May 6, 2011
Monica Goodling Reprimanded
This item was posted yesterday on the web page of the Virginia State Bar:
On March 25, 2011, a Virginia State Bar Fourth District-Section II Subcommittee issued a public reprimand to Monica Marie Goodling for violating a professional rule that governs commission of a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice. This was an agreed disposition of misconduct charges.
The order is not yet linked.
Update: The ABA Journal now has the story with the reprimand. (Mike Frisch)
The Pennsylvania Supreme Court imposed a suspension of a year and a day, stayed in favor of three-years probation in a matter involving misconduct in a series of criminal and civil cases.
The key mitigating factor was the turmoil caused by the breakup of the attorney's marriage and law partnership. The attorney's spouse was also his partner. (Mike Frisch)
May 5, 2011
Two Yesses, One No, One Too Broad
A recent opinion from the Florida Judicial Ethics Advisory Committee:
(1) Whether a Judge may assist in planning fundraising activities for a childcare program which provides supervised childcare to parents and guardians who are attending court-related matters.
(2) Whether a Judge may speak and be featured on a program and permit the Judge’s title to be used for a fundraiser for a program which provides supervised childcare to parents and guardians who are attending court-related matters.
(3) Whether a Judge may make a recommendation to public and private fund-granting organizations on behalf of a program that provides supervised childcare to parents and guardians who are attending court-related matters?
(4) To what extent may a judge be involved in fundraising for a program which provides supervised childcare to parents and guardians who are attending court related matters if the program is under the umbrella of an organization that has an advocacy component?
ANSWER: This inquiry is too broad to be answered.
The care facility is run by the YWCA. (Mike Frisch)
The Pennsylvania Supreme Court has imposed a three-month stayed suspension with probation of one year in a matter in which the attorney had missed a deadline in a criminal appeal. As a result, the appeal was dismissed. The attorney had not been candid in the ensuing bar proceedings.
The court rejected the Disciplinary Board's proposed stayed suspension of six months and two-years probation.
Justice Baer dissented and would not "second guess" the board. He noted that the attorney had been admonished twice (once for false statements to the bar). In his view, the attorney's "longitudinal history of similar disciplinary infractions with apparently little concern for his continuing transgressions" justified such deference. (Mike Frisch)
May 4, 2011
Crime Results In Imprisonment, Disbarment
The Oklahoma Supreme Court has disbarred an attorney for conviction of child sexual exploitation.
WUSA9.com had reported on the sentencing in the criminal case:
A former Army Major from our area was sentenced to 27 years in federal prison for a horrific crime: raping a baby.
Federal authorities found 30,000 images and 100 videos of child pornography on the computer of 35 year-old Daniel Woolverton.
Daniel Woolverton was a 1997 West Point graduate, with a career as an Army trial lawyer that appeared to be on the fast track. Now, hes behind bars after raping a boy as young as three months old, an act he videotaped.
The court accepted the attorney's resignation while facing charges. (Mike Frisch)
Actual v. Apparent Authority
Clients who sued their former attorney for settling a claim without actual authority are not precluded from pursuing the claim by collateral estoppel, according to a decision of the West Virginia Supreme Court. The court previously had enforced the settlement over the client's objection because the attorney was cloaked with apparent authority to settle
This Court did not expressly determine that [the attorney] had the actual authority to settle the case on behalf of his clients. Rather, we simply ruled that [the attorney's] clients had failed to overcome the apparent authority that is implicit in any attorney-client relationship. Thus, the first criterion of collateral estoppel, that "the issue previously decided is identical to the one in the current proceeding" has not been satisfied.
Client May Be Liable To Court Reporter
The New York Appellate Division for the Second Judicial Department held that a client may be responsible for paying a court reporter after the law firm that contracted for the services (Dreier LLP) declared bankruptcy.
The court sets out the issue:
On this appeal, we are asked to determine whether a court reporting agency may recover payment for services rendered directly from the client instead of being limited to pursuing the attorney who, as the client's agent, engaged the agency. For the reasons set forth below, we hold that although a court reporting agency may obtain payment for services rendered directly from the attorney who engaged it, a court reporting agency is not precluded from recovering those fees directly from the client.
Here, the plaintiff contended that it was not a party to the defendants' engagement letter with Dreier, LLP, and should not be bound thereby. The plaintiff maintained that the defendants are responsible for paying its fees related to services obtained by Dreier, LLP, on their behalf, inasmuch as General Business Law § 399-cc was never intended to allow a client, such as the defendants, to evade responsibility for paying the reporter and that the ultimate responsibility for the reporting fees lies with the client.
The defendants, in response, relied upon the Dreier, LLP, engagement letter and the payments they made thereunder. Thus, they contended that any payments owed to the plaintiff were or should have been paid from the monthly payments received by Dreier, LLP, from the defendants.
Given that the plaintiff sufficiently stated a cause of action to recover damages for breach of contract by alleging all of the essential elements; to wit, the existence of a contract, the plaintiff's performance pursuant to that contract, the defendants' breach of their obligations pursuant to the contract, and damages resulting from that breach (see JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 AD3d 802; Furia v Furia, 116 AD2d 694), and General Business Law § 399-cc does not prohibit the plaintiff from seeking its fee directly from the defendants as the clients, it was improper for the Supreme Court to have, in effect, granted that branch of the defendants' motion which was to dismiss the complaint...
May 3, 2011
Files Shared, License Lost
According to [the attorney's] plea agreement, on June 25, 2010, an undercover FBI agent in Newark, New Jersey, launched a publicly available file-sharing program, and saw that [he] was logged in and was sharing approximately 1,476 files. The undercover agent downloaded 22 images and six videos from [his] shared files. All of the downloaded images contained visual depictions of actual minors engaging in sexually explicit conduct. Further investigation revealed that in May 2010, [he] had paid $29.95 for access to the file-sharing program.
For The Sake Of The Public, He Must Be Disbarred
The Maryland Court of Appeals disbarred an attorney who had failed to honor assignments to pay a medical provider out of settlement proceeds in 16 matters. He misappropriated the proceeds held to pay the providers and got the ultimate sanction
[The attorney's] conduct in the present case, misappropriating tens of thousands of dollars in client funds and settling a case without that client's knowledge or consent, warrants the gravest sanction, disbarment, for protection of the public.
The attorney did not file exceptions to the findings of the trial court. (Mike Frisch)
Ghostwriting For Relative Results In Censure
An Alabama attorney whose Tennessee license was inactive was publicly censured by the Tennessee Board of Professional Responsibility.
The web page summary of the case reports that the attorney assiste a relative in a will contest action, volunteering to draft pleadings for a legal services lawyer if that lawyer would represent the relative. He later prepared pleadings that the relative filed, purportedly as a pro se litigant. The attorney sent two ex parte letters to the judge, "made reckless and threatening statements questioning the integrity of the presiding judge, and refused to adequately respond to Disciplinary Counsel during the disciplinary investigation. " (Mike Frisch)
May 2, 2011
Pre-Admission Advice To Skincare Salon Draws Sanction
More from the most recent online edition of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on one year of probation and was ordered to take the MPRE within one year. The order took effect Jan. 29, 2011.
[The attorney] went to a skincare salon and after completing a client profile and consent form, she told the staff that the form did not adequately protect the salon from lawsuits. She later met with the company CEO and offered to improve the legal language of the form in exchange for skin care products and services.
[She] was not licensed at the time, although she was truthful when she told the CEO she had a law degree and had passed the bar exam, but was awaiting a background check. She stipulated that care Salon she held herself out as an attorney when she wasn’t entitled to practice.
[She] did not notify the Committee of Bar Examiners that she acted as an attorney before she was licensed and stipulated that she knowingly failed to disclose a material fact for admission to the bar.
In mitigation, the client was not harmed because the spa did not use [her] suggested language in its form.
Wait until you are sworn in to give legal advice. (Mike Frisch)
Welcome To the Hotel California - No Cats Allowed
From the May 2011 California Bar Journal:
[An attorney] was disbarred Sept. 2, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.
[The attorney] committed two acts of misconduct while defending a hotel that was sued for barring a tenant’s companion animal – a 16-year-old cat – from living with him. The tenant accused the hotel of housing discrimination, intentional and negligent infliction of emotional distress and unfair business practices.
[The attorney] did not respond to discovery requests or various motions, was sanctioned twice and a default judgment was entered against the hotel for $151,200 plus attorney’s fees and costs of $26,987. Although he did not notify his client about the sanctions or the outcome of the case, he asked another lawyer for help in setting aside the default judgment. The client only learned about the court order when the sheriff arrived with a notice of levy against the hotel. The hotel was forced into bankruptcy.
Judge Lucy Armendariz found that [the attorney] failed to perform legal services competently or keep his client informed of significant developments in his case. Although he repaid $11,000, Armendariz noted that [he] has been disciplined three times previously. “The present matter reflects a continuing inability to fully appreciate the duties he owes to his clients,” the judge wrote. “Moreover, the lack of compelling mitigating circumstances involved in the present matter and ([his]) stated indifference . . . give the court little justification to recommend a level of discipline short of disbarment.”
The Virginia State Bar Disciplinary Board accepted an attorney's consent to license revocation in a matter in which the attorney "began working in [his uncle's] office to assist him in completing the existing cases of the firm." The uncle was unable to continue the full-time practice of law and wished to retire.
The uncle made the attorney a signatory on his firm trust and operating accounts, but not his personal bank account. Without authorization, the attorney transferred funds via internet from the uncle's personal to his operating account. He used the funds "to pay living expenses and other personal needs."
The conduct was discovered as a result of overdrafts on the personal account. (Mike Frisch)
Hindsight Bias Does Not Justify Finding An Ethics Violation
The Michigan Attorney Discipline Board has affirmed a hearing panel's dismissal of ethics charges against the outside attorney who had represented the City of Detroit in the high-profile Kwame Kilpatrick whistleblower litigation. The hearing panel found that the charges had not been proven by a preponderance of the evidence.
The charges alleged that the attorney failed to communicate with the City Council over the terms of the settlement agreement. The board agreed with the panel that, as outside counsel, the accused attorney had reasonably relied on inside counsel to communicate with the City Council.
Given the notoriety surrounding the...litigation and related discipline cases against other attorneys involved, some might suspect or presume that respondent, by virtue of sheer proximity to other alleged or proven misconduct, must have violated a rule of professional conduct or have known all that has been revealed after detailed investigation. In fact, such notoriety, speculation, and tendency toward highsight counsels strongly in favor of strict adherence to our limited responsibilities on review.
The board thus found no error in the panel's findings in support of dismissal of the charges.
As the bar cases against five attorneys involved in this litigation is winding down, charges remain pending before a hearing panel against an attorney in the City Law Department who had handled the process of obtaining the City Council's approval of the deal.
You can check the status of the various Kilpatrick-related cases here. (Mike Frisch)
How Do You Get A Half A Million Dollars?
You ask fot it.
The Pennsylvania Supreme Court accepted a resignation and disbarred the attorney by consent in the following circumstances.
While employed by a tax consulting firm, the attorney "discovered that the Montgomery County [Maryland] Treasury Office website could be easily searched for companies due tax refunds... Respondent began stealing the unauthorized real property tax refund checks simply by contacting the Montgomery County Treasury Office and requesting that a refund check be mailed out." He did so for a period of years to the tune of over $500,000.
Why was Montgomery County so lax?
According to the petition for discipline, there was a backlog of 16,000 overpayments in the county office. The theft scheme stopped in 2005 when the county "changed its policies and required that the actual taxpayer, due a refund, be in direct contact with the County." Thereafter, two legitimate payees sought refunds and were told that the checks already had been issued. The trail quickly led to the attorney, who fully admitted his crimes and cooperated fully with the State's Attorney's Office.
He was sentenced to prison for five years with all but 18 months suspended. (Mike Frisch)
May 1, 2011
The Irony of Requiring Meritorious Performance to Maintain a Law School Merit Scholarship
Posted by Jeff Lipshaw
Sarcasm and curmudgeon alert. An article on the front page of the Sunday Business section in today's New York Times brought to light the hidden truth that many law school merit scholarships actually require the recipient to (gasp!) maintain a record of academic merit in law school to maintain the scholarship after the first year.
I'm still not quite sure I understood what point the article was trying to make. I don't think there's anything unusual about schools using merit-based scholarships to raise the profile of the student body; when I was in high school in the late 60s and early 70s, Michigan State offered all National Merit Finalists a free ride. I was on the board of directors of a prep school and our admissions office did it for promising 8th graders. Nor do I see how it's unfair to make the retention of a scholarship, based on the idea of one's academic merit, dependent on maintaining meritorious status. At least that way the school is really buying merit, and not just an LSAT score! Moreover, assuming the scholarship are full rides, the student isn't out of pocket; merely out of the investment (such as it was) of the year's time.
Somewhere deep in the article you get to what I suppose the point is, full disclosure.
Of course, there is nothing inherently wrong with incentives that ask students to earn strong grades in exchange for a break on tuition. But given that students are often shocked when their scholarships disappear, there are some basic questions about good faith and full disclosure here — an irony, given that those topics are covered in law school.
It's hard to argue with disclosure, particularly in this context, where the scholarship has conditions, and you might not attend the school on account of them. I suppose this triggered my cynic-o-meter: one student's revelation "that she was surrounded by dozens of students just as motivated to get a 3.0 as she was." Really? Should that have been disclosed? "Caution: law school is competitive."
But I've always been something of a "disclosure as remedy" skeptic, at least when the disclosure goes to one individual undoubtedly burdened by all the usual cognitive biases (i.e., I'm not an efficient capital market hypothesis zealot, but I feel better about disclosure as remedy when there are thousands of people reading and pricing the disclosures for me). It's easy enough to create a scholarship contract with a bold-faced all capitals paragraph that says: THE CONDITION OF THIS SCHOLARSHIP IS THE MAINTENANCE OF CLASS STANDING IN THE TOP THIRD OF OUR CLASS GIVEN THE MANDATORY GRADING CURVES TO WHICH ALL STUDENTS ARE SUBJECT.
But how far does disclosure have to go? To take the example in the article, a student turns down paying full tuition to go, say, to Hastings, a top 100 school, in favor of getting a tuition-free education at Golden Gate, no doubt a fine institution but not carrying the same reputational gravitas as Hastings. Seems to me you pay your money (or, as here, not pay) and take your chances. Isn't the more serious issue taking a full paying student at the lower end of the admissions scale, and having the benefit of $30-40K in tuition with the very real possibility that the student (a) won't make it until the second year, (b) won't graduate, or (c) won't find a job? Even there, do we really need to disclose to students that schools have curves, students at the bottom get bad grades, and despite the student's having paid the tuition, there's no guarantee the student will earn the degree? I have this image of one's acceptance letter carrying warning decals that make it look like my lawn mower or, at the very least, like my Starbucks cup. "CAUTION: THE BEVERAGE YOU ARE ABOUT TO DRINK IS HOT, THE SCHOOL YOU ARE ABOUT TO ATTEND HAS COMPETITIVE STUDENTS, THE LIFE YOU ARE ABOUT TO LEAD IS UNCERTAIN, AND THERE'S NO WAY OUT."
A Sad Tale
The most heartbreaking disbarment I've seen in awhile was ordered last Friday by the Maryland Court of Appeals. The respondent was an experienced estate and trusts attorney who had no record of any prior discipline. He was admitted in Maryland in 1997.
The attorney moved his practice between Maryland and Virginia. He had some particularly difficult personal circumstances involving his divorce and the care of triplets who had been born with significant health problems. He was squeezed financially by his situation, and was a devoted father.
The misconduct arose during the course of routine estate planning services provided to a Virginia couple.
The wife (hereinafter "the daughter") expressed concern about her mother's health and estate plan. The mother had in place a 1995 will that left her estate (principally her home) to her four children in equal parts. The attorney drafted a series of documents to update the estate plan and reduce estate costs. The documents were "reasonable and appropriate" given the mother's situation. There were contacts between the mother and the attorney, but the mother did not follow through and the documents were never signed.
The fatal day was August 26, 2008.
The mother lay dying. The attorney was summoned to the hospital with documents in hand. The mother was "unconscious or semi-conscious." She was in no condition to sign the documents and never did so before her death.
The distraught children all wished that the documents (which continued to treat them all as equals) had been signed in order to improve their ability to close the estate with a minimum of cost. They "pleaded with" the attorney to assist in the forgery of the mother's name. He explained the fraud but eventually gave in to their entreaties.
He took the forgeries to his office and had them falsely notarized by his employees. He returned the documents to the daughter. She filed the forgeries with the probate court.
The scheme came undone when one of the four kids complained about his situation. The daughter retained counsel to oppose her brother. By chance, her retained counsel serves on the Attorney Grievance Commission. That attorney's complaint led to disciplinary charges.
The attorney fully admitted his conduct and cooperated throughout the ensuing proceedings. The trial court found he had "cooperated with Bar Counsel to an extensive degree to his own detriment and in furtherance of the purposes of the Maryland Attorney Greivance Commission."
The trial court did not find that there was a pattern of misconduct. The attorney had been motivated solely by a desire to assist the children in carrying out what they all agreed was their mother's intent, even though she had never signed. The attorney got only trouble, not benefit, from the misconduct
The court majority sustained Bar Counsel's exception to the failure to find a pattern and ordered disbarment in light of its key dishonesty precedent, the Vanderlinde case:
[The attorney] asserts that he only was attempting to facilitate his client's wishes and respond to a truly sorrowful situation and that he did not benefit from his acts. We have already addressed these contentions [in another earlier case], when we said, "[v]iolations of Rule 8.4 are not justified by reference to the ends when illegal methods are utilized, nor by whether the attorney profited from the illicit behavior"...There can be no doubt that lawyers deal with situations and circumstances that are tragic, as well as emotionally intense and vexing for clients, as happiness only may be found with a client that adopts a child.
Attorneys, however, are not hired guns for individuals who seek to subvert the administration of justice. Rather, the great strength of our profession lies in the intregrity with which we act and the honor we bring to our work. Attorneys are not permitted to discard their ethical obligations when it becomes difficult or stessful to maintain them.
Justice Murphy, joined by Chief Justice Bell, dissented as to the sanction. Even though the misconduct took place over several days, they would find that the misconduct was an isolated incident with the sole purpose of carrying out the mother's intent. They would impose an indefinite suspension of no less than two years. (Mike Frisch)