May 13, 2011
Plaintiff Attorney In Kilpatrick Affair Suspended Rather Than Reprimanded
Another bar discipline proceeding arising from the Kwame Kilpatrick whistleblower litigation has been brought to a conclusion by the Michigan Attorney Discipline Board.
The board affirmed findings of ethical misconduct against the attorney for the plaintiffs. He had issued subpoenas for the now-former Detroit Mayor's e-mail messages without notice to opposing counsel and arranged to have the responses sent directly to him in violation of a court order. However, the board increased the sanction imposed by a panel from a reprimand to a suspension of 30 days.
The board praised the "exceptionally sound analysis" of the panel but concluded that the knowing aspect of the violations warranted the suspension. (Mike Frisch)
South Of The Border
A New Jersey attorney has been suspended for a year and until further order after two prior disciplinary matters. The misconduct involved abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. The attorney (admitted in 1995) has retired from practice and is now in Mexico.
I was struck by this statement in the report of the Disciplinary Review Board
Here, respondent has shown nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system, an arm of the Supreme Court...
What discipline is, then, appropriate for this respondent? His abandonment of [his client's] interests and failure to cooperate with ethics authorities by allowing this matter to proceed to a default would, most likely, merit a three-month suspension, if these had been [his] only infractions...Respondent, however, failed to memorialize the basis and rate of his fee...and, more seriously, displayed a contumacious attitude toward the disciplinary system. As indicated previously, this is his third default. We, therefore, determine that a one-year suspension is justified in this instance.
If abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal. (Mike Frisch)
Client Dies, Negotiations Continue
The Illinois Administrator has filed a complaint alleging misconduct by an attorney who had represented a client who had a slip-and-fall claim. The attorney also represented the spouse on the related loss of consortium claim.
A problem arose when the client was killed in an auto accident. The complaint alleges that the attorney failed to advise the opposing party and counsel of this material fact. Rather, the attorney sought a $30,000 settlement.
It appears that, although there was an agreement to settle, the money never changed hands. (Mike Frisch)
May 12, 2011
Inside Trades Lead To Disbarment
The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of conspiracy to commit securities fraud:
During his plea allocution respondent admitted that between in or about 2007 and in or about 2008, while employed at a Manhattan law firm, he and another firm attorney, Brien Santarlas, accessed material, nonpublic information concerning client transactions and gave that information to an individual not employed by the same firm, who subsequently provided the confidential information on to a securities trader. The confidential information was then used by the trader to make stock purchases in publicly traded companies. Respondent received a total of approximately $32,500 for the information. Respondent admitted further that he knew at the time that it was illegal to trade securities on the basis of insider information. By order entered November 16, 2010 (Matter of Santarlas, 80 AD3d 20 , this Court disbarred Brien Santarlas and struck his name from the rolls based upon his plea of guilty to the same federal felonies as respondent stands convicted herein, namely, conspiracy to commit securities fraud and securities fraud.
A cheap price for one's license and reputation. (Mike Frisch)
Time To Work, No Time For Church
The Mississippi Supreme Court reinstated a disbarred attorney who had worked as a cook and at a fertilizer plant since losing his license. He also "tried his hand" at soybean farming and had owned a beauty salon. He had not engaged in any post-disbarment law related work and had made restitution.
The Bar had opposed reinstatement, arguing that the petitioner had offered" no civic, church, or charitable involvement ...other than alumni donations to his alma mater, Amherst College." The petitioner stated that his 90 hour work week "left him no time to participate in these activities."
A dissent would deny reinstatement because the petitioner had not sufficiently acknowledged the misconduct.
Question: Is working for a fertilizer plant law related work? (Mike Frisch)
Access Limited, Not Denied
The Florida Supreme Court has issued a decision instructing its Clerk to reject any future filings that challenge a disbarred attorney's disciplinary proceedings unless signed by a bar member in good standing.
The court stated that "[the attorney] is not being denied access to the courts; that access is simply being limited due to his abusiveness."
After a disbarment recommendation of a referee, the respondent "submitted over 120 filings with [the] Court, the bulk of which were repetitive and meritless." He also had failed to file a timely merits brief.
The attorney was disbarred in 2010. (Mike Frisch)
Thy Brother's Lawyer
The New Hampshire Supreme Court has ordered a six-month suspension of an attorney for ethical violations as appointed guardian of an incapacitated adult. The attorney engaged in a conflict of interest by providing legal advice to his client's brother. The advice also was incompetent, as the attorney set up a special needs trust that failed to contain a required provision to repay Medicaid to offset the costs of benefit payments.
The court rejected the contention that the attorney did not represent the brother. The court also rejected the suggestion that his conduct was permissible under Rule 1.14 (client with diminshed capacity). The rule did not apply to conduct and disclosures made after the death of the client.
The attorney had a record of prior discipline. (Mike Frisch)
A Hybrid Matter
In a hybrid case involving reciprocal and original discipline, the District of Columbia Court of Appeals has rejected the proposed suspension of a two-year suspension with fitness from its Board on Professional Responsibility. The court instead imposed a three-year suspension with fitness.
The attorney had practiced in North Carolina and relocated to the D.C. area. She sought admission to the D.C. Bar and falsely concealed disciplinary matters pending against her. The original charges involved the bar admission application. The reciprocal case related to the discipline eventually imposed as a result of the North Carolina bar complaints.
The court found that the board had focused only on the original matters and had failed to give sufficient consideration to the reciprocal violations.
Bar Counsel had sought disbarment. If you read the court's description of the undisputed facts (the attorney did not appear before the court; Bar Counsel argued against the board's executive attorney), you will understand why. (Mike Frisch)
May 11, 2011
Florida Advertising Proposals
sunEthics (the best source of information relating to legal ethics in Florida, in my view) reports:
At its meeting in Key West on May 27, 2011, the Florida Bar Board of Governors is scheduled to vote on a comprehensive overhaul of the rules governing lawyer advertising. The proposed rules, including their numbering and arrangement, represent a substantial revision of the rules that have applied to lawyer advertising and solicitation in recent years. Once approved by the Board, the proposed rules will be submitted to the Florida Supreme Court on or about July 5, 2011. Any changes to the rules must be approved by the Court.
Click here to view the full text of the proposed rules, which are posted on the Bar's website.
Justice Of The Peace Suspended
A justice of the peace (who is not an attorney) was suspended without pay for one year by the Louisiana Supreme Court.
While visiting a jail to perform notarial duties, the JOP was approached by an inmate who asked him to sign a judgment of divorce for her. He acceded to the request "[d]espite having no authority or jurisdiction to do so as a justice of the peace..." The inmate sent the document to a court as an attachment to a new divorce petition. The court clerk forwarded the document to the Office of Special Counsel.
The sanction imposed by the court involved a lengthier suspension than proposed by the Judiciary Commission:
[The JOP's] lack of familiarity with even the most basic rules pertaining to the exercise of his authority in a civil matter constitutes serious misconduct.
The JOP had prior discipline for issuing two arrest warrants and setting excessive bonds "admittedly in retaliation for the individuals' political opposition to the Mayor of Simmesport." (Mike Frisch)
Dont Drop Your Illegal Drugs In A Bank
A "veteran Arkansas criminal defense attorney" was cautioned by a panel of the Committee on Professional Conduct as a result of a felony drug possession conviction. The possession took place in the lobby of a public bank.
The attorney maintained his innocence and contended that the conduct did not violate disciplinary rules. He testified that he had "no specific recollection" of having possessed drugs in the bank lobby. He did admit an alcohol problem and recreational drug use. He enrolled in the Bar's assistance program and has been clean in their drug tests since May 2009.
The panel found that the attorney engaged in criminal conduct but not conduct prejudicial to the administration of justice. Four members voted for a sanction of caution while three voted for a reprimand.
The matter was appealed to the Arkansas Supreme Court as the Committe's Executive Director had sought disbarment. The court disagreed and remanded the case to the panel. The court's order describes the misconduct in greater detail than the committee decision. The attorney had dropped his baggie in the lobby and been identified by a surveillance camera. (Mike Frisch)
May 10, 2011
Lawyer And Client Meet On The Day Of Trial, Conviction Affirmed
The New Jersey Appellate Division affirmed a drug possession and distribution conviction despite the fact that the defendant and his substitute attorney met for the first time on the morning of the suppression hearing and trial. The court majority concluded that the defendant failed to demonstrate ineffective assistance of counsel or other prejudice.
To his credit, the substitute attorney sought time to meet with his client. The trial judge scoffed at the need for any preparation, likening a drug case to an intersection collision civil trial.
The trial started the day after the supression hearing.
Justice Fuentes dissented
I deem it self-evident that a rational and just criminal justice system cannot accept as valid a conviction predicated on a scenario in which a defendant, through no fault of his or her own, meets his or her lawyer for the first time on the day the case is scheduled for trial. I emphasize that this defendant played no role in the decision made by the Office of the Public Defender to replace his previously assigned counsel. This is not a case in which a defendant is trying to "play the system" by attempting to discharge his lawyer in a manner intended to frustrate the administration of justice...
I am...compelled to note that "trying a drug case" bears no comparison to "trying an intersection accident case." Although both kinds of cases are undisputably deserving of the utmost professional care, the latter risks only monetary compensation to a civil litigant, with the prospect of alternative recovery from a negligent lawyer, while the former imperils a person's freedom, the loss of which can never be restored or adequately compensated.
No matter how seemingly routine certain criminal trials may seen to those of us who labor in the judiciary, the prospect of losing one's freedom is never routine, nor can the awesome power of depriving a person of libery ever be yielded without care and respect.
He concludes his dissent with passion
Every once and awhile a case comes before this court that tests our resolve as judges to remain true to the fundamental principles that set this great country apart from the rest of the world - our commitment to the fundamental concept of fairness, a sense that justice was done, both in fact and in the manner it is perceived by those most affected by it. A system of criminal justice that permits a conviction to stand in a case where an indigent man, through no fault of his own, meets his attorney for the first time on the day the case is scheduled for trial, carries with it the indicia of a "show trial," a sham proceeding in which the outcome is perceived as predetermined. Because we are better than that, I respectfully dissent.
That sounds right to me. (Mike Frisch)
The Guns Of Altoona
The Pennsylvania Supreme Court has imposed a three-year suspension of an attorney convicted of a felony firearms offense. The conviction was revealed when he sought reinstatement from inactive staus.
The attorney had purchased nine handguns from two gun stores in Altoona. He listed several different addresses as true and correct. He also falsely certified that he was not an unlawful drug user. In fact, he used cocaine at the time, when he was living with his girlfriend/legal secretary, who "was deeply into crack cocaine..."
The attorney's testimony that the guns were legally purchased "for personal use to go shooting in the woods" was rejected as incredible.
He has completed a recovery program. The court imposed the suspension nunc pro tunc to May 2009. (Mike Frisch)
The Price Of Hope
A Louisiana Hearing Committee has recommended a five-year suspension of a criminal defense attorney. The committee found multiple acts of misconduct, although some charges were not sustained.
As to sanction
The Committee concludes the primary factor in the misconduct of Respondent was extremely poor personal and professional judgment, discipline and practices. As a criminal defense attorney, Respondent is in the position to take great advantage of people in very difficult personal straits (more often than not who are there because of their own poor judgment, discipline and practices), and who are very susceptible for the "hope" that he offers at a very great price. In the opinion of the Committee the primary factor in the pattern of continuing misconduct were character flaws that were continually evidenced in the actions of the Respondent. This finding is buttressed by repeated acts of conversion of funds, the failure to acknowledge responsibility for past actions, and the lengthy failure to make concerted efforts toward repayment of the losses, which cause, and continue to cause, substantial harm to former clients. While to Committee is tempted but not inclined to believe gave a verbal "guarantee" of success, the committee is certainly not convinced his clients were made to understand the long odds against success under the most difficult circumstances...
The committee rejected charges relating to the attorney's riding in a car where alcohol and drugs were being used. (Mike Frisch)
May 9, 2011
iPad2 for Grandpa?
Posted by Jeff Lipshaw
This has nothing to do with the legal profession, but it's my blog, so deal with it.
After signing up for Skype so that I could work with my son at length over the last week, it occurred to me that my completely computer-illiterate 81 year old father, who lives distant from all of his children and grandchildren, should have an iPad2 so that he can video chat and get pictures. Now we are talking never-turned-on-a-computer, wouldn't-know-an-icon-from-a-mouse level unfamiliarity.
I'm interested in comments on the following. When I visit him next month, I will take him to the Apple Store near his house. I will get a sales person to show him an iPad. What are the chances that he will take to it successfully enough that we buy one and he is capable of using it on his own?
Overselling Draws Reprimand
The South Carolina Supreme Court has issued a public reprimand of an attorney for misleading advertising.
In his advertising materials, Respondent included false and misleading statements regarding: his experience and his associates' experience; the firm's areas of practice and past case results; the assignment of cases among the attorneys in the firm; the firm's reputation; the firm's office locations; and the foreign language ability of the firm's employees.
In terms of his experience, Respondent included a statement on his website and in his firm brochure that he had "worked in the legal environment for over twenty years." Although Respondent had worked as a clerk for a law firm while in college and law school, he had only actually practiced law for about seven years when these materials were disseminated.
Respondent also overstated the experience of his associates on his website. At the time the website was published, the firm's two associates had been admitted for less than one year, yet the website referred to the firm's "numerous trained and experienced attorneys." The website also included phrases describing the firm's attorneys as "thoroughly familiar with the local court system", "highly skilled", possessing "wide-ranging knowledge", and having a "deep personal knowledge of the courts, judges, and other courthouse personnel."
Regarding the firm's areas of practice and the types of cases handled by the attorneys, Respondent's website included a statement that "our attorneys handle all types of legal matters in state and federal court in South Carolina" when, in fact, that was not the case. The website also stated that the firm represents clients "in every level of the South Carolina state court system", which was not true.
Respondent's website also stated that "[e]ach attorney with Coastal Law Firm focuses his or her practice exclusively on one area of the law [thus] each attorney is deeply familiar with the law and procedural issues related to their clients' cases." However, Respondent listed at least twenty-seven distinct practice areas on his website even though only three attorneys (including himself) were employed with the firm.
Respondent's website further stated that the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts. No lawyer in the firm had actually handled any matters in those areas; however, they were willing to accept such cases.
Additionally, Respondent's website contained a page entitled "Consumer Protection and Products Liability Lawyer." The page claimed that the firm has "a history of winning [products liability] cases" and that it employs "defective products liability lawyers" who "understand how to deal with both corporations and insurance companies and have a history of winning cases for our clients." On another page on the website, Respondent stated that "At Coastal Law, our . . . product recall lawyers understand what is required in filing a medical injuries claim for manufacturer negligence in producing a hazardous drug or product leading to a dangerous product recall. We can aggressively pursue your legal rights against negligent corporations that may have introduced a product that damaged your health." Neither Respondent nor any lawyer in his law firm had ever handled a products liability matter.
In terms of the firm's office locations, some of Respondent's telephone book advertisements stated that the firm had offices in Georgia and Florida. At the time, Respondent had a referral arrangement with firms located in those states and had plans to merge his firm with another South Carolina lawyer, who had offices in Georgia and Florida. Respondent's firm, however, never actually operated offices in those states.
With respect to the foreign language ability of the firm's employees, Respondent's advertising materials included the phrase "We Speak Spanish" written in Spanish. None of the lawyers in the firm spoke Spanish. Only part of the time when these advertisements were published did the firm employ a staff member who spoke Spanish. The inclusion of "We Speak Spanish" in Respondent's advertising, particularly at times when no one in the office spoke Spanish, was misleading as it implied that the firm employed Spanish- speaking attorneys.
As to the firm's reputation, Respondent's website included a number of statements that could not be factually substantiated such as the firm "developed a reputation over the years for outstanding results" and the firm is "recognized as an established, experienced, and reputable local Myrtle Beach law firm." Although Respondent admitted at the hearing that the inclusion of this language was a "mistake" as his law firm had not been identified as a leading law firm or received special recognition, he claimed it was never his "intention to deceive."
In his advertising materials, Respondent improperly compared his law firm's services to other law firms in ways that could not be factually substantiated with statements such as "best attorney available", "most effective legal services", and "best services possible." Respondent acknowledged that it was inappropriate to make these comparisons to other lawyers.
Although Respondent filed his telephone book advertisements with the Commission on Lawyer Conduct in compliance with Rule 7.2(b), he admitted that he did not do so with his website or firm brochure.
Respondent admitted that some of his telephone book advertisements listed only the law firm name and not the name of a lawyer that was responsible for the content of the advertisements.
Respondent admitted in his Answer that his firm brochure characterized the quality of his firm's legal services for criminal defense clients as "tough criminal defense representation." He also admitted that his website characterized his firm's attorneys as: "highly skilled at obtaining bonds for their clients"; "dedicated attorneys who provide excellent legal advice"; "maintaining a high degree of professionalism" in real estate matters; and "intelligent", "competent", and "full service."
Respondent admitted that his telephone book advertising and website included statements regarding contingent fee arrangements, including the following statements: "no fee until you receive money"; "no fees up front to handle your personal injury or wrongful death case"; and "your cost is nothing unless we win." Respondent, however, failed to disclose whether the client would be liable for any expenses in addition to the fee or whether the percentage of the contingency fee would be computed before deducting the expenses.
Respondent's website referred to the firm's "expertise" in personal injury matters and the firm's "expert nursing home litigation advisors." The website and firm brochures also stated that the firm "specializes in several areas of law." Respondent, however, admitted that no one in his firm was a certified specialist in any area of law.
The attorney admitted the allegations and expressed remorse. (Mike Frisch)
May 8, 2011
Ineffective Assistance When Client Wants To Withdraw Plea
The New Jersey Appellate Division has held that a defense attorney provided ineffective assistance of counsel by undercutting the defendant's efforts to withdraw a previously offered guilty plea:
...in the present case the trial judge placed great reliance on his searching inquiry at the time that the plea was entered, and upon defendant's unequivocal responses. But here, the judge's determination was also undoubtedly colored by defense counsel's statements completely undercutting defendant's claims of innocence and was explicitly colored by defendant's
statement in his letter to counsel regarding his potential willingness to accept a lower plea.
The case was remanded to consider the motion to withdraw the guilty plea with new defense counsel and a new judge. (Mike Frisch)
Focus On Rehabilitation
An Illinois attorney disbarred in 2005 for a criminal conviction involving conspiracy to distribute cocaine sought reinstatement in 2009. After a hearing, the Administrator concluded that reinstatement appropriate and a favorable petition was submitted to the Illinois Supreme Court. The court rejected the petition in light of apparent inconsistencies in the petitioner's versions of his offense.
On remand, the Review Board concluded that the facts of the offense were "confusing" but that there are no material inconsistencies in the petitioner's explanations. The board concludes that the petitioner has been candid and forthright and has now recommended reinstatement.
The offense involved petitioner's addiction to cocaine and his involvement with a client who he had represented in a custody matter:
At his reinstatement hearing [petitioner] described his drug habit and conviction. He began using cocaine to help keep himself awake and manage pain resulting from a back injury. He initially obtained cocaine from a bartender but then began purchasing it from a former client...He purchased cocaine regularly from [the client] for about a year and half.
[Petitioner] and his former wife used approximately one ounce of cocaine per week. All of [his] disposable income went toward his cocaine habit. Occasionally [he] shared cocaine with friends. [He] stated that occasionally he accepted money from his friends who offered to reimburse him for what he spent on the cocaine.
At some point [the client] asked [petitioner] to keep a safe in [his] office. [Petitioner] testified that he did not have access to the safe but "had every reason to believe there was [sic] drugs or cash in it." He stated that he kept the safe in his office for less than a week, contrary to [the client's] statement that the safe "was there for quite a while."
Eventually, [the client] began cooperating with federal authorities and wore a wire while dealing with [petitioner]. [The client] asked [petitioner] to introduce him to a former supplier of [petitioner's], and [he] agreed to do so. [Petitioner] called the former supplier, who indicated that he did not want to become involved because the deal with [the client] "sounded weird." At the time, [petitioner] owed [the client] $2,000 for a previous cocaine purchase. [Petitioner] had in his possession an ounce of cocaine, which he offered to give to [the client] in exchange for erasing $1,000 of his debt.
[Petitioner] became suspicious of [the client] after he received a call from the mother of [the client's] fiancée, who warned [petitioner] to watch out for [the client]. [Petitioner] then contacted someone he knew at the State's Attorney's office and asked whether he was under investigation. [Petitioner's] contact stated that she was not aware of an investigation but later refused to take his calls. Federal agents then approached [petitioner] and asked to talk with him about a drug scheme they were investigating. [Petitioner] talked to them for "four days in a row" without the assistance of counsel. At sentencing, he received a two-point reduction in his sentence for cooperating with the authorities.
The board concludes
There is no dispute that [petitioner] recognizes the serious of his misconduct, accepts responsibility for it, and has taken the necessary steps to improve himself. The testimony of the witnesses clearly demonstrate that he has stabilized his life, and more importantly is dealing candidly with his addiction issues.