July 1, 2011
Under Color Of Law
An attorney convicted of sexually assaulting two women under color of law was permanently disbarred by the Louisiana Supreme Court. He was serving as Deputy City Attorney for the City of New Orleans at the time of the crimes.
The court rejected his claim that the conviction was not a final one for purposes of bar discipline, holding that the possibility of habeas relief did not affect finality.
The Free Republic reports that he is serving a life sentence in prison. (Mike Frisch)
A judge who was randomly selected to hear a divorce case in which he was close personal friends with the parties has been censured by the Louisiana Supreme Court. The judge failed to recuse himself notwithstanding the close relationships.
The judge continued to socialize and communicate with the husband during the proceedings. The conduct was witnessed by several prominent attorneys who were aware of the situation. The judge also had entered an improper order in the matter that deprived the wife of custody for a period of time. (Mike Frisch)
Only In California--Beyond Atkins And Rin Tin Tin
More from this month's California Bar Journal:
[An attorney] was suspended for 18 months, stayed, placed on three years of probation with a 30-day actual suspension and he was ordered to take the MPRE within one year. The order took effect May 14, 2011.
[the attorney] successfully completed the Alternative Discipline Program after stipulating to misconduct in two matters. He demonstrated a connection between his mental health issues and his misconduct.
He stipulated that in one matter he breached his duty of confidentiality and asked a client to withdraw his complaint with the State Bar as a condition for settling his case, and in the second matter he failed to avoid representing adverse interests.
[The attorney] represented Douglas Markham, who wrote a book called “Beyond Atkins.” As the book gained national prominence, [he] did more work and agreed to be paid with 10 percent of the revenue generated by his client’s health project, less printing costs for the book. When Markham discovered he had not properly credited other authors whose material he included in the book, [the attorney] said he would correct the oversight in the next printing. [The attorney] contends the oversight was not inadvertent and could have been corrected through footnotes.
Markham fired [the attorney], who, the next day, emailed 16 business associates indicating that he had terminated the relationship for reasons he could not disclose. He said he did not want to be associated with Markham or his book and referred the email recipients to the material that had not been properly credited. However, Markham had not waived attorney-client confidentiality and [his] actions caused him embarrassment.
Markham sued [the attorney] for malpractice, breach of contract and interference with contract, a complaint that eventually was settled without any monetary payment. However, [the attorney] required that as part of the settlement, Markham withdraw his complaint to the State Bar.
In the other matter, [the attorney] represented a Hollywood producer who planned to produce a documentary about Rin Tin Tin, and at the same time represented the individuals who hired the producer. Although he acknowledged in the fee agreement that conflicts might develop, he didn’t advise his clients to seek independent legal advice.
He eventually represented the producer in a lawsuit filed against one of the individuals who had originally hired the producer. [He] eventually recommended that the producer hire a different lawyer.
[He] cooperated with the bar’s investigation and had no discipline record since his 1983 admission to the bar.
Neither A Doctor Or Lawyer Be
From the July 2011 California Bar Journal:
[An attorney]was disbarred May 13, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
In a default proceeding, the State Bar Court found that [the attorney] violated an earlier rule 9.20 order by failing to submit to the court an affidavit stating that he notified his clients, opposing counsel and other interested parties of his suspension. Although he filed a declaration of compliance three months late, failure to comply with the rule is grounds for disbarment.
The underlying discipline, imposed in 2008, followed misdemeanor convictions for trespassing and fleeing from a park ranger. The bar court’s review department found that neither conviction involved moral turpitude and reduced a disbarment recommendation to a suspension.
[The attorney], who is both a lawyer and a doctor, was disciplined again in 2010 for three acts of misconduct — he committed acts of moral turpitude by make false and misleading statements on applications for hospital privileges, did not notify the State Bar of disciplinary action taken against him by the medical board, and he failed to uphold the law. His medical license was revoked in 1999 and he was subsequently employed by a law firm, where he represented himself as a doctor, without notifying his employer that his license had been revoked.
In recommending disbarment, Judge Richard Honn wrote that [the attorney] “has demonstrated an unwillingness to comply with the professional obligations and rules of court imposed on California attorneys although he has been given opportunities to do so."
Solitude Is Hard To Find
The Wyoming Supreme Court has held that an attorney's representation of a subdivision violated conflict-of-interest rules but that the issue had not been timely raised.
The person (defendant) who claimed the conflict had retained an attorney to assist in a dispute with the Solitude subdivision located in Teton County over the interpretation of a protective covenant. She later complained about the attorney's bill to the Bar.
When the subdivision brought a claim against defendant, it retained her former attorney's partner. The litigation involved the covenant's application to defendant's erected screens, brush, log piles and fencing.
The court here held that the matters involved the same protective covenants and were thus substantially-related matters. The partner should have been disqualified by operation of the imputed conflict rule.
The court did not approve of the behavior of the attorneys for either side:
This case is an example of how resolution of a simple dispute can become
unduly complicated, expensive and delayed by the attorneys’ conduct. The record
on appeal discloses endless and unseemly jousting between the attorneys about
virtually every aspect of the case. Discovery requests that should have been
responded to quickly were unnecessarily opposed by both sides for every little
reason imaginable. It took over two years to reach summary judgment, even
though there was no real dispute about the facts of the alleged covenant violations,
because of the constant bickering between the attorneys. We can only imagine the
frustration experienced by the district court, including the two different judges
who sat on this case.
The court remanded the case on the issue of attorney's fees, as the defendant should not have to pay the other side's fees for matters relating to the conflict issue. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended that a former prosecutor convicted in a ticket-fixing scheme be permanently disbarred .
This report from WBRZ.com indicates that the attorney pleaded guilty in federal court to accepting money in excahange for dismissing tickets. He did so with an undercover FBI agent. (Mike Frisch)
CV Exhibit Not Sealed
A former assistant county prosecutor who presently serves as an Associate Professor at a county college has been suspended for one year and until further court order by the New Jersey Supreme Court.The sanction was an agreed one that had been approved by the Disciplinary Review Board.
The misconduct involved the attorney's dealings with the IRS. She had submitted a document concerning a lien that was not authentic, but reflected what she believed to be the true state of affairs.
Criminal charges were filed but did not result in a conviction. Rather, the criminal case was resolved through pretrial diversion.
The attorney's position as a prosecutor was considered as a factor in aggravation.
The DRB denied a motion to seal an exhibit--the attorney 's CV. (Mike Frisch)
Employee "Bonuses" Violate Fee-Sharing Prohibition
The New York Appellate Division for the Second Judicial Department has imposed a suspension of one year and until further court order as reciprocal discipline for a New Jersey suspension.
The court described the violations:
The New Jersey order reflects that the respondent participated in prohibited fee-sharing, whereby nonlawyer employees of his now-defunct law firm received shares of legal fees, classified as "bonuses," when they referred cases to the firm. In addition, the respondent gave less-than-candid testimony about the fee-sharing at an administrative hearing before the New Jersey Department of Labor, Division of Wage and Hour Compliance, which created a "misapprehension" by the tribunal as to the payment of said "bonuses." The respondent failed to take action to correct the tribunal's "misapprehension." Similar "dissembling" was noted in connection with the respondent's disciplinary proceeding. Finally, the respondent failed to exercise appropriate oversight over firm finances, resulting in the director of administration, and other staff, misappropriating more than two million dollars of fiduciary funds.
Interim Suspension For Stalking Conviction
An attorney who was convicted of stalking and sentenced to six month in a county jail has been suspended on an interim basis by the Oklahoma Supreme Court. If the conviction is reversed, the disciplinary proceedings will be dismissed. If he wishes to resign from the Oklahoma Bar, he may do so.
The attorney may set aside the interim suspension on a showing of good cause. (Mike Frisch)
An inexperienced attorney who had added information to the CV of an expert witness that he proposed to call in a DUI case did not engage in conduct involving dishonesty but did violate Rule 4.1, according to a recent decision of the Vermont Professional Conduct Board. The addition indicated that the expert had previously been accepted in a Vermont court. The attorney thought she had but did not make sure.
The expert was not called at the trial. The attorney did not intend to deceive the prosecutor.
The board imposed an admonition, which protects the identity of the attorney:
There is no evidence presented that there was any injury in this case. Respondent had been admitted for about two years at the time of the misconduct. We hope that this was a misguided action by a relatively inexperienced attorney and that it will not be repeated.
Not Prejudicial To The Administration Of Justice
An attorney who released a partial transcript of a juvenile hearing did not engage in conduct prejudicial to the administration of justice, according to a decision issued yesterday by the Oregon Supreme Court. A hearing panel had found the ethical violation "[w]ith little discussion."
Although the judge had been "concerned" about the conduct, the court found that the behavior did not impact on the decision-making process in the juvenile case. The press had been allowed to attend the hearing. Even if the release was improper, it did not have a substantial impact on the proceeding, which is an element of the violation:
The Bar appears...to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial."
June 30, 2011
HIV Misdiagnosis Actionable
The District of Columbia Court of Appeals, sitting en banc, has held that a plaintiff who was told that he was HIV positive when he in fact was not, and suffered severe depression during the five years he dealt with the misdiagnosis, has a cause of action for the negligent infliction of emotional distress against the doctor and clinic.
The court expanded the "zone of physical danger" concept generally applied to tort actions:
...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence. We conclude this is such a case... The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well. The decision was unanimous. (Mike Frisch)
...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence.
We conclude this is such a case...
The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well.
The decision was unanimous. (Mike Frisch)
Candy And A Letter
The Indiana Supreme Court has imposed a 30 day suspension for criminal conduct described in the order:
In November 2009, Respondent went to a jail to visit a client awaiting trial for the murder of his wife. While there, Respondent gave the client candy and written material that had not been authorized by the jail authorities. The written material was a letter from the client's sister pertaining to conversations between the sister and a witness for the state. Respondent was charged with two counts of trafficking with an inmate, which were resolved by a pre-trial division agreement under which Respondent admitted the allegations.
June 29, 2011
A Bar Dues Rant
As a member of the District of Columbia Bar, I have the honor and privilege of paying annual dues. This year, the ticket costs $237.
As a former Bar employee, I probably take a closer look at the annual budget than your average dues paying member. My cursory review suggests that this linked announcement is about all that a member can readily find out about how the Bar spends our annual dues.
A couple of things jump out at me.
Roughly one-third of District of Columbia Bar revenues go to fund the disciplinary system. This year, the Board on Professional Responsibility ("BPR") line item is a hair over $7 million out of a total of a hair over $22 million. The allocation covers the costs of Bar Counsel (the prosecutors) and the BPR office, which administers a system that is supposed to largely depend on the efforts of unpaid volunteers.
I took at look at the BPR budget when I wrote my analysis of the D.C. attorney discipline system. The BPR allocation rose from $2.23 million in 1994-95 to $4.69 million in 2004-05. Now it's gone up over $2.3 million more.
Are we getting bang for our buck?
I have not studied the issue, but my sense is that the workload of the BPR had actually decreased in recent years as the Court of Appeals by rule amendment has largely removed the (previously heavy) load of reciprocal discipline matters from BPR review. As for Bar Counsel, it certainly appears that there has not been any increase in prosecutions. To the contrary, I suspect (but have not confirmed through study) that the number of petitions (formal charges) is in decline.
The effort to find an answer to the above question brings me to my second point. The Bar must be far more transparent than it is at present about how it spends our dues money. I think that members are entitled to such transparency. In the digital world, that means providing a far more detailed budget online than the linked summary. Then, we could get answers about potential waste of mandatory dues.
It is noteworthy that the Bars are recession-proof. If you want to play, you have to pay. This fact should in no manner excuse the Bars (not just D.C.) from being accountable for how dues money is spent. At a minimum, a readily available (i.e. online) detailed budget should be the right of both bar members and the public they serve. (Mike Frisch)
The Maryland Court of Appeals has held that a trial court does not have the discretion to permit a state's attorney to ask repetitive, prejudicial and harassing questions of a criminal defendant.
The defendant was charged with attempted murder. He was asked on cross-examination a series of ten questions about the lyrics of a rap song he had penned. Each question repeated a line from the song and then "Your lyrics?"
The court concluded that the questions served no purpose other than to suggest a propensity for violence on the part of the defendant. (Mike Frisch)
Courts Don't Let Friends Drive Drunk
A person who had lawfully consumed alcoholic beverages (two tall cans of beer) at her sister's house decided that she was too intoxicated to drive home. She asked her brother's friend for a ride. He agreed.
En route, the car was stopped because a license plate light was out. The driver did not have a valid license. The woman admitted to the police that she was too intoxicated to drive herself home.
She was charged and convicted of public intoxication. On appeal, she pressed a public policy defense that her conduct had been responsible and should not be considered criminal. The Indiana Supreme Court rejected the argument and affirmed the conviction.
Justice Rucker dissented and would overrule a prior case that held the inside of a car to be a public place for purposes of the public intoxication statute. He agreed with the appellant that she should not be convicted for doing the responsible thing. (Mike Frisch)
A single justice of the Massachusetts Supreme Judicial Court has ordered a public reprimand of an attorney based on a 48 month suspension from practice before the Internal Revenue Service. The misconduct involved failure to file income tax returns.
The issue of reciprocal discipline for a suspension from practice before the IRS was raised by the attorney. The court held that the IRS is a "federal administrative body or agency" and thus any suspension implicates the Massachusetts rule governing reciprocal discipline.
Bar Counsel had sought a four-month suspension.
The court noted that the attorney had not been charged or convicted of any criminal offense, which weighed heavily in his favor. On the aggravation side, the attorney's conduct was willful. Further, he had 15 years experience as a tax lawyer.
As a matter of advanced disciplinary procedure, I would note that courts tend to have a less inclusive definition of a "disciplining court" for purposes of reciprocal discipline than the Massachusetts version relied upon by the court here.
For instance, in the District of Columbia, reciprocal discipline can only be imposed based on the order of a tribunal as defined below
As used in this section,
(1) “state” shall mean any state, territory, or possession of the United States.
(2) “disciplining court” shall mean (a) any court of the United States as defined in Title 28, Section 451 of the United States Code; (b) the highest court of any state; and (c) any other agency, commission, or tribunal, however denominated, that is authorized to impose discipline effective throughout a state.
D.C. App. R. XI, section 11(a).
Under such a rule, I believe that reciprocal (i.e. summary) discipline could not be imposed as a result of an IRS suspension. (Mike Frisch)
June 28, 2011
Attorney Called For Traveling Violation
A public reprimand was imposed by the Oklahoma Supreme Court on an attorney who had submitted false travel claims to his law firm:
In February 2010, the Respondent submitted travel claims to his law firm in the amount of $1,722.74 and a request for a travel advance in the amount of $650. Both these amounts were to be billed to a client. At the time, Respondent was a partner at the firm of Sonnenschein, Nath and Rosenthall in their Kansas City, Missouri office. When attorneys at the firm discovered discrepancies with the travel claims, they reviewed them with the Respondent. Respondent admitted falsifying the claims and was terminated by the firm.
Respondent is licensed both by the states of Missouri and Texas. Disciplinary proceedings initiated first with the Missouri Bar Association when Respondent self-reported his actions. The Missouri Office of Chief Disciplinary Counsel deemed public reprimand to be the appropriate discipline. The Texas Bar Association also issued a public reprimand in response to Respondent's actions in this matter.
The attorney had self-reported the misconduct and made restitution. (Mike Frisch)
Spousal Abuse Draws Lengthy Suspension
The New York Appellate Division for the First Judicial Department imposed a 36 month suspension of an attorney convicted in Virginia on charges of domestic violence.
The court cited mitigating factors:
In its report dated June 14, 2010, the Hearing Panel noted the following as factors tending to mitigate respondent's culpability: (1) respondent's long and exemplary work record and attestation to his good character from colleagues; (2) the connection of respondent's misconduct to a dysfunctional marital relationship that is now coming to an end through divorce; (3) the initiation of the altercation by respondent's wife; (4) the causal connection between respondent's abusive conduct and his intermittent explosive syndrome, a recognized psychological condition for which he is being treated, and was being treated before the incident; (5) the confinement of respondent's physical aggression to his personal life; and (6) the substantial criminal sanctions, including a period of imprisonment, that have already been imposed on respondent.
We find, in the exercise of our discretion, that respondent should be suspended for 36 months in view of the gravity of the offense of domestic violence and his prior history of similar misconduct. While respondent may not have engaged in physical aggression in his professional life, it cannot be overemphasized that his abuse of his spouse reflects adversely on his fitness to practice law.
The attorney had served as in-house counsel to a telecommunications company. (Mike Frisch)
Superior Intellect Does Not Assure Competence
A Colorado Hearing Board has ordered a one year and a day suspension of an attorney for misconduct in the course of representing a criminal defendant. The board rejected the attorney's claim that he had complied with a limited representation agreement and provided competent legal services. One area of concern:
A final basis for concern is Respondent’s apparent view that he satisfies the responsibility of providing zealous representation because he can “outthink” his opposing counsel. As discussed above, although Respondent attended several hearings and conducted interviews on behalf of Robinson, there is little other evidence of legal work that Respondent performed on Robinson’s behalf, despite being paid $3,300.00. While Respondent may have a superior intellect, that alone does not assure compliance with Colo. RPC 1.1. Another concern:
A final basis for concern is Respondent’s apparent view that he satisfies the responsibility of providing zealous representation because he can “outthink” his opposing counsel. As discussed above, although Respondent attended several hearings and conducted interviews on behalf of Robinson, there is little other evidence of legal work that Respondent performed on Robinson’s behalf, despite being paid $3,300.00. While Respondent may have a superior intellect, that alone does not assure compliance with Colo. RPC 1.1.
At the hearing, Respondent’s demeanor was erratic, while his testimony and arguments often were difficult to follow and at times were incoherent. The Hearing Board recognizes that the stress of defending oneself in a disciplinary hearing could contribute to such difficulties. Nevertheless, we are concerned that if Respondent continues to practice law, an underlying physical or mental condition could affect the quality of [his] representation of future clients.
At the hearing, Respondent’s demeanor was erratic, while his testimony and arguments often were difficult to follow and at times were incoherent. The Hearing Board recognizes that the stress of defending oneself in a disciplinary hearing could contribute to such difficulties. Nevertheless, we are concerned that if Respondent continues to practice law, an underlying physical or mental condition could affect the quality of [his] representation of future clients.The attorney thus must submit to an independent medical exam for reinstatement. (Mike Frisch)