused failed to communicate settlement offers to his client, and, once the case settled, delayed for a year in disbursing the settlement proceeds. In another matter, the accused settled the case and deducted his fee without court approval, as California law requires, and he charged an excessive fee that he later had to refund. The other five matters were variations on the two matters noted.
Considering the multiple instances of misconduct in which the accused has engaged over a span of seven clients, his prior disciplinary sanction, and the fact that the accused acted knowingly when he committed almost all the instances of misconduct, we suspend the accused from the practice of law in Oregon for a period of nine months. Unlike California, we do not stay any part of that period of suspension.
The accused is suspended from the practice of law for a period of nine months, commencing 60 days from the date of this decision.
California had imposed, but stayed, a one-year suspension in favor of the 90 days plus probation. (Mike Frisch)
Clerk In Hot Water
After sanctioning a circuit court clerk for failure to comply with civil rule requirements, the Mississippi Supreme Court discovered further lapses and ordered the clerk to show cause why additional sanctions should not imposed. The court then imposed a $5,000 sanction but afforded the court clerk the opportunity to mitigate the penalty by "report[ing] to [the court] on remedial measures in her two offices that would be expected to prevent recurrence of the same or similar errors."
The clerk filed a statement and, in an opinion issued today, the court found that she "has fallen far short of providing this Court any reason to believe a reduction in our most recent sanction...to be appropriate."
The clerk must also pay the sanction from personal funds and provide documentary proof that she has repaid the public account from which the sanction was paid. She also must file a "detailed, written narrative, under oath, meticulously describing what, if any, procedures and practices she has implemented" to assure future rule compliance.
An article from MS Litigation Review linked here provides details about the monetary sanction that had been imposed. (Mike Frisch)
Sexual Fingerprint Admissible
A conviction for 55 counts of possession of child pornography was affirmed in part and reversed in part by the South Dakota Supreme Court. The court found the 100 year sentence to be grossly disproportionate to the offense.
The court found that the admission of evidence of the defendant's semen on a disc that contained child pornography was not an abuse of discretion:
A substantial number of the charged acts involved possession of videos of adult males masturbating on children. The presence of [the defendant's] semen made it more probable that [he] had been sexually stimulated by the discs' content. Thus, this was a "sexual fingerprint" that was highly probative of the identity of the possessor and the possessor's knowledge of the discs' pornographic content. Further, this type of sexual fingerprint does not tend to prove such issues by illegitimate or unfair means.
Pro Hac Attorney Not Disbarred For Misconduct
A Texas attorney was admitted pro hac vice in North Dakota in a domestic relations matter. He was charged with a number of disciplinary violations relating to his handle the matter of the matter (badly) and not paying fees required as a condition of his pro hac status. The North Dakota Supreme Court imposed discipline that prevents him from future practice there, including on a pro hac basis. The attorney also must make restitution.
A concurring opinion expresses concern about Disciplinary Counsel's "stacking" of charges. The concurring opinion notes that some of the charges are in conflict and were only saved here because the attorney defaulted.
The court rejected the proposed sanction of disbarment. (Mike Frisch)
Two Justices In A Fix
Two town court justices were sanctioned in related matters by the New York Commission on Judicial Conduct. A press release reports that one was censured and the other resigned from office.
The censured justice "a part-time judge who is also a school transportation official, improperly intervened on behalf of a co-worker whose ticket was returnable before [the removed judge]" who was "charged, among other things, with granting or appearing to grant special consideration to the defendant in the same case."
Three commission members favored admonishment rather than censure. The Commission Adminstrator had recommendment removal from office.
April 6, 2011
Gallagher on Lawyer Roles and Ethics in IP Practice
Posted by Alan Childress
I received an interesting reprint yesterday in the mail, intersecting legal ethics and IP practice -- particularly discovery methods in the wake of Qualcomm -- using an empirical research approach and lawyer interviews. William Gallagher (law, Golden Gate U) published in John Marshall's IP law review (also on SSRN) an article entitled IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators. Its abstract:
This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.
April 6, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, The Practice | Permalink | Comments (0) | TrackBack
The Writing On The Wall
The New Appellate Division for the Second Judicial Department affirmed an order dismissing claims by a legal writing professor at Hofstra:
Beginning in July 2000, the petitioner was employed as a legal writing teacher at the Hofstra University School of Law (hereinafter the law school). In the fall of 2008, he submitted an application for reappointment and for a five-year contract as a member of the legal writing faculty. The petitioner's application was subsequently denied on the ground that there was a significant decline in his teaching performance since the execution of his last contract.
The petitioner commenced this proceeding to review the denial of his application for reappointment and for a five-year contract. The petition alleged, among other things, that the decision not to offer him a five-year contract was arbitrary and capricious and was made in violation of the rules of the law school, which set forth the procedure to be followed when considering applications for reappointment. The Supreme Court denied the petition and dismissed the proceeding. We affirm.
"One of the most sensitive functions of the university administration is the appointment, promotion and retention of the faculty" (New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 322). Courts will "only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning" (Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28, 38).
Accordingly, "judicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited" (Matter of Perinpanayagam v University at Buffalo, 39 AD3d 1220, 1221). "In reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious" (Matter of Lipsky v New York Inst. of Tech., 69 AD3d 725, 725-726; see Gertler v Goodgold, 107 AD2d 481, 487, affd 66 NY2d 946; see also Matter of Gray v Canisius Coll. of Buffalo, 76 AD2d 30, 36-37).
Contrary to the petitioner's contention, the determination that there was a significant decline in his teaching performance since the execution of his last contract was not made without sound basis in reason or regard to the facts, and the petitioner failed to demonstrate that the determination to deny his application was arbitrary or capricious (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231). Moreover, even if the law school's Committee on Appointment, Reappointment, and Promotion of Clinical Skills, Legal Writing, and Academic Support Faculty (hereinafter the Committee) failed to conduct the exact number of classroom and student conference observations outlined in the rules promulgated by the law school, we conclude that the observations undertaken by the Committee constituted substantial compliance under the circumstances (see Gurstein v Bard Coll., 280 AD2d 264; Matter of Loebl v New York Univ., 255 AD2d 257, 258-259; see also Tedeschi v Wagner Coll., 49 NY2d 652, 660-661).
Furthermore, the petitioner's contention that the reappointment process failed to include a decision by "the Law School Faculty" does not require reversal. The record discloses a rational basis upon which the respondents could have concluded that the petitioner waived his right to this portion of the reappointment process (see Matter of Lipsky v New York Inst. of Tech., 69 AD3d at 725-726), especially given his failure to raise this issue in the context of the administrative appeal which was provided to him at his request (see Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1610).
Michigan Supreme Court Denys Review In False Documents Case
The Michigan Supreme Court denied review in a case where the Attorney Discipline Board had increased a suspension from 60 to 120 days. The attorney had been conviction of driving while impaired. He then violated probation by testing positive for alcohol, failing to document attendance at court-ordered meetings and falsifying attendance sheets for AA meetings.
Chief Justice Young dissented from the denial of review, and would impose a suspension of 180 days "requiring the [attorney] to demonstrate affirmatively that he is worthy of reinstatement..." The Chief Justice viewed the deliberate fabrication of documents to mislead the court that had imposed probation as conduct that requires a more severe sanction. (Mike Frisch)
Cease And Desist
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today approved a consent decree in which the operator of a Youngstown “bankruptcy petition preparer” business agreed to cease and desist from conduct constituting the unauthorized practice of law, and to stop using the business name “Bankruptcy for Less” or any similar name in his business.
The respondent in the case...was assessed a civil penalty of $250 for each of nine counts of unauthorized practice of law, resulting in a total penalty of $2,250.
In its 7-0 per curiam opinion, the Court adopted findings by the Board on the Unauthorized Practice of Law that in his dealings with the nine clients cited in the complaint against him, [he] went beyond the non-attorney petition preparation services authorized by Section 110, Title 11 of the U.S. bankruptcy code by giving legal advice, preparing court documents beyond the initial bankruptcy petition, and providing or directing clients to sample court documents to be relied upon in drafting documents to be filed with the court.
The court's opinion is linked here. (Mike Frisch)
April 5, 2011
Riding In Cars With Judges
The New York Commission on Judicial Conduct has censured a family court judge who made "an ex parte, out-of-court excursion with a Treatment Court participant, in which he took the defendant for a ride in his personal car over a lunch recess and spoke privately with him about personal issues, including the defendant's drug use and his mother's death."
The censure concluded that "[s]uch behavior, no matter how well-intentioned, was inappropriate and showed extremely poor judgment, as [the judge] has conceded." (Mike Frisch)
The Return Of The Prodigal Son
Can you burglarize a home that you partly own?
Yes, according to an opinion issued yesterday by the South Carolina Supreme Court.
By virtue of intestate succession, Singley inherited a 12.5 percent interest in his childhood home from his father in August 2001. His brother owns an additional 12.5 percent, and his mother owns the remaining 75 percent. Singley remained in the house until his early twenties, and then returned again in April 2005. He resided there for three weeks, until his mother "put him out" of the house. He did not return his key to his mother, telling her that he had lost it. As between Singley and his mother, Singley did not have permission to return to the house. It was not until one night in early October 2005, some six months later, that he did so.
On that night, Singley's mother was at a bar with friends, returning home at approximately 2:30 am. While she was out of the house, Singley entered through a back window after climbing a small stepladder. When she returned, Singley jumped out from behind her and put a knife to her throat. He threatened to kill her if she screamed, and then demanded money from her. After she complied with his requests, he forced her into her bedroom and tied her to the bed using jogging pants, medical tape, and pajamas. He threw her telephone out the window and ordered her to wait twenty minutes before attempting to find help. Once she was sure Singley had left and would not return, his mother freed herself from her restraints and went to a neighbor's house to call the police. Police arrested Singley at his residence, which was around the corner from his mother's house.
Singley was indicted for first degree burglary, armed robbery, and kidnapping. Singley moved for a directed verdict on all charges. As to the burglary charge, Singley argued that because he is a part owner of the house and there was no order of protection or similar legal instrument divesting him of his right to enter it, the State failed to prove that he entered the house without the consent of a person in lawful possession. In essence, he argued that because he was a person in lawful possession, he could enter freely without his mother's consent. The circuit court denied Singley's motion. The jury found Singley guilty of burglary and armed robbery, but it acquitted him of kidnapping. The circuit court sentenced Singley to consecutive sentences of life without parole. On appeal to the court of appeals, Singley challenged only his burglary conviction. State v. Singley, 383 S.C. 441, 441, 679 S.E.2d 538, 539 (Ct. App. 2009). He repeated the arguments he made at the directed verdict stage that one cannot commit burglary by breaking into one's own dwelling. Id. The court of appeals affirmed, holding that Singley's mother was the sole possessor of the dwelling when the burglary occurred, and therefore her consent was needed to enter.
The court concluded:
...we wish to emphasize that the inquiry into whether a defendant has a sufficient possessory interest in the dwelling burglarized is highly factual. A defendant's ownership interest in the dwelling will not preclude a conviction of burglary as a matter of law. Rather, the jury must determine whether, under the totality of the circumstances, the defendant used the dwelling in such a manner that it could be said to be his own home, therefore making him a person in lawful possession.
Discovery Tactics Result In Suspension
The web page of the Ohio Supreme Court reports:
In a 7-0 decision announced today, the Supreme Court of Ohio suspended the law license of [a]Cleveland attorney...for 18 months, with the final 6 months stayed, for professional misconduct arising from his delay and obstruction of the discovery process in a divorce action and lack of candor while representing a different client in a legal malpractice case.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in the divorce action, [the attorney's] failure to comply with repeated discovery requests from the opposing party over a period of many months and his evasive tactics and testimony regarding the information sought through discovery violated the disciplinary rules that prohibit an attorney from unlawfully obstructing another party’s access to evidence, knowingly disobeying an obligation under the rules of a tribunal, engaging in conduct that is prejudicial to the administration of justice, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
Writing for a unanimous Court, Justice Judith Ann Lanzinger agreed with the disciplinary board’s finding that [the attorney's] testimony under cross-examination by opposing counsel regarding what discovery documents had been provided and when “clearly demonstrated that he was intentionally attempting to ‘obfuscate and hinder the truth-seeking process.’”
“We have repeatedly held that the practice of law is ‘a learned profession grounded on integrity, respectability, and candor ...’” wrote Justice Lanzinger. “It is clear that these attributes were missing from respondent’s conduct: How difficult can it be to show that you sent discovery responses to opposing counsel? For more than a year, respondent confounded three attorneys in their search for discovery documents. His evasive and obstreperous conduct alone is clear and convincing evidence that he violated the rules of professional conduct. Discovery is a critical part of the litigation process, and it often takes up a majority of the time that lawyers spend in litigating a case. ... Respondent’s lack of diligence in responding to requests for discovery is the equivalent of obstructing discovery. Therefore, as determined by the board, there is clear and convincing evidence that respondent engaged in evasive conduct that was prejudicial to the administration of justice.”
The opinion is linked here. (Mike Frisch)
April 4, 2011
An Affair To Forget
The Maryland Court of Special Appeals affirmed the dismissal of a lawsuit "arising out of an affair between a Josephite priest and a church organist which allegedly occurred over fifty years ago." The plaintiffs are two children allegedly born of the affair.
The suit alleged that the Josephite Fathers and the priest had covered up the affair and concealed the identity of the children's father. The plaintiffs contend that recent DNA testing identify the Father as "probably" the father.
The suit was brought against the Father's estate, the society of Josephite Fathers, the Archbishop of Baltimore and the Archdiocese of Baltimore on a variety of theories, all of which were found legally insufficient to establish liability. (Mike Frisch)