June 13, 2011
Allegations Justify Interim Suspension
The North Dakota Supreme Court found sufficient evidence of a threat of public harm to warrant the imposition of an interim suspension while bar charges are pending:
The Application alleges that [the attorney] deposited client retainers into the law firm's business account instead of a trust account and used approximately $30,000 of client funds to pay the operating expenses of the law firm. By email to Assistant Disciplinary Counsel dated May 31, 2011, [He] admitted "there have been family law cases when I have deposited the retainer directly into my law firm's fees account." [His] law firm partner filed an affidavit stating that [he] admitted to using client funds to pay the operating expenses of the law firm. In addition, the Application alleges [the attorney] forged another attorney's signature and letterhead on title opinions to make it appear the other attorney had authored them when, in fact, [he] authored the opinions. In a letter to the inquiry committee dated April 18, 2011, [the attorney] admitted the forgery.
A Lower Standard Of Proof For Doctor Discipline
The Connecticut Appellate Court affirmed sanctions imposed (reprimand, probation and a fine) against a medical doctor on allegations that he had treated and prescribed medications for two minors without ever conducting an examination. The minors were in Nevada.
The court rejected the doctor's contention that his due process rights were violated. The court also rejected the claim that the clear and convincing evidence standard should be applied because that is the burden of proof in attorney discipline proceedings:
The plaintiff’s contention ignores the fact that attorney discipline proceedings, unlike the present matter, are not governed by the [Uniform Administrative Procedure Act]. The statewide grievance committee ‘‘is an arm of the court, and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program.’’ (citation omitted)
"An Alcohol Fueled Rage"
The Rhode Island Supreme Court imposed a suspension of two years for the following criminal conduct:
In the early morning hours of March 14, 2009, in the City of East Providence, the respondent... a member of the bar of this state, entered the dwelling of a friend and business associate without his consent. In what appears to have been an alcohol fueled rage he confronted his friend and a female companion, who was a former intimate partner of the respondent. Wielding a club, he assaulted the female victim, causing injury to her hand. The attorney received a suspended jail sentence in the criminal case. He pleaded no contest to disorderly conduct charges in an unrelated matter. (Mike Frisch)
In the early morning hours of March 14, 2009, in the City of East Providence, the respondent... a member of the bar of this state, entered the dwelling of a friend and business associate without his consent. In what appears to have been an alcohol fueled rage he confronted his friend and a female companion, who was a former intimate partner of the respondent. Wielding a club, he assaulted the female victim, causing injury to her hand.
The attorney received a suspended jail sentence in the criminal case. He pleaded no contest to disorderly conduct charges in an unrelated matter. (Mike Frisch)
Thou Shalt Not Lobby For The Lobby
The Tennessee Court of The Judiciary has reprimanded a juvenile court judge for his advocacy in favor of a "Citizen's Heritage" display in the lobby of his courthouse. The reprimand also addresses his fund raising efforts for the display. The display would have included the Ten Commandments
The Rogersville Review reports that the judge agreed to the reprimand. (Mike Frisch)
Too Long To Decide
From the Tennessee Supreme Court:
The Tennessee Supreme Court today upheld the Court of the Judiciary’s decision that Cocke County General Sessions Court Judge John A. Bell violated the Code of Judicial Conduct for taking too long to decide a personal injury case and participating in an ex parte communication. The high court also affirmed the Court of the Judiciary’s sanctions against Bell, which included a 90-day suspension.
The Court of Judiciary’s disciplinary action came as a result of a complaint from David Pleau, who filed a lawsuit in Bell’s court following a car accident with an uninsured motorist. Pleau, who was acting pro se, named his insurance carrier but not the uninsured motorist in the suit. Merastar Insurance Company, Pleau’s insurance carrier, filed a motion to dismiss the lawsuit. At the end of the hearing, Bell said he would issue his decision in a week.
Despite repeated follow-up from both Merastar and Pleau, Bell did not issue an order until more than nine months after the hearing. In his order, Bell dismissed the action against Merastar citing Pleau’s failure to name the uninsured motorist in the lawsuit.
Due to an apparent oversight by the clerk’s office, neither Merastar nor Pleau received timely copies of Bell’s order. As a result, Pleau was unable to appeal the judgment because the 10-day window for filing an appeal had already expired.
Following this series of events, Pleau filed a complaint against Bell with the Court of the Judiciary. He also filed a second lawsuit in Bell’s court, this time, naming the uninsured motorist in the case.
While the Court of the Judiciary was investing Pleau’s complaint and Pleau’s second lawsuit was still pending, Bell hired a local attorney to contact Pleau and ask him to dismiss the complaint against Bell.
Pleau informed the Court of the Judiciary’s disciplinary counsel about the phone call from Bell’s attorney and the Court of the Judiciary filed formal charges against Bell. The charges included three counts –taking more than nine months to decide Pleau’s case, hearing Pleau’s second case despite already making a judgment in the same matter, and participating in ex parte communication with Pleau while the case was still pending in Bell’s court.
Following a hearing, the Court of the Judiciary found that Bell violated the Code of Judicial Conduct in each of the three counts. As a result of these findings, the Court of the Judiciary suspended Bell for 90 days. The Court also ordered that Bell decide all future cases within 30 calendar days and attend 42 hours of judicial ethics training by the end of 2012.
Bell appealed the Court of the Judiciary’s decision to the Tennessee Supreme Court. In its decision, the Supreme Court provided a historical and legal analysis of its authority to discipline members of the judiciary. The Court unanimously affirmed the Court of the Judiciary’s findings that Bell’s delay in deciding the case and his ex-parte communication violated the Code of Judicial Conduct.
However, the high court disagreed with the Court of the Judiciary’s assertion that Bell should have recused himself from the matter because he did not disclose that he had previously decided the matter.
“A judge’s prior decision in a case does not, in and of itself, make the judge prejudiced against any particular party,” Chief Justice Cornelia A. Clark wrote on behalf of the court.
In reviewing the appropriateness of the sanctions, the Supreme Court noted the seriousness of the findings and stated that the Court of the Judiciary “carefully considered all the factors in imposing a penalty”.
Despite disagreeing with one count of the Court of the Judiciary’s findings, the Supreme Court affirmed the sanctions imposed by the Court of the Judiciary in order “to maintain the integrity of and public confidence in our judicial system and to discourage similar instances of misconduct in the future.”
Bell served his 90-day suspension...
The opinion is linked here. (Mike Frisch)
No Duty, No Malpractice
An attorney who drafts a will has no duty to a beneficiary, according to a recent decision of the Idaho Supreme Court. The court affirmed the grant of summary judgment to the lawyer-defendant in a legal malpractice case.
The will left any of the testator's interests in trusts to the named beneficiary-plaintiff. Trouble was, at the time of death, there were no such interests. These facts did not support the malpractice claim. (Mike Frisch)