June 24, 2011
Blogging Lawyer Gets Reciprocal Discipline
The Wisconsin Supreme Court has ordered reciprocal discline based on sanctions imposed in Illinois in the high-proflie case in which a public defender blogged about her cases.
The court summarized the misconduct:
Attorney...'s misconduct in Illinois consisted of publishing a blog with information related to her legal work from June of 2007 to April of 2008. The public blog contained confidential information about her clients and derogatory comments about judges. The blog had information sufficient to identify those clients and judges using public sources.
In addition, Attorney...'s misconduct involved failing to inform the court of a client's misstatement of fact. One of her clients told a judge, on the record, that she was not using drugs. Later, the client informed Attorney...that the client was using methadone at the time of her statement in court. Attorney...did not inform the judge of this fact or correct the client's misstatement.
The sanction is a suspension for 60 days.
Our coverage of the Illinois case is linked here. (Mike Frisch)
An attorney who admitted that he had "desperately hung on too long" to law practice has been suspended for one year by the Iowa Supreme Court.
The attorney was admitted in 1971. He went on inactive status in July 2009 in the wake of an order from a federal bankruptcy court that had required him to cease his bankruptcy practice and so advise his clients. According to the court here, he "repeatedly violated this order."
The court's opinion describes an accumulation of ethics violations over the last decade of his practice. The court also noted a number of health issues that the attorney had suffered.
The court did not impose the sanction of a 2-3 year suspension proposed by its Grievance Commission. (Mike Frisch)
No Conflict In Insurer-Insured Representation
A Louisiana Hearing Committee in the main rejected charges bought by the Office of Disciplinary Counsel in a case involving a host of ethical charges arising from the classic insurer-insured trilemma. The fact pattern of the case presents issues that have the feel of a law school hypothetical.
In 1995, St. Paul Insurance assigned the defense of a medical malpractice case to a partner in a Baton Rouge law firm. He (Partner One) evaluated the case and assigned primary responsibility for the litigation to Partner Two.
Partner Two made a minor procedural mistake involving the filing of a jury bond. The matter nonetheless proceeded and was settled at a mediation. Partner Two has not advised the doctor of the mediation or otherwise kept him apprised of developments. Under the insurance contract, the doctor had no legal right to prevent the insurer from settling the matter.
Partner Two advised the doctor of the settlement the day it was reached. He went ballistic. He sued the law firm for legal malpractice. A jury awarded the doctor $138,500 in damages, assessing Partner One as 30% and Partner Two as 70% responsible. The suit bounced around the courts for several years and eventually the lawyers prevailed. Bar charges followed.
The hearing committee found that the attorneys had provided competent and diligent representation. Partner One did not fail to properly supervise Partner Two. Neither violated withdrawal duties or engaged in conduct prejudicial to the administration of justice.
Notably, the hearing committee found no violation of conflict of interest in the dual client representation.
The only violations found were Rule 1.4, duty to communicate with the doctor client. Partner One failed to advise him of the procedural glitch (he was still reponsible for the case at the time); Partner Two had not kept the doctor in the loop and had not advised him of the mediation.
The committee found Partner Two's violation more serious. They recommend a public reprimand for her and an admonition for Partner One.
According to the firm's web page, Partner One (a name partner) remains at the firm; Partner Two has departed.
The decision of the Louisiana Supreme Court in the legal malpractice case is linked here. (Mike Frisch)
No Bias In "Ill Chosen" Comment By Judge
The South Dakota Supreme Court denied the request of a criminal defendant to be resentenced before another judge because of remarks the judge made at sentencing:
Defendant, a Native American, argues that he was denied due process in sentencing when the judge voiced a racial stereotype to describe his violent behavior under the influence of alcohol. The judge used the term “go native.” In defendant's view, the remark was “improper” and “gave the impression of bias and prejudice” entitling him to resentencing before another judge. Although the term was ill chosen, upon examining the judge’s entire remarks, we detect no risk of actual bias based on objective and reasonable perceptions, and thus, we affirm. (Mike Frisch)
Defendant, a Native American, argues that he was denied due process in sentencing when the judge voiced a racial stereotype to describe his violent behavior under the influence of alcohol. The judge used the term “go native.” In defendant's view, the remark was “improper” and “gave the impression of bias and prejudice” entitling him to resentencing before another judge. Although the term was ill chosen, upon examining the judge’s entire remarks, we detect no risk of actual bias based on objective and reasonable perceptions, and thus, we affirm.
June 23, 2011
Nix To Tix Fix
The Mississippi Supreme Court rejected the recommendation of its Commission on Judicial Performance for a public reprimand and imposed a 30 day suspension without pay (along with the reprimand) of a justice court judge who had fixed misdemeanor tickets.
There were nine tickets involving for the following offenses: hunting over bait, failure to wear hunter's orange, hunting without a license and littering. The judge also tried to intervene in three tickets that were before another judge.
Justice Kitchens concurred in part and dissented in part. He would follow the Commission's recommendation as to sanction. (Mike Frisch)
Plea Precludes Malpractice Relief
The West Virginia Supreme Court has held that a criminal defendant who, after securing habeas relief, thereafter pled nolo contendere to criminal charges is precluded from seeking damages on a claim of legal malpractice:
[A] defendant who enters a plea of nolo contendere and is convicted and sentenced as a result thereof cannot contend that the attorney’s negligence was the proximate cause of such sentence. Consequently, in a legal malpractice action brought by a plaintiff against his criminal defense attorney arising out of the plaintiff’s conviction in which the plaintiff subsequently was awarded a new criminal trial and the plaintiff thereafter pleads nolo contendere rather than being retried, evidence of the plaintiff’s conviction and sentence resulting from the nolo contendere plea bars the plaintiff from recovering any incarcerated-related damages. In such circumstances, the plaintiff’s valid conviction and sentence are the sole legal cause for his incarceration and related damages. There is a dissent from Justice Ketchum, who finds the majority decision contrary to 148 years of precedent as well as rules of procedure and evidence. (Mike Frisch)
[A] defendant who enters a plea of nolo contendere and is convicted and sentenced as a result thereof cannot contend that the attorney’s negligence was the proximate cause of such sentence. Consequently, in a legal malpractice action brought by a plaintiff against his criminal defense attorney arising out of the plaintiff’s conviction in which the plaintiff subsequently was awarded a new criminal trial and the plaintiff thereafter pleads nolo contendere rather than being retried, evidence of the plaintiff’s conviction and sentence resulting from the nolo contendere plea bars the plaintiff from recovering any incarcerated-related damages. In such circumstances, the plaintiff’s valid conviction and sentence are the sole legal cause for his incarceration and related damages.
There is a dissent from Justice Ketchum, who finds the majority decision contrary to 148 years of precedent as well as rules of procedure and evidence. (Mike Frisch)
Out Of Character
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has voted to permanently disbar former Cleveland attorney Dea Lynn Character.
In a 7-0 per curiam opinion released today, the Court affirmed findings by the Board of Commissioners on Grievances & Discipline that Character committed more than 40 violations of state attorney discipline rules in her dealings with multiple clients over a four-year period.
Those violations included, among others, neglect of multiple civil and criminal matters entrusted to her by clients, charging clearly excessive fees and failing to perform promised legal services or refund the clients’ fees; accepting employment in cases she was not prepared to handle; failing to maintain funds she held on behalf of clients in a separate trust account; entering into business and financial relationships with clients without disclosing personal interests that might conflict with the clients’ interest; and engaging in conduct prejudicial to the administration of justice; conduct involving dishonesty, deceit or misrepresentation; and conduct that reflects adversely on her fitness to practice law.
In adopting the disciplinary board’s recommended sanction of permanent disbarment, the Court found the aggravating factors that Character, who is currently incarcerated at the Marysville Correctional Facility for criminal acts not addressed in the current complaint, had a history of prior disciplinary offenses, engaged in a pattern of misconduct involving multiple offenses, refused to acknowledge the wrongful nature of her conduct, caused harm to vulnerable clients and other victims, and failed to make restitution.
The court rejected the attorney's claim that the criminal proceedings caused prejudice to her in the disciplinary case. Further, the court held that she had no right to appear at the bar proceeding while incarcerated. Her right to testify was protected by a video deposition.
The attorney was found to have engaged in misconduct by doing business as Character, Character & Associates when she was a sole practicioner.
Cheese, Sausage And Reinstatement To Practice
The Wisconsin Supreme Court rejected a referee's unfavorable recommendation and granted the reinstatement of an attorney on the third try.
The attorney was admitted in 1975 and agreed to revocation in 1992. He had converted $550,000 in funds from Milwaukee Cheese Wisconsin, Inc. and Sheboygan Sausage, Inc. He had been appointed to represent these entities in bankruptcy proceedings. He also had embezzled funds from his mother's living trust.
He pleaded guilty to federal offenses and was sentenced to 27 months in prison.
Although the court found the misconduct "reprehensible," it concluded that reinstatement was appropriate. Notably, he has yet to make full restitution.
Justice Prosser dissented. (Mike Frisch)
The Heart Is A Lonely Hunter
The Illinois Administrator has charged an attorney with ethical violations in two matters assigned to him as an assistant state's attorney.
One set of charges involve his interactions with a juvenile that he was prosecuting. The juvenile was on probation. He was assigned to handle her probation revocation matter.
The juvenile was arrested on a warrant and picked up additional charges of resisting arrest. She was locked up and they saw each other in court proceedings. The attorney learned that she drank to intoxication "almost daily" and was dating a 30 year. He was 34.
In a courthouse encounter, the attorney learned that the juvenile was interested in photojournalism. He offered to lend her a camera and showed up at her grandparent's house (where she was staying). The complaint alleges:
Respondent drove to K.I.’s grandparents’ home and stated that he was there to lend K.I. a camera to assist her in her pursuit of her photography career. Respondent invited K.I. to join him in a shopping trip to Sterling, Illinois. K.I. agreed and accompanied Respondent in his car to Wal-Mart and dinner at Appleby’s restaurant. On the route home in the car, K.I. told Respondent that she had "a crush on him forever." Respondent asked K.I. if she wanted to "hang out" again, and K.I. told Respondent that she was going to a halfway house. Respondent and K.I. returned her grandparents’ home, and before K.I. exited the car, Respondent kissed K.I. Respondent placed his hand on K.I.’s knee and invited her back to his apartment. K.I. refused, departed the car and Respondent drove away.
On January 25, 2010, Respondent sent the following four text messages to K.I.:
"11:23 a.m. Good morning! I had fun last night and I am looking forward to seeing you again tonight. Also, for right now, let’s not create gossip, so let’s be discrete.
12:05 p.m. Let’s take some pictures tonight.
4:02 p.m. I think I can get out of here by 4:30. How about I pick you up at 5:00?
4:07 p.m. Hey this is hunter. Just checking 2 c if my txts r getting 2 u.
K.I. did not respond to the text messages. Respondent then telephoned K.I. K.I.’s grandmother answered the telephone and asked Respondent not to communicate further with her granddaughter.
Hunter is the attorney's first name.
The matter was disclosed to the juvenile's probation officer. The attorney was confronted by his superiors and allowed to resign rather than fired.
The charges in a second matter assigned to the attorney for prosecution are set forth in the Administrator's complaint:
As a result of Respondent’s position as Assistant’s State’s Attorney and his prosecution of the A.F. case wherein J.C. was the State’s primary witness and victim, both J.C. and her mother, N.C., trusted Respondent and believed he was pursuing J.S. best interests because of his position as an Assistant State’s Attorney.
After June 2009, during the course of his prosecution of the A.F. matter, Respondent developed a personal relationship with J.C. Respondent and J.C. exchanged e-mails and text messages, and communicated on Facebook and MySpace about matters of a personal nature and matters unrelated to the prosecution of A.F. Respondent also occasionally met J.C. alone and for swing dance lessons. In addition, J.C. placed Respondent on her MySpace on her Heroes Page, and the defendant’s attorney introduced Respondent’s My Space page into evidence.
As a result of the interactions between Respondent, J.C. and her family, the State’s Attorney, advised Respondent that he was concerned that Respondent’s objectivity had been called into question. The State’s Attorney advised Respondent to have no further outside contact with J.C. or her family, until the A.F. case was concluded, and also removed Respondent from any further involvement in the case.
On January 9, 2010, N.C., sent an e-mail to Respondent advising Respondent that J.C. was 16 years old and that she did not approve of her spending time alone with Respondent.
On January 14, 2010, N.C. sent Respondent an email advising him that even after J.C.’s 17th birthday, N.C. did not want Respondent to be alone with J.C.
On January 16, 2010, J.C. had her 17th birthday. Shortly thereafter, Respondent informed J.C. that since she was 17, she "was of legal age to date anyone."
On January 22, 2010, A.F.’s attorney filed a motion for to adjudicate A.F.’s fitness for trial in the case, requesting a fitness hearing on behalf of his client, who had been involved in a serious car accident and had sustained brain injuries. On February 3, 2010, the Judge presiding entered an order directing a fitness examination.
On February 22, 2010, J.C. and her sister told N. C. that they were going to a high school basketball game. J.C. dropped her sister off at the high school and then drove to Respondent’s apartment. At that time, Respondent kissed J.C. and touched her breasts.
The complaint charges that the above conduct violated several rules of professional conduct. (Mike Frisch)
June 22, 2011
The Illinois Administrator has filed a complaint alleging misconduct on the part of an attorney who, while in law school, had a friend who was dealing marijuana. According to the complaint, they used marijuana and cocaine together. They decided to share a townhouse shortly after he graduated.The complaint alleges that the attorney witnessed numerous drug sales both before and after they were living together.
This became a problem when the attorney graduated, passed the bar and accepted employment as an Lake County Assistant State's Attorney.
The roommate was stopped with 23 pounds of marijuana in the car. He also had the attorney's business card. The police searched their townhouse and found drugs and evidence of distribution.
The attorney allegedly made false statements to police and his superiors denying knowledge of drug distribution. He was granted immunity and agreed to provided evidence against the roommate. He was not required to testify, as the roommate pleaded guilty. (Mike Frisch)
"I Don't Like Details"
In an unpublished opinion, the California State Bar Court Review Department has recommended a two year suspension with all but 90 days stayed of an attorney ho had allowed his office assistant to sign his name to pleadings from July 2005 to February 2007.The misconduct involved a false statement to a court that inquired about the practice.
The attorney denied misconduct but offered this explanation of the practice: "[i]t's just easier for me to do that. I don't like details. I leave the details to her." (Mike Frisch)
The web page of the Virginia State Bar reports the license revocation of a former Arnold & Porter attorney:
On June 10, 2011, the Virginia State Bar Disciplinary Board revoked Joshua Jesse Robert Gessler’s license to practice law. In agreeing to the revocation, Mr. Gessler admitted that he was convicted of multiple felony counts of possession of child pornography, and that he could not defend any VSB charges based on the convictions. Mr. Gessler’s license has been summarily suspended since May 24. He pled guilty and was convicted on March 28 in the Fairfax County Circuit Court.
Abovethelaw described the criminal case in this report. (Mike Frisch)
Coverage A Maybe
The Indiana Supreme Court held that the Bar Plan, which provides professional liability insurance to attorneys, was not entitled to summary judgment in claims brought by two clients who had been abandoned by their (now disbarred) attorney.
While the former attorney had not complied with a condition precedent to coverage, issues of fact as to whether the insurer should be estopped from claiming lack of notice remain. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio issued a warning today about an Internet scam continuing to affect Ohio lawyers.
This latest email scam is similar to previous ones about which the Supreme Court has warned attorneys, according to Amy C. Stone, Assistant Disciplinary Counsel with the Office of Disciplinary Counsel.
“This is how it starts,” Stone said. “The phrase ‘to exert pressure on our delinquent customers in the USA’ in the email is signaling that the company – in this case Malaysia Steel – seeks debt collection services. The attorney ‘collects’ a bogus check from the delinquent customer, deposits it into her IOLTA account, keeps a ridiculously large agreed fee for herself (given the amount of work performed) and then wires the remainder of funds out of the IOLTA to Malaysia Steel. The actual wire recipient (who is not Malaysia Steel) receives the attorney’s ‘good’ IOLTA funds, (which end up being funds from the attorney’s other clients), while the attorney receives a returned bogus collection check which is charged back against her account.”
According to Stone, the banks are aware of the scam and in most of the recent incidents have been able to reverse the wire transfer. However, the attorney is stuck paying the difference in the exchange rate for the currency wired out of and coming back into the IOLTA.
The proposed client is typically an actual Asian company – although the scammers have no connection with the company. Also, sometimes the scammers use real lawyers’ names in the initial e-mail.
Attorneys are advised to exercise caution when approached by unknown persons seeking to enter into financial transactions involving foreign entities. To report a suspected online crime, contact the FBI at www.ic3.gov.
Each Ohio attorney – or the attorney’s employer – that holds the funds of clients that are nominal in amount or held for a short period of time must have an IOLTA. Interest from IOLTAs funds the Ohio Legal Assistance Foundation, which distributes these funds to the state’s legal aid societies to provide free legal aid to the poor.
Takings Clause Applies To Appointed Counsel's Representation
A South Carolina attorney who had been appointed to represent an indigent defendant in a complex criminal case advised the judge that he would stop working on the matter in light of his concern that he would not be paid beyond the statutory maximum for the representation. The judge threatened contempt and the attorney retained counsel. Eventually, the attorney agreed to continue with the case.
He did not get paid over the statutory cap. The trial judge denied excess compensation as a result of the attorney's "unprofessional behavior." He appealed the fee decision.
The South Carolina Supreme Court held that the Takings Clause of the Fifth Amendment of the United States Constitution was implicated but that the trial court did not abuse its discretion in denying fees over the cap:
We...recognize the historic obligation of an attorney to honor court-ordered appointments for the representation of indigents, while also recognizing that the attorney's service constitutes property for Fifth Amendment purposes where there is a right to counsel. We do not view these principles as mutually exclusive. In harmonizing these positions, a trial court should be guided by Bailey's approach to just compensation assessed in light of the public service foundation associated with membership in the legal profession.
The court quoted with approval this statement from the Kansas Supreme Court:
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protection.
A dissent by Justice Pleicones would find an abuse of discretion by the trial judge:
As noted by the majority, the sole basis for denying Appellant an award of fees in excess of the statutory limit was his unprofessional conduct. In my opinion, the trial court abused its discretion in failing to consider, as required by the statute, whether the requested payment in excess of the limit was necessary to provide effective assistance of counsel or whether the services provided were reasonably and necessarily incurred. In my opinion, the trial court should have allowed Appellant to submit evidence as to the reasonableness of his fees, and reviewed it accordingly. Even in light of Appellant's undeniably petulant behavior, I would find the trial court abused its discretion and would remand the matter with instructions to evaluate the necessity for and worth of Appellant's services.
In South Carolina, the statutory cap is $3,500. (Mike Frisch)
June 21, 2011
A Colorado attorney received a stayed suspension for a year and a day as a result of a misdemeanor conviction for possession of a controlled substance. The attorney had previously been disciplined for the following misconduct:
Respondent was refused service at a pub due [to] intoxication. He was offered a non-alcholic beverage, leading to a brief verbal exchange with the bartender. Respondent then was asked to leave the bar, and he did. Respondent came back later looking for his coat at which time he had another brief interaction with the bartender and was again asked to leave, which he did. Respondent walked home and retrieved his .357 revolver and returned to the pub, which was closed for the evening. In an attempt to get the bartender or waitress to notice him, Respondent tapped on the window of the bar. The bartender and waitress ignored the Respondent. Respondent proceeded to fire a bullet into the front door of the pub. Respondent could see the occupants in the bar moving inside and he fired two or three additional shots into the lock of the door. When Respondent could not gain entry, he left the scene. Respondent did not turn himself in, nor did he inquire about potential injuries of the bar staff. After the waitress recognized the Respondent months later in another bar and called the police, the Respondent was arrested. The Respondent was sentenced to and completed probation after he pled guilty to the misdemeanor crimes of carrying a concealed weapon (C.R.S. § 18-12-105), and reckless endangerment (C.R.S. § 18-3-208). As determined by the order for judgment on the pleadings, Respondent committed the felony crimes of illegal discharge of a firearm (C.R.S. §18-12-107.5(1) and menacing with a deadly weapon (C.R.S. §18-3-206). The discipline in the prior case was imposed in 2004. In the present case, the attorney must complete a three-year probation period. (Mike Frisch)
Respondent was refused service at a pub due [to] intoxication. He was offered a non-alcholic beverage, leading to a brief verbal exchange with the bartender. Respondent then was asked to leave the bar, and he did. Respondent came back later looking for his coat at which time he had another brief interaction with the bartender and was again asked to leave, which he did. Respondent walked home and retrieved his .357 revolver and returned to the pub, which was closed for the evening. In an attempt to get the bartender or waitress to notice him, Respondent tapped on the window of the bar. The bartender and waitress ignored the Respondent. Respondent proceeded to fire a bullet into the front door of the pub. Respondent could see the occupants in the bar moving inside and he fired two or three additional shots into the lock of the door. When Respondent could not gain entry, he left the scene.
Respondent did not turn himself in, nor did he inquire about potential injuries of the bar staff. After the waitress recognized the Respondent months later in another bar and called the police, the Respondent was arrested. The Respondent was sentenced to and completed probation after he pled guilty to the misdemeanor crimes of carrying a concealed weapon (C.R.S. § 18-12-105), and reckless endangerment (C.R.S. § 18-3-208). As determined by the order for judgment on the pleadings, Respondent committed the felony crimes of illegal discharge of a firearm (C.R.S. §18-12-107.5(1) and menacing with a deadly weapon (C.R.S. §18-3-206).
The discipline in the prior case was imposed in 2004. In the present case, the attorney must complete a three-year probation period. (Mike Frisch)
Failure To Supervise Charge Rejected
The Utah Supreme Court rejected an attorney's claim that he was denied due process in a bar discipline proceeding and affirmed findings of misconduct involving fees and frivilous litigation. However, the court found insufficient evidence that the attorney failed to properly supervise a non-lawyer because the evidence failed to establish that the non-lawyer engaged in unauthorized practice.
The non-attorney had participated in a mediation and drafted documents, which may be done by lay people in Utah notwithstanding the broad definition of the practice of law. The court found insufficient evidence to conclude that the employee held himself out as an attorney in the mediation. (Mike Frisch)
The Washington Court of Appeals has held that two attorneys had not agreed to resolve their disagreements through arbitration.
The two attorneys had both a personal and professional relationship in which one was an associate in the other's law firm. Both relationships ended and the former associate filed suit for both equitable distribution of property and on employment claims.
The court here agreed with the trial court that the two had not entered into an arbitration agreement. Rather, the parties had agreed only to non-binding arbitration in order to try to settle their dispute. "Non-binding" was given its ordinary meaning by the court in reaching its result. (Mike Frisch)
That Time Of Year: Pay Your Bar Dues
An attorney who worked as bond and underwriting counsel to a national law firm had been publicly reprimanded in Massachusetts for practicing after suspension for non-payment of bar dues. The summary of the case notes that the attorney was frequently out of the office and had moved his residence when he failed to pay his 2007 dues.
When the attorney learned of his administrative suspension in 2010, he cured the problem.
Note that there are some jurisdictions (read: Pennsylvania) that treat this as a serious violation of the Rules of Professional Conduct.
By way of confession, I would note that my own bar (D.C.) doesn't treat practice while under administrative suspension as a big deal. Nonetheless, my check is in the mail. (Mike Frisch)
An Unflattering Description
The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of grand larceny and insurance fraud.
The New York Observer had this report on the criminal trial, with the following description of the attorney:
[He] is a bulging man, with a great squeezed reptilian neck, brillo-pad hair and pockmarks dotting his face. He has a penchant for colorful bow ties. In court last Monday, his tie was orange, his suit tan, with bits of fraying visible along a shoulder seam and a pant leg. Besides occasional barks of laughter, [his] expression was mostly stern; at one point, he stared down a giggling toddler in the back of the courtroom.
The charges related to an insurance payment for the destruction of his home by fire. The court's opinion states that the money was to be held in escrow for reconstruction of the home. (Mike Frisch)