May 27, 2011
Whirlpool Exposure Leads To Bar Charges
The Illinois Administrator has filed a complaint alleging ethical violations as a result of conduct that led to a disorderly conduct conviction:
On October 23, 2009, while seven teenaged girls were in the Harbor Point whirlpool, Respondent was sitting on a chair in the pool deck area wearing only a robe and exposing his genitals to the girls. One of the girls’ mothers...a resident of Harbor Point, reported Respondent to the condominium’s personnel.
On October 24, 2009, while [KS] a resident of Harbor Point, and her six and 12-year-old nieces and the neice’s [sic] 12-year-old friend were in the Harbor Point whirlpool, Respondent was sitting on a chair in the pool deck area wearing only a robe and exposing his genitals to her and the girls. [KS] reported Respondent to the Harbor Point condominium’s personnel.
On October 24, 2009, [the first resident] filed a report with the Chicago Police Department regarding the incident described...above.
Struggling To Consensus
A divided Wisconsin Supreme Court (so what else is new?) was able to garner four votes holding that an attorney had made a false statement in a 2006 mass mailing. The court was evenly split on other allegations and thus did not sustain findings of misconduct with respect to another mass mailing. All agreed to reject charges that his use of a "35th anniversary sticker" in advertising despite having been in practice setting for 30 years was materially false.
The misconduct was born in rancor toward another lawyer with whom the attorney had been in practice. The two have feuded for years. They compete for personal injury plaintiff work. The competition was interrupted by the other lawyer's fraud conviction and suspension.
Charges based on this post-conviction mailing did not command a majority:
Count 1 of the OLR's complaint relates to a postcard that Attorney...began to include in those direct mail packages beginning in December 2003. The postcard was entitled "Beware: You will Probably Get a Letter from a Law Firm Whose Senior Partner Went to Prison on November 28, 2003." After a greeting line of "Dear Friend," the postcard contained the following text:
Listen to one example of what lawyer advertising has come to: [named] law firm Senior Partner...went to prison for defrauding approximately 200 of his firm's personal injury clients. He and his firm still send direct mail advertising to accident victims telling them to hire a lawyer they can really trust. Lawyers can mail letters and advertise on television without ever having tried a personal injury case.
By separate mailing we have sent you a letter containing an article entitled How to Find a Good Personal Injury Lawyer and information about our firm. Please take the time to read this article and ask questions before you hire a lawyer.
In a 2006 mailing, the attorney claimed the other lawyer was practicing when he was not. This assertion was deemed false by a majority of justices:
A lawyer with an office at 633 West Wisconsin Avenue in Milwaukee, who pleaded guilty to a felony after defrauding 200 personal injury clients and was sentenced to Federal prison is still practicing law pending his appeal. His law firm is still sending letters soliciting personal injury cases to people who have been involved in motor vehicle accidents. The lawyer's partner sends a 28 page brochure telling injury victims they should "Find a lawyer and law firm they can really trust." What the brochure does not tell you is that the senior partner was convicted of conduct that betrayed the trust and confidence placed in him by his clients.
The other attorney was reinstated in 2007.
The court was unanimous in rejecting a violation in the "anniversary sticker" matter on materiality grounds:
The issue is not whether a potential client or other reader of the anniversary sticker would find the difference between a 35th anniversary sticker and no anniversary sticker material. Attorney...was entitled at least to communicate in 2004 that the law firm he then owned was 30 years old. The true question presented is therefore whether a potential client or other reader would have found it to be a material difference if the sticker had read "30th Anniversary" instead of "35th Anniversary." We agree with Attorney...that no reasonable person would be influenced by a five-year difference between a personal injury law firm that was either 30 years old or 35 years old. In other words, we do not believe that any reasonable person would have retained Attorney...'s law firm on the belief that it was 35 years old but would not have retained the firm if he/she knew that it was really only 30 years old. Consequently, because we determine that the anniversary sticker, even if false or misleading, was not material, we conclude that Attorney...'s use of the sticker was not a violation of former [ethics rules].
The court imposed a public reprimand and reduced costs (which also was able to get four votes).
All In The Family
The Iowa Supreme Court has imposed a suspension of no less than 18 months in a matter involving misconduct in connection with the representation of his wife as the guardian and conservator of a longtime friend. The court rejected the recommendation of its Grievance Commission for a public reprimand.
The attorney was admitted in 1964. He has a good professional reputation and no prior discipline.
He had served as a county attorney and came to know the county auditor, who became a family friend. The attorney's wife became the friend's guardian. The misconduct involved "self-dealing, gifting, transferring property, and accounting for assets." The attorney engaged in what the court called serious misconduct that involved conflicts of interest and deceit in failing to disclose the ward's assets in court filings.
The attorney also represented the buyer and seller in connection with the sale of estate property. He claimed to have been unaware of this, contending that his son (and law partner) had handled the transaction without his knowledge. (Mike Frisch)
May 26, 2011
Non-Refundable Fees Get Attorney Suspended
An attorney admitted to practice in 1964 has been suspended for six-months by the New York Appellate Division for the First Judicial Department for charging non-refundable retainers and failing to include information regarding arbitration in her retainer agreements. The attorney had also conditioned a civil settlement on the withdrawal of a bar complaint.
The court noted a prior admonition for charging non-refundable retainers and rejected the attorney's plea for a public censure:
Respondent argues in mitigation and in support of her request for public censure that she was 69-years-old at the time of the hearing, that she had practiced immigration law since 1968 opening her own practice in 1970, that she had served talented artists and musicians, that she did not intend to violate disciplinary rules and apologized for having done so, and that she promised never to do anything of that nature again. She also claimed that her poorly controlled diabetes made her forgetful and she would take precautions and put into effect systems to compensate for the effect of the ailment. She relied on the testimony of her internal medicine-cardiologist physician concerning the impact of the disease. She expressed remorse for ignoring the prior Admonition concerning the "non-refundable" provision in her retainer agreement, and averred that she had always refunded unearned fees. Respondent now states that she has begun to implement procedures, including a monitoring program, that will insure that she does not take any such missteps again. In addition, respondent points to the fact that she represented many clients pro bono and worked extensively in Europe and the Middle East, representing individuals who were threatened for political reasons.
While there are no cases directly on point, this case comes closest to Matter of Rodkin, 21 AD3d 111 (2005), also involving an immigration attorney. In that case, the lawyer improperly obtained clients from travel agencies, thus aiding the unauthorized practice of law. He had also been previously admonished for the same type of misconduct for which he was charged.
A hearing panel had proposed a nine-month suspension. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the dismissal of tort claims against an Epstein Becker attorney and the firm in a suit claiming complicity in a co-defendant's theft of "personal and revealing photographs of plaintiff taken by her husband" to be returned only on payment of $2.5 million to settle claims of sexual harassment and retaliation.
The court concluded:
The allegations against the law firm and the individual attorney defendant also were correctly dismissed. The complaint contains, at most, wholly conclusory allegations that defendant Wigdor, the attorney for the other individual defendants, knew to be true what plaintiff's husband alleges to be true, that [co-defendant]] Pecile had stolen one of the two compact discs containing photographs of plaintiff after improperly viewing the contents of the discs. Regardless of how implausible Pecile's claim that she retained one of the discs inadvertently may be, at most the complaint implicitly alleges that Wigdor knew that Pecile's claim was false and that she in fact had stolen them, as plaintiff's husband claims. But any such implicit allegation is wholly conclusory.
Moreover, there is no allegation that Wigdor played the slightest role in any of the actions Pecile took to obtain possession of the discs and photographs in the first place. Of course, Wigdor knew that Pecile had no right to possess the photographs and, as is undisputed, he refused the demand of plaintiff's husband that they be returned immediately. Rather, Wigdor stated that he could not return the photographs because they were evidence of the alleged unlawful conduct of plaintiff's husband, as they indeed are if, as Pecile maintains, he committed the alleged conduct. About two months after the demand was refused, Wigdor turned the photographs over to a third party; he contends that neither he nor his firm ever had possession of the compact disc.
We need not determine whether Wigdor wrongly refused the unconditional demand for the immediate return of the photographs. Even if he should have acceded to the demand, the allegations in the complaint provide no basis for depriving him of immunity from liability "under the shield afforded attorneys in advising their clients, even when such advice is erroneous, in the absence of fraud, collusion, malice or bad faith" (citation omitted)...To the extent the complaint alleges fraud, collusion, malice or bad faith on the part of Wigdor, the allegations are wholly conclusory. If the shield does not deflect these allegations, it is so flimsy as to be of little use.
The court declined to impose costs. (Mike Frisch)
May 25, 2011
Sounding Lawyerly Not Unauthorized Practice
A Colorado Hearing Board dismissed a complaint alleging unauthorized practice against a suspended attorney.
A summary of the findings:
Respondent was suspended from the practice of law in 2004 and has not been reinstated to the bar. In 2008, Respondent began to work as a paralegal. In that capacity, he drafted letters to opposing counsel concerning post-dissolution decree matters and arguably communicated settlement proposals to opposing counsel. Although the tone of Respondent’s letters to opposing counsel was somewhat lawyerly, Respondent was forthcoming about his suspended status, and he worked under the direct supervision of his employer, a licensed attorney.
The hearing board found that Respondent's prediction to the opposing counsel that he would soon be reinstated and that they would go at it "mano a mano" thereafter "amounted to unwise speculation, but not to a rule violation [of unauthorized practice]."
Not only unwise, also inaccurate. (Mike Frisch)
Not Substantially Related
The New Jersey Supreme Court has affirmed the denial of a motion to disqualify counsel based on a consultation between the attorney and the defendant that did not lead to the attorney's retention. the court majority concluded that the two matters were not substantially related:
Defendant’s motion to disqualify Attorney Lee rightly was denied because defendant has not demonstrated that the matters disclosed during the February 2008 consultation were the same or substantially related to the subject matter of this lawsuit, or that the information disclosed during that consultation was harmful to defendant in this lawsuit. Mrs. Kang’s vague and unsubstantiated assertions that she disclosed business, financial, and legal information related to the current lawsuit does not satisfy defendant’s burden of production and persuasion. In contrast, Attorney Lee provided a detailed recitation of the consultation, accompanied by contemporaneous documents corroborating that it was limited to a particular matter. Finally, defendant’s assertion that disclosures made may become relevant should plaintiff succeed in the lawsuit and seek to enforce a judgment is illusory and premature.
The case is the first matter in which the court interpreted new RPC 1.18, which sets out duties to a prospective client.
The defendant seeking disqualification met with plaintiff's counsel for three hours on February 4, 2008 at a karaoke bar. They agree that they discussed the attorney's willingness to replace counsel in a civil case. The prospective client says (and has a witness) that they discussed quite a bit more. The attorney promptly declined the representation.
This matter involves the attorney's representation of a client who sued a business controlled by the prospective client. The court here concluded that the evidence supported the attorney's version of events, affirming the trial court and Appellate Division's denial of the disqualification motion.
The court notes the "sparse record" and the Hobson's Choice presented to a moving former prospective client to spill the confidential beans to the court deciding the motion. Nonetheless, denial of motion to disqualify affirmed herein.
A dissent concludes that the matter should not be decided on the papers and that the "hotly contested" versions of the meeting requires an evidentiary hearing. (Mike Frisch)
Online Advice Leads To Disciplinary Charges
A North Carolina attorney admitted in 1993 has been charged with ethical violations as a result of his relationship with JustAnswer, an online service that provides expert answers on a variety of topics.
The state bar alleges that, from March 2008 to February 2009, the attorney provided answers to questions of law to users of a service provided by JustAnswer Corporation, a Delaware entity that runs a website named JustAnswer. The website had "experts" in various fields (including law) who gave online advice for fees that ranged from $10-15 per answer. The attorney was registered as an expert in law under two screen names.
The attorney allegedly provided advice to third party users outside of North Carolina and is charged with unauthorized practice of law, aiding unauthorized practice by JustAnswer, sharing fees with a non-lawyer and conduct involving dishonesty. (Mike Frisch)
May 24, 2011
At The Used Car Auction
The Massachusetts Board of Bar Overseers has issued a public reprimand of an attorney who also is a used car dealer. According to the board's summary, this is what led to the sanction:
...the respondent, a used car dealer, attended a used car auction. He was then subject to a bail order prohibiting him from being in the vicinity of his estranged wife. His wife also attended the auction, and the respondent engaged in conduct involving offensive physical contact but no physical injury to the wife.
The attorney pleaded guilty to violation of a condition of release. Charges of domestic violence were reduced to disorderly conduct after a deferred disposition. The conviction was not timely reported to bar counsel. (Mike Frisch)
Non-Party Standing For Motion To Disqualify Counsel
The Wisconsin Supreme Court reversed and remanded a case, concluding that a non-party had standing to raise disqualification of counsel but that the lower court improperly applied an "appearance of impropriety" test to the motion:
...to determine whether disqualification is required, a court must determine: (1) whether there was an attorney-client relationship and whether it has ceased; (2) whether the subsequent representation of another person involves the same or a substantially related matter; (3) whether the interests of the subsequent client are materially adverse to those of the former client; and (4) whether the former client consented to the new representation. In the instant appeal, it is undisputed that an attorney-client relationship had existed between the Cramer firm and Wayne Foster and the Foster Group and that the Cramer firm no longer represented Wayne Foster or the Foster Group at the time the slip-and-fall litigation began. Furthermore, no one asserts that the former clients (Wayne Foster and the Foster Group) have consented to the Cramer firm's representation of the plaintiffs in the present case...
We conclude that the circuit court applied an incorrect standard of law in disqualifying the plaintiffs' attorney, namely disqualifying the attorney on the basis of the "appearance of impropriety." Given the paucity of facts in the record relating to the attorney's prior representation of the Foster Group and Wayne Foster, we are unable to determine whether the two representations are substantially related such that the confidences of the Foster Group and Wayne Foster are implicated in this personal injury action or whether the current representation is materially adverse to the former client.
We cannot determine from the record before us whether the circuit court's order disqualifying the plaintiffs' attorney is erroneous when applying the correct standard. Accordingly, we reverse the order of the circuit court disqualifying the plaintiffs' attorney and remand the matter to the circuit court for such further proceedings as the circuit court determines are appropriate to resolve the question presented.
Justice Prosser (joined by Justices Ziegler and Gableman) concurred but
In reaching this result, however, the lead opinion engages in a lengthy review of Wisconsin cases and produces, in effect, a restatement of the law. It is this restatement of Wisconsin law on standing that triggers two concurrences and some angst.
To the extent that the lead opinion attempts to bring order out of chaos in our law on standing, it serves a constructive purpose. We all benefit when the court provides a clear restatement of the law. However, if the restatement changes the law while purporting simply to clarify it, it goes beyond the facts, effects a result that was neither requested nor briefed by the parties, and creates confusion among the bench and bar.
The Timing Is Off
The New York Appellate Division for the Second Judicial Department imposed a suspension of two years for ethics violations relating to an attorney's operation of her escrow account. The court rejected proferred mitigation:
At the hearing, the respondent, through her own testimony and witnesses called on her behalf, attempted to mitigate her conduct based on the emotional disturbances she was experiencing at the time. The respondent testified that during the relevant time period, she was emotionally distraught and unstable due to various mental health issues and the medications prescribed to treat her condition. The Grievance Committee points out that the respondent was under no impairment when many of the improper practices relating to her escrow account were initiated.
The respondent has no prior disciplinary history.
We conclude that the respondent lacked a basic understanding of her ethical obligations as an attorney and engaged in serious professional misconduct. Notwithstanding the absence of harm to clients and the lack of venality, the respondent's professional misconduct under the circumstances warrants a suspension from the practice of law for a period of two years.