Friday, April 29, 2011
The Mississippi Supreme Court rejected a call by its Commission on Judicial Performance to remove a county justice court judge from office and imposed a suspension of 90 days.
The allegations involved a criminal defendant who appeared before the judge and had a fine imposed. That afternoon, he spotted her at a gasoline station and offered her a ride. She accepted and reminded him where he knew her from. They discussed the fine. She alleged that he had fondled her and sought oral sex. She promptly complained about the behavior. The judge had told an investigator that the "devil got ahold of his tongue and made it wicked."
The court found there were improper ex parte contacts with the defendant and other court officials concerning the fine ($239) but that a "consensus" of the court did not believe that the sex allegations were proven.
In rejecting the commission's findings and recommendation, the court thanked them for their efforts.
DailyLeader.com had reported on the matter when it was pending before the court. This quote:
"I just got caught up in a bunch of junk," he said. "It's her word against mine. She jumped in the car and all we did was make the block, and there wasn't any talk about anything sexual."
The Presiding Disciplinary Judge approved a Conditional Admission of Misconduct submitted by the parties and suspended [an attorney] from the practice of law for a period of one year and one day, with conditions, effective March 31, 2011. Respondent recklessly violated her duties of honesty to the public and to the legal profession when she, while serving as an executive director of an organization, paid herself a salary that was more than the agreed upon rate, used the organization’s funds for personal expenses, and denied the organization the use of these funds for a period of time. Respondent has made good faith efforts to pay restitution to her client. Her misconduct constituted grounds for the imposition of discipline...
It's an epidemic. (Mike Frisch)
April appears to be a month for billing misconduct discipline in Colorado. The web page of the Presiding Disciplinary Judge reports a stayed suspension with probation for two years as agreed discipline in the following circumstances
Respondent recklessly violated his duty to treat his clients honestly when he requested and received reimbursement for identical business trip expenses by more than one client and denied his clients the use of these funds for a period of time. Respondent made good faith efforts to pay restitution to his clients.
A question posed by the Colorado Hearing Board
Attorneys must adhere to certain standards of conduct that define the duties they owe as professionals, including the obligation to charge reasonable fees according to reasonable terms. In this matter, Respondent drafted a hybrid fee agreement allowing him to retain hourly fees upon his withdrawal from the case, rather than seek fees before a court under quantum meruit. Respondent also pressed his client for trial retainers not contemplated in the fee agreement, and he charged her for fees and expenses associated with his travel back to Colorado after he moved his practice to Massachusetts. What, if any, is the appropriate sanction?
Answer: public censure.
The hearing board found the hybrid agreement not per se improper and not unreasonable in the circumstances. Nor were violations found in the attorney's allegedly bullying behavior over expenses.
The travel billing, however, ran afoul of ethics rules
Guided by fundamental notions of fairness, we are persuaded that Respondent violated Colo. RPC 1.5(a) by billing [the client] for his travel time: Respondent intended as early as 2005 to eventually move thousands of miles away, yet he never alerted [her] to these plans prior to entering into their attorney-client relationship. Indeed, he notified [her] of his change of residence only a little more than a month before he moved, at which point she faced the unenviable choice of seeking another attorney to take her case or complying with Respondent’s demands. Had Respondent been more candid, [the client] could have chosen other counsel in Colorado even before signing the fee agreement or, at a minimum, before paying Respondent substantial sums for handling her case. Because these fees appear excessive and unfair in this context, we find Respondent violated Colo. RPC 1.5(a).
We likewise conclude Respondent violated Colo. RPC 8.4(h) by charging [the client] for his travel-related expenses. Not only does Respondent’s conduct strike us as fundamentally unfair, but it contravenes the plain language of the fee agreement he drafted, which mandates he seek [her] written approval of expenses exceeding $3,000.000. Because he did not do so, and because his failure to consult with [her] forced her to expend unnecessarily thousands of dollars, we find Respondent’s behavior does not withstand scrutiny when measured against the language of Colo. RPC 8.4(h), which proscribes conduct adversely reflecting on a lawyer’s fitness to practice law.
Opinion No. 4-2011 of the South Carolina Advisory Committee on Standards of Judicial Conduct:
A full-time magistrate’s spouse is the primary investigator for that county’s Solicitor’s office. The magistrate inquires into the propriety of trying criminal cases, setting bonds and holding preliminary hearings under these circumstances.
A full time judge may not try criminal cases where the judge’s spouse is the primary investigator for the Solicitor’s office in the same county.
This Committee has previously addressed similar situations. In Opinion No. 8-2007, the Committee concluded that a full-time magistrate could not serve in the same county where the judge’s spouse was employed by the sheriff and might appear before the magistrate. Additionally, in 12-2005, the Committee found that a part-time bond magistrate should not serve where the judge was married to a captain in the detective unit in the same county, and the spouse or spouse’s employees would appear before the judge requesting the issuance of warrants. In both of the previous opinions, the Committee found that the situations would violate Canons 1 and 2 of the Code of Judicial Conduct because they created the appearance of impropriety and would cause the public to question the impartiality of the judiciary.
In this situation, the judge’s spouse and/or the spouse’s employer—the Solicitor—would appear before the judge in various criminal proceedings. Thus, as in the previous opinions, this would result in violations of Canons 1 and 2, by creating the appearance of impropriety and causing the public to question the impartiality of the judiciary. Therefore, the magistrate should not serve in criminal cases under these circumstances.
The Massachusetts Supreme Judicial Court affirmed the decision of a single justice to suspend an attorney for three years with the third year stayed, in a case involving intentional misuse of an advanced fee. The attorney had a reputation as as a dedicated attorney for criminal and juvenile defendants. The misconduct was in an area of practice with which the attorney was not familiar.
The hearing committee had considered mitigating factors, as the court recites
In determining its recommended sanction, the hearing committee considered mitigating and aggravating factors. In mitigation, the hearing committee found that [the attorney] had a history of depression and was diagnosed with a major depression and posttraumatic stress disorder in January 2008. The hearing committee also found that her depression deepened after the death of three persons close to her in late 2006 and early 2007. Her boy friend disappeared in a boating accident in November, 2006, and his body was found the next month. Her grandmother, to whom she had been very close, suffered a stroke in January, 2007, and later died in May, 2007. Her aunt, who had helped [the attorney] care for her grandmother after the stroke, died shortly after the grandmother's death. The hearing committee found that [her] depression did not excuse her conduct, but that it impaired her judgment and contributed to her violations.
As to sanction, the court found as a basis to depart from the presumptive sanction of disbarment
We...conclude that the single justice's sanction of a three-year term suspension, with the third year stayed, is not "markedly disparate" from other similar disciplinary cases involving the intentional misuse of funds advanced by a client for the payment of fees, taking into consideration [the attorney's] additional violations and the mitigating factor of her depression. Because the sanction imposed by the single justice is not markedly disparate from the sanctions in comparable cases and is sufficiently severe to protect the integrity of the bar and to deter future misconduct, we affirm. We clarify that the third year of suspension is stayed for a two-year probationary period, with the conditions of probation recommended by the hearing committee: that [the attorney] continue to receive treatment for her depression, that she limit her law practice to criminal and juvenile matters, and that she be mentored by an attorney experienced in criminal and juvenile law who is satisfactory to bar counsel.
The court noted that the violation involved fee advances and declined to extend the presumption of disbarment to such situations
...we decline to apply the presumptive sanctions of indefinite suspension or disbarment from Schoepfer, supra at 187-188, and Three Attorneys, supra at 835-837, to all cases involving intentional use of funds advanced for the payment of services with either intent to deprive the client of funds or actual deprivation. While disbarment or indefinite suspension may be the appropriate sanction for such a violation depending on the circumstances of the case, we conclude that the potential for confusion, misunderstanding, or ambiguity as to whether the funds belong to the client or the attorney militate against so severe a presumptive sanction.
The aggravating factors included multiple clients and false responses in the bar matter.
The link to the opinion does not work. The case is Matter of Sharif, decided April 27. (Mike Frisch)
Thursday, April 28, 2011
An Illinois Hearing Board has recommended a censure and a course in professionalism of an attorney who had regularly engaged in the practice of law after suspension for failure to pay his annual registration fee. The hearing board did not buy his explanation:
The theories advanced in Respondent’s defense do not excuse the misconduct. One of these theories was that the ARDC is obligated to educate members of the bar on the need to register each year. This theory is not supported by Respondent’s observation that the mission of the ARDC includes an educational component. The common maxim that ignorance of the law is no excuse applies particularly to attorneys. In re Cheronis, 114 Ill. 2d 527, 502 N.E.2d 722 (1986); In re Peterson, 98 SH 19, M.R. 15331 (Feb. 1, 1999). In particular, all attorneys are presumed to know the Supreme Court Rules. In re Scroggins, 89 SH 689, M.R. 8477 (Sept. 29, 1992) (Review Bd. at 8). That presumption, and the concomitant responsibility to follow those Rules, certainly applies to the rules governing attorneys’ ability to practice their profession.
While Respondent testified he did not realize failure to register and pay the fee would cause him to be removed from the Master Roll, he also testified he knew he had to register and pay the annual fee. The "lack of education" defense is particularly unpersuasive when the Respondent admits he knew what was required of him. Further, any claimed lack of understanding of the consequence of failing to register is disingenuous, at least in relation to 2009, because the preceding year Respondent was removed from the Master Roll for precisely the same conduct.
Respondent asserts he had difficulty with his mail service, and did not receive all mail addressed to him and sent to his address. However, a failure to receive the registration notice does not excuse the failure to register. S.Ct.R. 756(c). Further, a person attempting to operate a legal practice from a location at which mail service is often unreliable or insecure should make arrangements, such as obtaining a Post Office Box, to securely receive mail related to his practice.
If this had happened in Pennsylvania, the attorney would be facing a lengthy suspension. (Mike Frisch)
The Maryland Court of Appeals has reversed a criminal conviction because "[p]ages allegedly printed from MySpace were not properly authenticated...because someone other than the purported creator could have created the profile and also posted the comment in question, when the State identified only the date of birth of the creator and her visage in a photograph on the site."
The charges involved a death in Cecil County. The MySpace profile at issue allegedly belonged to the defendant's girlfriend, who testified in the case and was alleged to have threatened a witness as "Sistasouljah." The attempt to authenticate came not during cross-examination, but through a police witness. The printed page said:
FREE BOOZY!!!! SNITCHES GET STITCHES !! U KNOW WHO YOU ARE!!
Justice Harrell, joined by Justice Murphy, dissented. (Mike Frisch)
Wednesday, April 27, 2011
An Illinois Hearing Board has recommended a suspension of six months and UFO (until further order) of a 1994 University of Chicago law grad for bad faith failure to repay student loans. The loans were taken out in 2005 for a graduate business degree. The hearing board found that his employment at DLA Piper provided the means to pay off the loans.
The hearing board's conclusions:
We conclude the Administrator proved by clear and convincing evidence that Respondent engaged in most of the misconduct alleged in Count I of the Complaint. Specifically, we conclude Respondent: 1) avoided in bad faith the repayment of an education loan guaranteed by the Illinois Student Assistance Commission or other governmental entity and 2) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rules 8.4(a)(4) and 8.4(a)(8) of the Illinois Rules of Professional Conduct. We did not find the Administrator proved by clear and convincing evidence that Respondent engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
The uncontroverted evidence established that Respondent applied for and received education loans in the amount of $78,483 in 2005 to assist him in payment of the costs of obtaining his graduate business degree. It is also undisputed that Respondent’s loans became due in October 2006, that he failed to make any payments at that time, that in August 2007 he asked for and received an administrative forbearance from December 2006 to December 2007, and that since his forbearance ended Respondent has only made one voluntary payment on the loans. The evidence further established that Respondent was employed at DLA Piper from April 2007 until February 2009 and that he received severance pay until May 2009. Respondent’s starting annual salary at DLA Piper was $190,000 and was increased during the time he worked there. Respondent had the means to repay his loans while he was working at DLA Piper and chose not to fulfill his obligation. Accordingly, we find the evidence clearly establishes that Respondent avoided the repayment of his student loans in bad faith in violation of Rule 8.4(a)(8).
Respondent’s contention that he was unaware of his obligation to repay his student loans is contradicted by his contact with ISAC and IDAPP in 2007 and 2008. The evidence showed that Respondent updated his address with IDAPP personnel and requested an administrative forbearance in August 2007. Respondent also had phone contact with ISAC personnel in October 2007 and updated his address at that time. Respondent acknowledged in his deposition that he had previously received mail at the P.O. Box ISAC sent Respondent letters to from October 2007 to August 2008. Additionally, Respondent had phone contact with ISAC personnel in January 2008 after his administrative forbearance ended and he agreed to begin repaying his student loans at that time.
Accordingly, we do not find Respondent’s claim in the affirmative defense to Count I in his Answer that ISAC and IDAPP did not have his correct contact information at the time his administrative forbearance ended credible. Additionally, Mr. Pierce’s testimony established that Respondent was obligated by the promissory notes that he signed for his student loans to notify ISAC and IDAPP of any address changes. Therefore we conclude that even if it was credible, Respondent’s affirmative defense is not a valid explanation for his failure to repay his student loans.
The attorney also was found to have failed to cooperate with the bar investigation. His explanations were found to be incredible. (Mike Frisch)
The Oklahoma Supreme Court has reinstated an attorney who had been suspended for two years and a day for perjury and deceit. The court described the misconduct:
The record reflects that [the attorney] was admitted to the Oklahoma Bar Association in 1990. He moved back to his hometown of Eufaula, Oklahoma, and began practicing law. Shortly afterwards, he became involved in business matters with Joe Johnson, the mayor of Eufaula and a long-time friend. The complaint against [him] that led to his suspension was filed on July 2, 2001, and was based on three matters referred to as The Cargile Matter (11 counts), The Water Companies (3 counts) and MegaStar Entertainment Center (2 counts). [The attorney] was exonerated on numerous charges, including the two counts related to MegaStar. A detailed account of [his] misconduct and the evidence that led to his suspension is set out in this Court's opinion...The serious misconduct for which [he] was disciplined included falsely notarizing an affidavit, inducing his secretary to falsely notarize an affidavit, lying under oath on several occasions and concealing from the Oklahoma Corporation Commission, the city council and the public that Mayor Johnson owned an interest in two water companies. [He] was not charged with or convicted of any crimes.
The court was persuaded that reinstatement is appropriate:
In the present matter, there has been a considerable lapse of time between the misconduct and the application for reinstatement. The petitioner was not charged with or convicted of any crime. The petitioner had not been disciplined previously. The evidence before us reflects petitioner's consciousness of his wrongful conduct and of the shame and disrepute he has brought upon himself, his family and the legal profession. The evidence reflects that his conduct since suspension has been exemplary. The petitioner's testimony reflects his regret and remorsefulness, and his dedication to setting a good example to atone for his past misconduct. The evidence reflects that [he] does not pose a threat to the public nor is there a threat of repeat behavior. The Respondent has shown that reinstatement is important to him by meeting the mandatory continuing legal requirements each year and keeping current on oil and gas law.
The evidence reflects that [he] has proven himself rehabilitated according the rules of this Court and that he is entitled to be reinstated. [He] established by clear and convincing evidence that he has not engaged in the unauthorized practice of law in the State of Oklahoma, that he possesses the competency and learning in the law required for reinstatement to the Oklahoma Bar Association and that he possesses the good moral character that will entitled him to be readmitted. By granting the petition for reinstatement, we are giving [him] a second chance. The petitioner is aware that his law license is dependent upon his maintaining the high standards required of a member of the Bar.
The bar had taken no position on reinstatement. One of the petitioner's character witnesses was former Congressman J.C.Watts. (Mike Frisch)
An attorney who was suspended for a year and a day in Colorado was disbarred as reciprocal discipline by the Maryland Court of Appeals. The misconduct involved (1) the attorney's knowing failure to make pertinent disclosures concerning his interest in real property and related transactions in his personal bankruptcy and (2) false testimony in that proceeding.
The Maryland court noted that, while it is "inclined, but not required, to impose the same sanction" as the discipling court, an examination of Maryland precedent dictated a more severe result. (Mike Frisch)
The Wisconsin Supreme Court held that an attorney in a bar discipline matter had failed to perfect an appeal and dismissed his exceptions:
We conclude that Attorney...'s conduct in this court warrants the dismissal of his appeal in this matter. He was given three separate deadlines to file his brief, and he ignored each of them. Although neither of his extension motions was filed prior to the expiration of the then-existing deadline, this court granted him extensions of time to file his brief. In both of those extension orders, Attorney...was given a specific deadline and was told that no further extensions would be given. Indeed, in his second extension motion Attorney...stated that he simply needed all of the time he had originally requested so that he could file his brief. Although he was ultimately granted the full extension that he sought, he never filed any brief, leading to the inference that the extension requests were mere ploys for delay. We conclude that his repeated disobedience of this court's briefing orders constitutes egregious conduct that warrants the dismissal of his appeal.
Alternatively, his unexplained failure to file any brief after repeatedly asking for and being granted more time to do so constitutes an abandonment of his appeal. Moreover, although the dismissal of an appeal is rightly considered a drastic remedy, we note that the impact of a dismissal in an attorney disciplinary proceeding is much less than in an ordinary civil appeal. While a dismissal in an ordinary appeal terminates the case and leaves the judgment against the appellant intact, in attorney disciplinary cases this court still reviews the referee's report, although we do it as if no appeal had been timely filed under SCR 22.17(2). We still review the referee's report and recommendation because it is this court that ultimately determines whether an attorney has committed professional misconduct and, if so, what the appropriate discipline should be.
The court majority imposed a five-month suspension. Two justices would add a month, which would require the attorney to petition for reinstatement. (Mike Frisch)
Tuesday, April 26, 2011
The Maryland Court of Appeals reversed a criminal conviction for common law murder because the trial court had disqualified retained counsel. The attorney for the co-defendant brought to the court's attention that one of the three retained counsel had spoken to her client and that such conduct involved potential Rule 1.18 (duty to prospective client) and/or 4.2 (unauthorized communication with represented person) violations. The State expressed concern that the attorney whose conduct was at issue had improperly coached a witness.
The trial court had conducted a hearing and ordered disqualification. Here, the court agreed with the defendant that the basis for disqualification was "sketchy." The trial court must conduct an "adequate inquiry into the circumstances underlying the purported conflict to determine whether there is an actual or serious potential for conflict." The inquiry of the trial court was not sufficent. The error was structural and prejudice is assumed.
A concurring/dissenting opinion would defer to the trial court's exercise of discretion. (Mike Frisch)
The South Carolina Supreme Court issued and published a private letter of caution "to address what we see as a growing problem among the bar, namely the manner in which attorneys treat one another in oral and written communication. We are concerned with the increasing complaints of incivility in the bar.
The offending communication:
The formal charges in this matter arose out of a disciplinary complaint regarding an e-mail message Respondent sent to opposing counsel (Attorney Doe) in a pending domestic matter. Respondent represented the mother and Attorney Doe represented the father in an emotional and heated domestic dispute. It was within this context that Respondent sent Attorney Doe the following e-mail (the "Drug Dealer" e-mail):
I have a client who is a drug dealer on . . . Street down town [sic]. He informed me that your daughter, [redacted] was detained for buying cocaine and heroine [sic]. She is, or was, a teenager, right? This happened at night in a known high crime/drug area, where alos [sic] many shootings take place. Lucky for her and the two other teens, they weren't charged. Does this make you and [redacted] bad parents? This incident is far worse than the allegations your client is making. I just thought it was ironic. You claim that this case is so serious and complicated. There is nothing more complicated and serious than having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night on or near . . . Street. Think about it. Am I right?
Attorney Doe's spouse, also an attorney, filed the complaint in this matter after Attorney Doe disclosed the "Drug Dealer" e-mail to him. At the hearing, Respondent admitted that Attorney Doe's daughter had no connection to the domestic action.
At the hearing, Respondent asserted that the e-mail was in response to daily obnoxious, condescending, and harassing e-mails, faxes, and hand-delivered letters from Attorney Doe. These communications allegedly commented on the fact that Respondent is not a parent and therefore could not advise Respondent's client appropriately. In support of this contention, Respondent submitted five e-mail exchanges between Respondent and Attorney Doe, four of which were dated after the "Drug Dealer" e-mail. In further support of Respondent's assertions, Respondent claimed to possess ten banker's boxes full of e-mails and other documents that constituted daily bullying from Attorney Doe; however, these documents were not produced. Due to a lack of evidence supporting Respondent's assertions, the Panel found Respondent's testimony to be entirely lacking in credibility. Ultimately, the Panel found Respondent was subject to discipline for sending the "Drug Dealer" e-mail to Attorney Doe.
The court rejected the attorney's First Amendment claims:
A court analyzing whether a disciplinary rule violates the First Amendment must balance "the State's interest in the regulation of a specialized profession against a lawyer's First Amendment interest in the kind of speech that was at issue." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1073, 111 S. Ct. 2720, 2744 (1991). "In those instances where a lawyer's unbridled speech amounts to misconduct which threatens a significant state interest, a state may restrict the lawyer's exercise of personal rights guaranteed by the Constitutions." In re Johnson, 729 P.2d 1175, 1178 (Kan. 1986) (citing N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 340–41 (1963)). "A layman may, perhaps, pursue his theories of free speech . . . until he runs afoul of the penalties of libel or slander, or into some infraction of our statutory law. A member of the bar can, and will, be stopped at the point where he infringes our Canon of Ethics." In re Woodward, 300 S.W.2d 385, 393–94 (Mo. 1957).
The interests protected by the civility oath are the administration of justice and integrity of the lawyer-client relationship. The State has an interest in ensuring a system of regulation that prohibits lawyers from attacking each other personally in the manner in which Respondent attacked Attorney Doe. Such conduct not only compromises the integrity of the judicial process, it also undermines a lawyer's ability to objectively represent his or her client. There is no substantial amount of protected free speech penalized by the civility oath in light of the oath's plainly legitimate sweep of supporting the administration of justice and the lawyer-client relationship. Thus, we find the civility oath is not unconstitutionally overbroad.
Justice Pleicones would impose no sanction. (Mike Frisch)
An attorney has been suspended for nine months, retroactive to an interim suspension, by the South Carolina Supreme Court. The criminal conduct was described as follows:
On November 23, 2009, the City of Conway Police Department issued two warrants for respondent's arrest on charges of indecent exposure. The arrest warrants alleged that on November 10, 2009, and November 16, 2009, respondent exposed his private parts in plain view of the public. According to statements by witnesses, respondent was inside his law office standing behind a clear glass storm door at the time of the exposures.
On November 24, 2009, respondent voluntarily surrendered to the police. He was released on bond the same day.
On January 25, 2010, respondent was served with two additional warrants for indecent exposure. The warrants alleged that during the spring and summer of 2006, respondent indecently exposed himself while standing behind the glass storm door of his home.
In 2011, a grand jury indicted respondent on two counts of exposure of private parts in a lewd and lascivious manner. On January 6, 2011, respondent entered a plea to two counts of exposing private parts pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The remaining counts of indecent exposure were dismissed by the prosecutor. Respondent was sentenced to thirty (30) days in jail or a fine of $300 on each count. Respondent paid the fines.
The attorney must seek mental health counseling. (Mike Frisch)
An Illinois Hearing Board has recommended a one-year suspension of an attorney who engaged in a wide array of serious ethics violations that included conflicts of interest and dishonesty to courts. The board summarized its findings:
The misconduct charged and proved in this case was extremely serious. On various occasions between December 2003 and June 2008, the Respondent engaged in misconduct involving several clients. He had a conflict of interest in client matters (Counts I, II, IV, V, VI, VII, IX). In fact, he took affirmative steps directly adverse to the interests of his clients by recording the memorandums of judgment without his clients' knowledge or consent. He breached his fiduciary duty to his clients (Counts I, IV, V, VI, VII, IX). He failed to explain matters so that his clients could make informed decisions (Counts I, III). Additionally, the Respondent engaged in dishonest and deceitful conduct toward clients and courts (Counts II, III, IV, V, VI, VII, VIII, IX).
The board found significant mitigation. A number of judges had testified favorably about the attorney's character.
But there were aggravating factors as well:
The Respondent did not voice nor show any remorse for the impact his actions have had on his clients or on the legal profession. The lack of remorse is an aggravating factor....
The Respondent was previously disciplined. In 1994 he received a censure for misconduct that occurred in the 1970s. The misconduct in the Respondent's current disciplinary case began in 2003, about 9 years after he had been previously disciplined. In determining whether prior discipline is a significant aggravating factor, the nature of the prior misconduct, that is whether it was similar to the current misconduct, and the length of time between the prior discipline and the current misconduct, are to be considered...
Although there was about 9 years between the Respondent's prior discipline and the time his current misconduct commenced, there are significant similarities between the Respondent's prior misconduct and his current misconduct. The Respondent's prior misconduct arose from his preparing wills and a codicil for a client in which the Respondent received bequests. By doing so, he represented a client while he had a conflict of interest, without the client's consent following full disclosure. The Respondent failed to advise his client of the conflict of interest or of the possible effects of the conflict. Additionally, the Respondent acknowledged that he did not recognize that a conflict of interest existed. The Respondent's current misconduct also involved conflicts of interest and failing to advise clients of the conflict or the nature thereof. Additionally, the Respondent has again failed to recognize he had conflicts of interest with his clients. Based upon the similarity between the nature the Respondent's prior misconduct and his current misconduct, we find that the Respondent's prior discipline is an aggravating factor for us to consider.
Another aggravating factor is the harm or reasonable risk of harm an attorney's misconduct caused.
All in all, a lot of misconduct for a one year suspension. (Mike Frisch)
Monday, April 25, 2011
An attorney who walked out of a proceeding involving a client charged with driving without a license was suspended for 60 days by the Maryland Court of Appeals.
The attorney and prosecutor both sought to continue the matter to allow the attorney's client to obtain a valid license. The judge denied the motion but agreed to pass the case. The parties sought to place the case on the stet docket so that the client could get the license. The judge denied the request.
The prosecutor refused to dismiss ther case. the attorney left the court, not to return, in violation of the judge's instructions. He also had the client depart. The judge held him in contempt of court.
According to the hearing judge, "[p]rior to the events...there was history between [the judge] and Respondent. It undoubtedly, but should not have, played a role in this incident. The Respondent appears to have wanted to prevail over [the judge] personally." The hearing judge found the conduct to be "annoying and disrespectful." The attorney advanced his own personal legal beliefs over the interests of his client:
Respondent ...told the prosecutor to play his role in allowing [him] to challenge the actions of the Court in order to allow himself the opportunity to fall upon his sword in support of a misperceived legal right. Having fallen upon his sword, Respondent nows complains that falling on his sword has painful consequences. He is now accountable in these proceedings for his conduct.
The court here found that the attorney showed no remorse in oral argument before it. His conduct caused bench warrants to be issued for the client. The court also considered the fact that the attorney was aware of the impropriety of his conduct, as he had represented a lawyer in a bar discipline case that the court cited in its sanction determination. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the denial of summary judgment to both the plaintiff and defendant in a suit for allegedly unpaid legal fees:
Plaintiff alleges that it is entitled to legal fees based on the legal services it provided to defendant regarding the sale of an apartment complex owned by Kingsbridge Associates, in which defendant was a principal, and regarding other real estate transactions involving a variety of defendant's corporate entities. In January 2005, plaintiff sent defendant a letter of engagement at his home address outlining the attorney hourly rates for the apartment complex transaction. Although this letter went unsigned, plaintiff proceeded to complete work on the transaction, and there were conversations between the parties during this time. In February 2005, plaintiff sent defendant a second letter of engagement at his home address referencing a conversation the parties had regarding defendant's concern over the amount of fees that had accumulated. The letter also apprised defendant that by signing and returning it, he would be obligated to make full payment of all amounts due. Both letters of engagement were addressed to defendant, individually, and defendant did not sign either letter.
In November 2006, when the sale of the apartment complex was complete, the escrow funds from plaintiff's account were returned to Kingsbridge Associates. Thereafter, plaintiff continued to provide additional legal services regarding various real estate transactions in an effort to ensure that defendant received substantial tax benefits from the original apartment complex transaction. The record shows that plaintiff received three payments from two of defendant's corporate entities that were involved in these additional real estate transactions. Plaintiff commenced this suit against defendant, individually, for legal fees, arguing entitlement under a theory of account stated and, in the alternative, quantum meruit. Both parties subsequently moved for, and were denied, summary judgment.
The motion court properly determined that neither party was entitled to summary judgment. Although the record demonstrates that plaintiff provided legal services, it is unclear to whom these services were provided. The record shows that plaintiff addressed and mailed all correspondence and invoices to defendant, individually, at his home address. However, the record also establishes that plaintiff received partial payment from two of defendant's entities, not from the defendant himself, and that plaintiff transferred the remaining escrow funds from the apartment complex transaction to Kingsbridge Associates, not to defendant individually...Moreover, the invoices themselves are ambiguous and do not conclusively establish for whom the work was completed.
As often happens, a lack of clarity with respect to the identity of the payor makes collection more difficult for the law firm. (Mike Frisch)
The Maine Professional Ethics Commission has issued an opinion on the propriety of a waiver of right to a jury trial in a retainer asgreement in the event of a dispute between attorney and client. The bottom line:
The Commission concludes that a client’s informed consent to a jury trial waiver in an engagement agreement must be confirmed in writing and that prior to agreeing to such a limitation, the client must be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel. In contrast to arbitration agreements, there is no public policy favoring the waiver of jury trials, and a limitation that excludes the right to a jury trial has potentially serious constitutional dimensions. Hence, a jury trial waiver is of a commensurate level of importance with business transactions between lawyers and clients or the settlement of potential or actual claims for liability.
Clients range from extremely sophisticated business clients to those with limited mental capacity. What constitutes “informed consent” for different clients within that spectrum will, as a result, vary as will the resulting written confirmation. The sophisticated client will in all likelihood already understand that they can retain independent legal counsel when entering into an engagement agreement as they can with any other contractual arrangement. It costs nothing to inform that client of the desirability of doing so in the context of a jury waiver agreement, while for those clients who would have difficulty evaluating the desirability of such an agreement before a dispute has arisen, it emphasizes to them the importance of the issue.
The answer to the question posed is therefore that while the Maine Rules of Professional Conduct do not prohibit engagement agreements from stating that “[i]n the event that a dispute between us ends up in court, both parties agree that it shall be tried exclusively in a court in Maine without a jury,” they do require that the client be fully informed as to the scope and effect of a jury waiver, that the client’s informed consent be confirmed in writing, and that the client be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel prior to entering into such an agreement.
The Maryland Court of Appeals accepted a jointly-proposed suspension of six months in a case involving tax violations. The Washington Post had reported on the attorney's federal guilty plea in July 2010:
A former IRS tax specialist admitted in federal court in Maryland that he owes more than $789,000 in overdue taxes, federal authorities said.
[The attorney], 62, of Harwood, Md, pleaded guilty Tuesday in U.S. District Court in Baltimore to three counts of failing to file a federal income tax return, according to the U.S. Attorney's Office in Maryland.
[The attorney] worked at the accounting firm KPMG LLP from 2002 until January as a tax consultant and principal, court documents state. He worked for the IRS from 1974 to 1983, including three years during which he was chief of the Tax Treaty and Technical Services Division.
According to the plea agreement, [he] did not file federal tax returns from 2001 to 2006. Each year, though, he requested and was granted a six-month extension, and made a total of $97,060 in payments along with the extension requests. Authorities said he owes more than $789,000 in back taxes.
In July 2008, after he was told he was under criminal investigation, [the attorney] submitted tax returns for the tax years 2001 to 2006, authorities said.