Tuesday, June 28, 2011

One Year Of Monitored Sobriety Required For Louisiana Bar Admission

The Louisiana Supreme Court has denied a petition for bar admission of an attorney who has a history of alcohol and opiate dependency. The order sets forth a bright line for such applicants - a precondition is one full year of sobriety monitored by the Bar's counseling program. Although the applicant has claimed sobriety since 2005, he only recently had entered into a recovery contract with the Bar program.  (Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

In Memoriam

From the web page of the Ohio Supreme Court:

Former Columbiana County Common Pleas Court Judge J. Warren Bettis, who served as Disciplinary Counsel for seven years in the late 1980s and early 90s, died Thursday in Salem. He was 86.

Born in Salineville on Oct. 24, 1924, Judge Bettis was a disabled World War II veteran who served in the Pacific. He was selected as honorary parade marshal of this year’s Salem Memorial Day event.

Retiring Board of Commissioners on Grievances & Discipline Secretary Jonathan Marshall called Judge Bettis a “great American” for going ashore as a young Marine during the invasion of Iwo Jima.

Judge Bettis graduated from The Ohio State University, Xavier University and the Salmon P. Chase College of Law at Northern Kentucky University with a law degree. He served with the Public Utilities Commission of Ohio from 1963 to 1965, as Columbiana County prosecutor from 1965 to 1971, and as common pleas judge from 1971 to 1986.

He served with the Office of Disciplinary Counsel from October 1986 to September 1993 and in September and October 1997.

The Supreme Court of Ohio has the constitutional responsibility to oversee the practice of law in the state and has one of the most comprehensive disciplinary systems of any state in the nation. The Court has established three offices: Office of Disciplinary Counsel, Board of Commissioners on Grievances & Discipline, and the Clients’ Security Fund to exercise independent authority to assist the Court in meeting its responsibility as set forth in Section 5(b), Article IV, of the Ohio Constitution.

The Office of Disciplinary Counsel is authorized by the Supreme Court to investigate allegations and initiate complaints concerning misconduct, mental illness or substance abuse by attorneys and judges under the Ohio Rules of Professional Conduct and the Code of Judicial Conduct and to investigate and prosecute complaints under the rules governing the unauthorized practice of law.

Judge Bettis continued to serve the legal system well into his 80s. He served as a retired assigned judge in the Court of Claims of Ohio from 1993 to 2004, then as a magistrate from 2005 to 2007.

(Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

False Document Increases Sanction

The Indiana Supreme Court imposed a six-month suspension without automatic reinstatement in a matter involving an attorney who had failed to advise a client of her earlier suspension and neglected another client's name-change petition.

The court noted that the attorney is being treated for a previously undiagnosed condition but nonetheless concluded that the joint recommendation for lesser discipline was inappropriate because the attorney had submitted a false document in the disciplinary investigation:

Mental or emotional disability cannot excuse deliberate, deceitful behavior that compromises the integrity of the legal system, including the Commission's investigation of attorney misconduct. Dishonesty in any form and at any stage of the disciplinary process cannot and will not be tolerated. While we are cognizant of the contribution Respondent's untreated depression and anxiety made to her misconduct and we commend the steps Respondent has taken toward recovery, we nevertheless conclude that Respondent must be required to go through the reinstatement process before resuming the practice of law in this state.

(Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

The Classic Sense

An attorney was suspended for one year as a result of conduct described by the North Dakota Supreme Court:

 [The attorney's] course of conduct, including at least two instances of fraudulently affixing a client's name to a document and filing it with a court, failure to properly notify clients of a prior suspension, falsely certifying to this Court compliance with the notification requirements, repeated and flagrant failure to communicate with clients, and mishandling and refusing to return unearned client funds, all suggest a pattern of dishonesty to the courts and flagrant disregard of his clients' welfare. Under these circumstances, a significant suspension is warranted...

The court rejected the attorney's claim that assistant disciplinary counsel had violated a sequestration agreement by talking to witnesses after lunch:

[The attorney] contends he did not receive a fair hearing, because the assistant disciplinary counsel violated a sequestration agreement by communicating with witnesses after a lunch break. [He] provides no details or factual background regarding what occurred, but alleges in broad generalities that the assistant disciplinary counsel provided a "refresher course" for certain witnesses and that the witnesses were influenced and less favorable to [him] because of the communication. The hearing panel in its report acknowledged that the parties had informed the panel there was a sequestration agreement. 

 [He] provided no details regarding the specifics of the parties' agreement, and concedes in his appellate brief "that the sequestration of witnesses was not violated in the classic sense of the rule." Nor does [he] cite any supporting authority suggesting that a sequestration agreement or order precludes an attorney from communicating with witnesses during a break in the proceedings.

(Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Blithe Spirit Doesn't Work For Escrow Accounts

The Delaware Supreme Court found that an attorney had failed to adhere to the terms of a private reprimand and imposed a public reprimand a probation for one year.

The original misconduct involved failure to pay taxes and to ahere to recordkeeping requirements for entrusted funds. Here, the attorney had failed to maintain proper books and records and to supervise a non-lawyer employee. As the Board on Professional Responsibility  found

[T]here was no effort to read [] Rule 1.15; and [the attorney] apparently blithely went on, thinking his books and records contained all necessary information, and therefore his bookkeeping and his computer program were adequate. There was apparently no basis for him to have made that assumption.

The court agreed with the board that the Office of Disciplinary Counsel had not proven that the attorney's statements of compliance with recordkeeping obligations did not amount to misrepresentations. (Mike Frisch) 

 

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Unanimity In Wisconsin

With the usual 4-3 split, the Wisconsin Supreme Court ordered a public reprimand of an attorney for misconduct in a domestic relations matter.

The attorney made a misrepresentation regarding service on the opposing party and admitted that she had "cut corners" in the case. The court majority noted that the misconduct involved a single, contentious matter and that the attorney had an excellent reputation. Nonetheless

Courts are entitled to expect strict compliance with an attorney's fundamental duty to adhere to the truth.  Cutting corners in this instance was not only a disservice to her client but damaged the legal profession as well.  We determine Attorney...should be publicly reprimanded for her professional misconduct.  We conclude she should be required to pay the full costs of this disciplinary proceeding, which were $2,728.53 as of March 22, 2011.  No restitution was sought and none is ordered in this proceeding.

The dissenters would order briefs on discipline and restitution.

Let's keep an eye out for the split the next time the court has a bar discipline case involving domestic violence. (Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Moral Turpitude

An attorney convicted of two misdemeanor offenses was suspended for three months by the Georgia Supreme Court.

The offenses involved a dispute with a title examiner who had been employed by the attorney. The attorney claimed to have a written non-compete agreement with the title examiner. The attorney had not cooperated with law enforcement requests to obtain the agreement.

The State Bar had sought disbarment. The court noted that the offenses did not involve moral turpitude or conduct involving a client. The attorney had emotional problems at the time. (Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Twofer

An Illinois Hearing Board has filed a recommendation in a case in which a lawyer and his lawyer-client were jointly charged with filing a frivolous case.

The client had been employed as an associate attorney at a law firm. While there, he was assigned a medical malpractice matter. The clients in the med mal case executed a retainer agreement with the firm, not any individual attorney. Suit was filed in which the firm was listed as counsel.

The lawyer-client was discharged. The frivolous suit was brought by him against the med mal client. The hearing board found that the suit was brought in an improper effort to pressure the law firm to settle the lawyer-client's employment claim. They also filed a baseless suit against the law firm in federal court.

The hearing board proposes a six-month suspension for the lawyer-client and a nine-month suspension for the lawyer. The board expressed concern that they both don't understand that there was an ethical problem here. (Mike Frisch) 

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, June 26, 2011

Where Pheasants Sleep

The North Dakota Supreme Court has held that double jeopardy prevents a retrial of a DUI case. The court had declared a mistrial after the jury was sworn because:

After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day [the defendant] was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

The court here held that the trial court failed to explore alternatives to the grant of a mistrial. (Mike Frisch)

June 26, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)