Friday, June 10, 2011

Practice Pointer: You Can't Sue A Current Client

The New Jersey Supreme Court has reprimanded an attorney for his response to the "age old" conflict of interest between diligent representation and non-payment of accumulated fees.

While representing an incarcerated client on a murder charge, the attorney sought to withdraw due to unpaid fees. Denied. He then sued his current client for fees, forcing the court to remove him. This conduct violated Rule 1.7.

The court's syllabus explains the facts:

Respondent represented the client from March 2005 through August 2008. By late July 2007, respondent was owed $50,000 in legal fees. At that time, the client's brother told respondent that he was going to refinance a property he owned and he agreed to pay respondent the $50,000 out of the refinancing. The brother subsequently told respondent that he could pay only $10,000 from the refinancing but would pay the remaining fees later. This was confirmed in writing. When the brother paid respondent an additional $10,100, in March 2008, the funds did not come from a refinancing, but from the brother's sale of the property. Respondent was owed $70,000 in fees at that time and had incurred $13,846.57 in costs, but had been paid only $20,764 in fees.

After the client's brother told respondent in June 2008 that "there was no more money," and suggested that the client "take a plea," respondent wrote to the family and to his client informing them that the balance due was more than $60,000 and that he would have to move to be relieved as counsel if payment was not made. Respondent advised them of their right to fee arbitration pursuant to Rule 1:20A-6 (the pre-action notice) and that he would have to sue to collect the balance if payment was not received within thirty days. Respondent moved unsuccessfully to be
relieved as counsel in July 2008. He informed the court of his intention to sue to collect the fees owed. The court set a trial date on the murder charges for December 2008. In late August, respondent filed a complaint against his client and the client's family for $74,000 in legal fees and costs. Later, by two amended complaints, he increased the amount sought to nearly $87,000 and also sought to have the sale of the property set aside on the ground that the sale to another family member for $1 was fraudulent and intended to keep respondent from being able to reach it to
satisfy his fees.

Respondent reported to the trial court in late September that he was ready to proceed with trial on the murder charges, but after the client learned of the suit for the fees, the client asked for new counsel. The trial court relieved respondent as counsel at that point because the court perceived that it would be impossible for respondent to represent his client in a murder trial now that he had sued for the fees. Respondent maintained he could represent the client, stating later that he had named the client in the action because he believed he had to, but that his intention was to collect only from the client's family. The judge referred the matter to the Office of Attorney Ethics (OAE).

As to sanction:

In respondent's case, as the unpaid fees grew, he sought unsuccessfully to withdraw as counsel. Although his situation was difficult, there is a clear inference from the record that respondent sued his client for the purpose of being relieved after the trial court initially denied his motion to withdraw. Knowingly creating an irreconcilable conflict of interest for that purpose by filing suit requires discipline. Mitigating factors that affect the quantum of discipline in this matter include: (1) respondent provided a pre-action notice and moved to withdraw before filing suit; (2) he included the client in the suit only because he believed the client was an indispensable party as the clientand a party to the retainer agreement; (3) respondent never looked to recover payment from the client; (4) the OAE has conceded there is a perception of a lack of clarity in the RPCs, and (4) respondent has never been disciplined during his thirty-one years as a member of the bar. The Court defers to the DRB determination that respondent be reprimanded.

The court looked to the Rules of Professional Conduct and the Restatement for guidance and clearly had sympathy for the situation that the attorney found himself in. However, the court was clear that an attorney may not create a conflict in order to be relieved of the obligations of the representation.

Justice Rivera-Soto concurred in part and dissented in part. In his view, the "proper resolution of this matter is to adjudge the Respondent liable for an infraction...but impose no discipline."

Why had the attorney let the fees accumulate? "They are from Perth Amboy." (Mike Frisch)

June 10, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Ballad Of Marvin And Myrna

In orders linked here and here, the Pennsylvania Supreme Court disbarred the husband and suspended the wife for a year and a day. They practiced as a firm ( Galfand & Galfand) since around 2000.

In 2006, the husband was suspended. The wife continued to practice under the firm name until 2009. The wife assisted in the husband's unauthorized practice of law, including an arbitration hearing where they represented themselves as law partners (he did most of the talking). There was a complaint filed under M. Galfand (both husband and wife have first names that start with that initial) that contained phone numbers for both of them.

It appears that the misconduct came to light during the course of the hearing of the husband's petition for reinstatement. (Mike Frisch)

June 10, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

And Take Your Parents With You

The Vermont Supreme Court has held that a litigant had no right to bury the cremated remains of his parents in a hilltop cemetery on the farm formerly owned by his family. The court looked to the common law of family gravesites (which I believe my professor did not cover in teaching me the common law antecedents of civil procedure).

The facts:

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner, J. Michel Guite, now owns the farm property.  He claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent’s family purchased the farm property in 1950 and owned it until 1983.  Prior to selling the property, respondent, Jerome King, buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot.  Thus, he contends title to the plot remained with the farm so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

The material facts are not in dispute.  During their ownership and use of the Hartland farm from approximately 1775 until 1853, the Aldrich family and its descendants buried at least three family members in the hilltop cemetery.  When Aldrich family descendants Jude and Rebecca Adams sold the entire farm property in 1853, the deed included the following language:  “We . . . do freely give grant sell convey and confirm . . . a certain piece of land lying and being in Hartland . . . . Possession to be given the first day of April 1854.  Excepting out of the above described premises 41 feet of ground by 27 feet which is the burying ground on said premises.”  (Emphasis added.)  The record contains no evidence that the Adams’s or their heirs recorded a separate deed to the cemetery plot, nor any evidence that the family ever paid property taxes on the plot.  The cemetery exception that began with the 1853 deed was included in all subsequent deeds transferring the farm property.

In 1950, respondent’s parents purchased the farm and lived there for about thirty years.  In 1981, after his parents passed away, respondent buried both of their cremated remains in the cemetery.  When respondent carried out this burial, he neglected to obtain any burial permits from the town.  He did not seek permission to use the hilltop cemetery from any remaining Aldrich family descendants.  In 1983, respondent sold the entire Hartland farm property on behalf of his family’s trust.

The holding:

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely only upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.

(Mike Frisch)

June 10, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Collateral Estoppel In Bar Discipline.

The New York Appellate Division for the Third Judicial Department has held that principles of collateral estoppel established misconduct by an attorney in proceedings before a bankruptcy court. The bankruptcy court had found that the attorney engaged in acts of misconduct and referred the matter to disciplinary authorities.

As to sanction:

In determining an appropriate disciplinary sanction, we measure respondent's misconduct against his extremely stressful family circumstances, his lack of adverse prior discipline, his expression of remorse, and his hitherto excellent personal and professional reputation as evidenced by the character affidavits that he has submitted and his public and pro bono contributionsto various causes. We conclude that, under all of the particular circumstances presented, respondent should be censured.

The misconduct involved a false statement and false accusations against the bankruptcy judge.

(Mike Frisch)

June 10, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 9, 2011

Ohio Welcomes You

From the web page of the Ohio Supreme Court:

The process for seeking a law license in Ohio just got a little bit easier with the launch of a new web portal at supremecourt.ohio.gov.

Applicants to be admitted to practice law in the state of Ohio must undergo a rigorous process that includes the submission of documents and information supporting certain requirements of education, credentials, character and fitness to be a licensed member of the bar.

Once an application is submitted in person or through the mail, the new Bar Admissions Online Services page will allow applicants to access information about their application, see where it is in the process, submit supplemental information and documents, and perform other tasks in one central location.

“This is the culmination of a lot of work by Supreme Court staff to use technology to make the process easier for applicants and ultimately save money by making the process more efficient,” said Supreme Court of Ohio Administrative Director Steven C. Hollon.

The new Bar Admissions Online Services page is available on the Court’s home page (www.supremecourt.ohio.gov) by clicking the button that says “Bar Admissions Online Services.”

(Mike Frisch)

June 9, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Fee Writing Required In Real Estate Practice

The New Jersey Supreme Court agreed with its Disciplinary Review Board and imposed a public censure of an attorney who had inflated the cost of title insurance to cover possible later charges in real property transactions.

The attorney failed to advise clients of the inflated charge and the DRB rejected his explanation: "Respondent speculated that the clients would have objected, had he asked for the additional funds. We find this explanation insufficient. That the clients might have objected did not relieve him from his duty of candor toward them."

The District Ethics Committee had rejected charges that the attorney failed to have written fee agreements with real estate clients. The committee pointed to the nature and custom of that area of practice. The DRB disageed: "Time constraints and pressure of the real estate market notwithstanding, the rule must be followed. " (Mike Frisch)

June 9, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 8, 2011

Scenes From A Marriage

The New Jersey Supreme Court has imposed a one-year suspension with fitness of an attorney who had previously been censured for domestic violence. The case involves a second instance of such conduct. According to the report of the Disciplinary Review Board:

Although the end of a marriage is not something to hail, we are encouraged that [the attorney] has ceased all contact with [his wife], which, in his words, "ensures that the conduct will not recur." Nevertheless, we are faced with the reality that he has engaged in this "conduct," not once, but twice.

In sum, the fact that this is the second time that [he] has beaten up his wife, the brutality of the offense, including his threat to kill her, the lengthy prison sentence imposed on [him] for the attack, and the absence of compelling mitigating factors, we determine to impose a one-year suspension...

The attorney had served as corporate counsel to AT&T.

The DRB report found that the attorney's treatment for "intermittent explosive disorder" was a mitigating factor but that his wife's alleged alcoholism was not. The crime took place after the wife had poured ice cubes on his head to "cool him down."

 (Mike Frisch)

June 8, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rape Offense Unconstitutional Where Both Are Under 13

The web page of the Ohio Supreme Court reports on a decision issued today:

The Supreme Court of Ohio ruled today that the state law that defines sexual activity with a child under the age of 13 as rape is unconstitutional as applied to sexual conduct between two children who are both under 13 when neither child uses force or impairs the other in any way.

The Court’s 7-0 decision held that R.C. 2907.02(A)(1)(b), a subsection of Ohio’s rape statute which provides that “no person shall engage in sexual conduct with another ... ” when “the other person is less than 13 years of age” is unconstitutionally vague and violates the right to equal protection of the laws when it is applied to charge one but not the other of two children under the age of 13 who engage in sexual conduct with one another.

The decision, which reversed a ruling by the 5th District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

The case involved a 12-year-old boy identified as D.B. and his 11-year-old friend, identified as M.G., who engaged in sex acts with each other on several occasions. In each instance, D.B., who was physically taller and heavier than M.G., was the instigator of the sexual conduct. Both boys and a mutual friend who witnessed some of the acts testified that M.G. consented to the conduct. When the boys’ parents discovered the conduct, D.B. was charged with multiple delinquency counts of rape in the Licking County Juvenile Court. The complaint alleged that D.B. had committed forcible rape under R.C. 2907.02(A)(2) or in the alternative had committed statutory rape in violation of R.C. 2907.02(A)(1)(b) by engaging in non-forcible sexual conduct with a child under the age of 13.

Attorneys for D.B. filed a pretrial motion to dismiss the statutory rape charges on the basis that both participants had “engaged in sexual conduct” with a person under the age of 13, and therefore applying R.C. 2907.02(A)(1)(b) to charge one participant as the perpetrator and the other as the victim violated the equal protection and due process provisions of the state and federal constitutions.

The juvenile court deferred ruling on the motion to dismiss until after it had reviewed the evidence and testimony presented at trial. After dismissing several of the original rape counts and concluding that D.B. had not coerced M.G. by force or threat of force on any of the occasions they engaged in sexual conduct, the court adjudicated D.B. guilty of five delinquency counts of statutory rape based solely on R.C. 2907.02(A)(1)(b). D.B. was sentenced to a term of commitment to the Ohio Youth Commission of a minimum of five years to a maximum of his 21st birthday, with the full term of commitment suspended indefinitely. He was also ordered to attend counseling and group therapy.

D.B. appealed. The 5th District Court of Appeals upheld the juvenile court’s judgment, holding that the trial court’s application of R.C. 2907.02(A)(1)(b) to convict D.B. of delinquent statutory rape under the facts of the case was not unconstitutional. D.B. sought and was granted Supreme Court review of the 5th District’s ruling.

In today’s decision, Justice Lanzinger wrote: “D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional in two ways. First, he argues that the statute is vague as applied to children under the age of 13, and thus violates his right to due process. Second, he argues that the statute was applied in an arbitrary manner in this case in contravention of his constitutional right to equal protection.”

“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. ...”

“As applied to children under the age of 13 who engage in sexual conduct with other children under the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down.”

“The facts of this case provide an example of the temptation for prosecutors to label one child as the offender and the other child as the victim. Based apparently upon the theory that D.B. forced M.G. to engage in sexual conduct, the state alleged that D.B., but not M.G., had engaged in conduct that constituted statutory rape. However, while the theory of D.B. as the aggressor was consistent with the counts alleging a violation of RC. 2907.02(A)(2), which proscribes rape by force, this theory is incompatible with the counts alleging a violation of statutory rape because anyone who engages in sexual conduct with a minor under the age of 13 commits statutory rape regardless of whether force was used. Thus, if the facts alleged in the complaint were true, D.B. and M.G. would both be in violation of R.C. 2907.02(A)(1)(b).”

“The prosecutor’s choice to charge D.B. but not M.G. is the very definition of discriminatory enforcement. D.B. and M.G. engaged in sexual conduct with each other, yet only D.B. was charged. The facts of this case demonstrate that R.C. 2907.02(A)(1)(b) authorizes and encourages arbitrary and discriminatory enforcement when applied to offenders under the age of 13. The statute is thus unconstitutionally vague as applied to this situation. ...”

“We note that while we hold that R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13 who engages in sexual conduct with another child under the age of 13, a child under the age of 13 may be found guilty of rape if additional elements are shown: the offender substantially impairs the other person’s judgment or control, R.C. 2907.02(A)(1)(a); the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or advanced age, R.C. 2907.02(A)(1)(c); or the offender compels the other person to submit by force or threat of force, R.C. 2907.02(A)(2). None of those additional elements was present here.”

“Application of R.C. 2907.02(A)(1)(b) in this case also violates D.B.’s federal right to equal protection. The plain language of the statute makes it clear that every person that engages in sexual conduct with a child under the age of 13 is strictly liable for statutory rape, and the statute must be enforced equally and without regard to the particular circumstances of an individual’s situation. R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. Because D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, while at the same time both could have been charged under the offense. Application of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Yvette McGee Brown. Justice Robert R. Cupp concurred in the Court’s judgment, syllabus, and opinion solely on the basis of the due process analysis.

The decision is linked here.  (Mike Frisch)

June 8, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Not Like The Movies

In its unanimous decision yesterday in the case of Fox v. Vice (great case name), the United States Supreme Court remanded to the lower court with instructions to determine attorney's fees where there is a mix of frivolous and non-frivolous claims. Fees are limited to the work performed in response to the frivolity.

Justice Kagan's observation about the realities of litigation is worthy of note:

These standards would be easy to apply if life were like the movies, but that is usually not the case. In Hollywood,litigation most often concludes with a dramatic verdict that leaves one party fully triumphant and the other utterly prostrate. The court in such a case would know exactly how to award fees (even if that anti-climactic scene is generally left on the cutting-room floor). But in the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories andhave different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.

(Mike Frisch)

June 8, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Question Of The Day

The New York Appellate Division for the Second Judicial Department has imposed a public censure for an attorney's convictions for driving and related offenses. The court sustained findings of misconduct based on the following:

Charge two alleges that the respondent is guilty of engaging in illegal conduct that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer in that he was convicted of a crime within the meaning of Judiciary Law § 90(2), in violation of rule 8.4(b) of the Rules of Professional Conduct (see 22 NYCRR 1200.0).

Specifically, on November 19, 2009, the respondent also pleaded guilty before Judge Spergel in the District Court, Nassau County, to the crime of aggravated driving while intoxicated, in violation of Vehicle and Traffic Law § 1192(2-a), and operating a motor vehicle without being restrained by a safety belt, in violation of Vehicle and Traffic Law § 1229-c(3), an infraction.

On November 19, 2009, the respondent admitted before Judge Spergel that, on January 19, 2009, he consumed alcohol, became intoxicated, and operated a motor vehicle westbound on the Wantagh State Parkway, without wearing a seatbelt.

On February 10, 2010, the respondent was sentenced to a $1,000 fine for aggravated driving while intoxicated, revocation of his driver's license, and three years' probation with conditions imposed pursuant to the RAPP, to run concurrently with other probationary conditions, a $100 fine for operating a motor vehicle without being restrained by a safety belt, a surcharge of $165, and a CVAF charge of $20.

Is it really an ethical violation not to wear a seatbelt?

The case is Matter of Piken, decided May 31, 2011. (Mike Frisch)

June 8, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Progressive Penalties In Successive Misconduct Cases

An attorney who had a significant record of prior discipline had his license revoked by the Wisconsin Supreme Court. The court affirmed findings of 17 ethical violations. The attorney had finally run out of second chances:

Attorney...'s professional misconduct requires the severest level of discipline that we impose, namely, the revocation of his license to practice law in Wisconsin.  Attorney...has repeatedly failed to diligently pursue his clients' cases, failed to keep clients informed, and ignored their repeated requests for information on their cases.  Attorney...'s misconduct is aggravated by a number of factors.  He has previously been disciplined.  He has an established pattern of allowing his clients to believe he was pursuing claims on their behalf, when, in fact, he failed to work on their claims.  He has committed multiple violations of supreme court rules and has repeatedly failed to cooperate with OLR in its investigations.

In considering the appropriate sanction we are mindful that we follow a practice of applying progressive penalties in successive misconduct cases.  In Attorney...'s most recent disciplinary matters the OLR sought revocation but Attorney...obtained a lengthy suspension instead.  No additional leniency is warranted now.  Revocation is appropriate and we deny Attorney...'s request that we impose that revocation retroactive to an earlier date.  We further determine that Attorney...should be required to pay the full costs of this matter.

(Mike Frisch)

June 8, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 7, 2011

Attorney Charged With Popsicle Threat

The Illinois Administrator has filed a complaint alleging misconduct on the part of an attorney who had entered into a contract to serve as chief legislative counsel to the Little River Band of Ottawa Indians ("LRBOI"), a tribe located in Michigan. The complaint alleges that he was required to become a member of the Michigan Bar within six months and that the tribe sought to terminate him when he did not do so.

Then:

During the Tribal Council meeting, Respondent entered the meeting room and inquired about the nature of the Tribal Council's discussions.

Upon learning that the discussions pertained to who had authority to terminate Respondent's employment contract, Respondent told the Tribal Council that he would sue them if his employment contract was terminated.

When Norbert Kelsey, one of the Tribal Council members, expressed concern to Respondent regarding Respondent's threat to file a suit against the LRBOI, Respondent referred to Councilman Kelsey as a "joke."

After Councilman Kelsey left the room, Respondent made the following statements to the remaining Tribal Council Members about Councilman Kelsey:

"I will fucking kill that god damn pervert. I will kill him. If he thinks I won't I'll take that fucking cane of his and shove it right up his ass. Make him into a popsicle. I'm sick of his shit. Questioning me saying I was a token at Northwestern...

I'll kill his ass."

He also is charged with a conflict of interest, unauthorized communication with a represented party and instituting frivolous litigation. (Mike Frisch)

June 7, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Punitive Damages Against Firm

From the New York Appellate Division for the First Judicial Department:

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered March 3, 2011, which, to the extent appealed from, granted defendants' motion for an order striking the demand for punitive damages, and denied plaintiff's cross motion for an order permitting plaintiff to seek full economic damages on his claim of conspiracy to commit fraud, unanimously affirmed, without costs.

Plaintiff was an associate at defendants' firm when two of its partners left to open a intellectual property practice at another firm. This new firm offered plaintiff a "partnership track" position with a salary increase and signing bonus. Plaintiff commenced this action alleging that, from March 2002 to May 2005, defendants entered into a deceitful scheme to prevent him from leaving the firm at a point in time when he was the key associate on patent infringement litigation for an important client. Plaintiff claims that, while he was promised that he would be voted on for partnership, and assured that he would eventually be made partner, his employment was terminated soon after he successfully concluded the litigation which the firm had been eager to keep.

Punitive damages are not available "in the ordinary fraud and deceit case" (Walker v Sheldon, 10 NY2d 401, 405 [1961] [internal quotation marks and citation omitted]), but are permitted only when a "defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007], quoting Walker at 405). Mere commission of a tort, even an intentional tort requiring proof of common law malice, is insufficient; there must be circumstances of aggravation or outrage, or a fraudulent or evil motive on the part of the defendant (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993]).

Neither defendants' alleged misrepresentations concerning their support for plaintiff's partner candidacy, nor the breach of their contractual promise to put him up for a partnership, evidence such a high degree of moral turpitude and wanton dishonesty as to imply criminal indifference. Cases involving mere fraudulent misrepresentations to induce a party to accept an employment agreement, do not warrant imposition of punitive damages (see Kelly v Defoe Corp., 223 AD2d 529 [1996]).

As for plaintiff's cross motion, it is well settled that New York does not recognize an independent civil tort of conspiracy (Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424, 425 [2006]; see Algomod Tech. Corp. v Price, 65 AD3d 974 [2009], lv denied 14 NY3d 707 [2010]). While a plaintiff may allege, in a claim of fraud or other tort, that parties conspired, the conspiracy to commit a fraud or tort is not, of itself, a cause of action (see MBF Clearing Corp. v Shine, 212 AD2d 478, 479 [1995], citing Brackett v Griswold, 112 NY 454 [1889]).

Given that civil conspiracy is not an independent tort, it cannot have its own independent measure of damages; any damages attributable to plaintiff's conspiracy claim exists only within those damages that may be assessed for fraud. Those damages, as previously determined by this Court, are "the difference between the immediately payable portion of the other firm's offer, such as the signing bonus, and the sum [plaintiff] received from defendant law firm immediately after agreeing to remain with defendant" (citations omitted)...We have previously held that plaintiff's damages may not include any amount based on continued employment with the other firm, since the duration and success of his career with that firm are speculative (citation omitted)

I'm having trouble with links. The case is Hoeffner v. Orrick, Herrington & Sutcliffe LLP, decided today. (Mike Frisch)

June 7, 2011 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Attorney Suspended For Failure To Tell Client He Had No Malpractice Insurance

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio has suspended the Ohio law license of [a] Covington KY attorney...for two years, with the final 18 months of that term stayed on conditions.

In a 7-0 per curiam opinion released today, the Court affirmed findings by the Board of Commissioners on Grievances and Discipline that [the attorney] violated state attorney discipline rules when he failed to properly notify a client at the time [his] services were engaged that he was not covered by professional malpractice insurance, and failed to promptly return funds that the client was entitled to receive.

While indicating that it has imposed a public reprimand as the appropriate penalty for similar misconduct in other cases, the Court noted that [the attorney] has been disciplined in Ohio on two prior occasions for failure to properly notify clients regarding his lack of malpractice insurance, and also received a stayed license suspension from the Supreme Court of Kentucky in 2010 for similar misconduct.

In light of those prior offenses, the Court imposed a two-year license suspension with the final 18 months stayed. The stay is conditioned on [his] completion of 18 months of probation during which he will be monitored by an attorney appointed by the Cincinnati Bar Association to ensure that he properly safeguards client funds in his possession and either maintains professional liability insurance or notifies clients regarding his lack of such insurance, in a document signed by the client, at the time his services are engaged.

The opinion is linked here. (Mike Frisch)

June 7, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Back To The Bar

On March 28, 2011, a single justice of the Massachusetts Supreme Judicial Court reinstated a former bar president admitted in 1951. The attorney had been suspended for three years in 2006 for his part in the notorious "law clerk sting" case. He also had served as chair of the Board of Bar Overseers (which administers professional discipline).

Two other lawyers also were disciplined for the scheme to offer a phony job to the former clerk of the judge who had ruled against their client to induce the clerk to make statements that would aid in overturning the judge's decision. The clerk went to Nova Scotia and New York to pursue the "opportunity."

The story of case and the bar prosecution is told in an article that I published in the Georgetown Journal of Legal Ethics. (Mike Frisch)

June 7, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An Unconscionable Fee

The June 2011 California Bar Journal reports:

[An attorney] was suspended for one year, stayed, placed on three years of probation with a 90-day actual suspension and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect Feb. 10, 2011.

[The attorney] stipulated that he charged an unconscionable fee of $258,000 when he had not properly documented or contracted for those fees and he then charged an additional $226,213 in fees to which he was not entitled.

In 1998, several brothers who owned and operated several Mexican restaurants in Arizona and California was arrested on federal felony charges related to their restaurants. [The attorney] was one of several lawyers who represented the brothers in what became an unexpectedly complex case. Another lawyer was empowered to collect fees and hire a defense team.

[The attorney] agreed to represent one of the brothers for $10,000, with the possibility of more fees if required. He handled the client’s cases for four years, made trips to Mexico and Phoenix that included numerous meetings with co-counsel and he obtained reduced sentences for his client and a brother. As a result of that work, he submitted a billing statement for $29,625 in legal fees and $11,250 for costs.

[The attorney's] client and his brother pleaded guilty to criminal charges in Arizona and each was fined $375,000 and sentenced to 13 months in prison. [The attorney] submitted another billing statement for $210,000, plus $35,000 for “good results.” He said he coordinated the leadership for the defense with the IRS and immigration services, met with numerous other attorneys, handled probation and traveled extensively. The following year, he submitted another bill for $226,213 for spending up to 80 hours a month on the brothers’ cases.

One of the brothers sued [the attorney] for malpractice. In the meantime, a company that was formed to sell the brothers’ restaurants’ trademark in order to pay their legal fees went bankrupt. The bankruptcy court ruled that [the attorney] had received $268,000 in fees but was entitled to only $10,000, and in a second ruling, found that his request for the additional $226,213 was excessive because the fees were not properly itemized or earned.

[The attorney's] appeals were denied.

In mitigation, [he] cooperated with the bar’s investigation and he had no prior discipline record.

(Mike Frisch)

June 7, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 6, 2011

Testing And Divorce Both OK In Wyoming

The Wyoming Supreme Court ventures into the culture war with two decisions issued today.

One decision upholds the constitutionality of drug testing students who wish to participate in extracurricular activities; the other holds that the Wyoming courts have jurisdiction to entertain a petition for divorce of a same-sex couple lawfully wed in Canada:

Two Wyoming residents are seeking a legal remedy to dissolve a legal relationship
created under the laws of Canada. We find nothing in Wyoming statutes or policy that
closes the doors of the district courts to them. The district court has subject-matter
jurisdiction to entertain their petition for divorce.

(Mike Frisch)

June 6, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Searching For The MPRE

The California Bar Journal reports:

[An attorney] was suspended for one year, stayed, and placed on one year of probation. The order took effect Sept. 24, 2010.

[The attorney] stipulated that she failed to comply with conditions attached to a 2008 public reproval by not filing three quarterly probation reports or the final report on time, and she took the MPRE exam late.

She also was privately reproved in 2000. In mitigation, she cooperated with the bar’s investigation and she acted in good faith. In addition, she attempted to take the MPRE before the deadline but couldn’t find the exact site. She then was not admitted to the exam site because she was late. She successfully petitioned the bar court for a time extension.

(Mike Frisch)

June 6, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)