July 19, 2011
Avoidant Tendencies Have Medical Basis
An attorney who engaged in misconduct in a series of matters was suspended for nine months by the South Carolina Supreme Court. The court noted evidence that mitigated the sanction:
Dr. Charlotte Murrow Taylor, who holds a Ph.D. in counseling, testified before the Panel on Respondent's behalf. Dr. Taylor has performed extensive testing on Respondent and currently treats him. She opined that Respondent suffers from Asperger's disorder, adult variety, Attention Deficit Disorder, and anxiety disorder. According to Dr. Taylor, stress from receiving a Treacy letter, from a court demanding information, or from an angry client would likely trigger Respondent's avoidant tendencies, causing him to close himself off from subsequent communications. Dr. Taylor testified Asperger's patients are treatable through cognitive behavioral intervention therapy, comprising rote practice of behavioral and social skills. With the aid of medication, Dr. Taylor testified, patients have been known to make great progress under this form of therapy. She testified Respondent is currently taking medication, has been cooperative in his counseling, has reacted positively to treatment, and has made considerable progress since she began treating him.
The attorney must appear before the Committee on Character and Fitness prior to reinstatement. (Mike Frisch)
An Ex Parte Party
The Illinois Administrator has filed a series of related disciplinary complaints centering on an arbitrator with the Illinois Workers' Compensation Commission.
The arbitrator is charged with improper conduct designed to promote her interests in her own workers' compensation claim.
Further, the charges allege that the arbitrator engaged in a series of improper ex parte contacts with counsel in matters before her.
BND.com reports that the arbitrator was suspended in February 2011.
The ABA Journal had this coverage of the charges against one of the attorneys. (Mike Frisch)
July 18, 2011
Sanction Proposed For Craigslist Secretary Ad
An Illinois Hearing Board has recommended a one-year suspension and until further court order in the high proflie case where an attorney advertised for a secretary on Craigslist with special qualities.
The ad read:
Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.
This e-mail followed to an applicant:
As this is posted in the "adult gigs" section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.
If you think you're comfortable so far, please let me know and we can proceed with the process.
The next step is to set up an interview. When are you available to interview? I am free to interview today. Please let me know what your availability is.
Lastly, we've actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you're comfortable with that aspect, because I don't want you to do anything that you're not comfortable with. So since that time, we've decided that as part of the interview process you'll be required to perform for us sexually (i didn't do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it's necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job.
If you're still okay with everything, let me know what you're availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.
The attorney defaulted in the bar proceeding. The hearing board concluded that the conduct reflected poorly on the profession. (Mike Frisch)
Not For Personal Use
The Illinois Administrator has filed a complaint alleging misconduct that resulted in the attorney's guilty plea to charges of marijuana distribution.
The alleged facts:
1. Beginning in or about 2007, in approximately five transactions, Respondent purchased 108 pounds of marijuana from Oskar W. Sheldon.
2. In or before 2007, Sheldon obtained marijuana from outdoor and indoor "grow operations" that he ran jointly with others in northern California and through individuals in the state of Washington, and he sold most of the marijuana to customers, including Respondent, in California, Milwaukee, Wisconsin, and Chicago, Illinois. Sheldon used female couriers traveling on interstate highways to transport 100 to 200 pounds of marijuana at a time, and he then sent the proceeds of the sales back to California or Washington by way of money orders in large denominations shipped in bulk in express mail packages.
3. In October 2007, during the distribution of a one load of marijuana, Sheldon stayed at Respondent's property in Gary, Indiana, and stored several hockey duffel bags, containing a total of about 250 pounds of marijuana, in Respondent's garage. Before Sheldon distributed the marijuana, Respondent allowed Sheldon to keep the bags at Respondent's condominium in downtown Chicago. Respondent purchased 15 pounds of the marijuana contained in the bags. Afterwards, on a couple of occasions, Respondent sold a quantity of marijuana in Chicago for Sheldon.
4. In early November 2007, Respondent and an associate traveled to California to meet with Sheldon and make arrangements for delivery of marijuana to Chicago. At that time, they went to what was called the "chicken ranch," where they picked out quantities of marijuana from one-pound packages stored inside a chicken coop or shed.
He is also charged with failure to notify the Administrator of the conviction. (Mike Frisch)
"Side Practice" Leads To Disbarment
The Maryland Court of Appeals has disbarred a University of Michigan Law graduate who had worked at a number of law firms since his admission to practice. He ended up at a Maryland law firm that had two equity partners.
The misconduct involved his "side practice" that involved taking cases and fees outside of the firm's system. He deposited fees in his personal account (thereby violating the safekkeping property rule) and misappropriated legal fees. The diversion of fees was found to be criminal and dishonest conduct. (Mike Frisch)
Both Sides Now
The New Jersey Supreme Court has issued a public censure for a conflict of interest in a real estate transaction.
The attorney represented the buyer and seller in the transaction without full disclosure and a written waiver of the conflict. He then represented the seller in litigation brought by the buyer.
We all know that that is a no-no.
The Disciplinary Review Board had recommended the censure, finding the conflict but not a charge of conduct prejudicial to the administration of justice. (Mike Frisch)
Meat Samosa Litigation Continues
The New Jersey Appellate Division has reversed in part the grant of summary judgment to a caterer defendant on the following allegations:
Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages. The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)
Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages.
The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)
July 17, 2011
Vermont Supreme Court Has A Sense Of Romance
The Vermont Supreme Court has imposed a public reprimand of an attorney who engaged in deceit in connection with her firm's representation of a divorce client.
The court set forth the facts:
Respondent was admitted to practice law in Vermont in 2001 and was hired to work for a Burlington law firm in January 2006. In November 2007, a client hired the firm to represent her in a divorce from her then-husband. In early February 2008, before becoming aware of her firm’s representation of the client, respondent met the client’s husband and began dating him. On or about February 19, 2008, respondent saw her firm’s client list and realized that she was dating the husband of her firm’s client and that the firm was representing the client in a divorce proceeding against the husband. Within several hours of discovering this information, respondent informed the firm’s senior attorney that she had recently become romantically involved with the husband. Respondent requested that the firm create a “conflict wall,” which she believed would prevent her from participating in any representation of the client and allow her to continue dating the husband.
The day after meeting with respondent to discuss her conflict, the senior attorney left respondent a message indicating that respondent’s employment would be terminated if she refused to end her relationship with the husband. The next day, respondent told the senior attorney that she had terminated the relationship. In reliance on this representation, the senior attorney disclosed the situation to the client. After consulting with another lawyer, and relying on the senior attorney’s representation that respondent had terminated the relationship with her husband, the client decided to continue using the firm to represent her in the divorce.
However, respondent did not entirely cease contact with the husband. On February 26, 2008, she ordered a gift of chocolates to be delivered to the husband. At some point between February 21 and March 8, 2008, respondent and her children spent time with the husband and his children at a local health club pool. Respondent and the husband were also together on other occasions during this period.
On March 8, 2008, the client left the state to seek treatment for her health. The client and her husband had previously negotiated an agreement stating that the husband could move into the marital home to care for the children in the client’s absence. On the same day that the client left for treatment, respondent and her children joined the husband and his children at the marital home and spent the night. Members of the client’s family learned about respondent’s stay and contacted the senior attorney about it on March 11, 2008.
The senior attorney confronted respondent about her overnight stay with the husband, and respondent admitted to it and admitted that her relationship with the husband had resumed. The senior attorney immediately terminated respondent’s employment with the firm. Respondent and her children continued to live with the husband for several months after the termination of her employment.
The conduct violated Rule 8.4(c) in the attorney's concealing of the relationship from the firm.
The court majority discussed the application of the ABA standards on bar sanctions but concluded:
The Panel found that respondent’s behavior was selfish, and it was. But it was mitigated, to be sure, by the fact that she acted not for greed or glory, nor for malice or lucre, but apparently for romantic reasons. The harm to the firm and the client, however, remained the same.
A hearing board had imposed a six-month suspension. Bar Counsel sought disbarment before the court.
Justice Dooley would impose the six-month suspension, as the attorney had intentionally created a conflict for the firm:
The misconduct in this case involved deceit, and the impropriety of the behavior was obvious. After definitively being told that she could not maintain both her position at the firm and her relationship with the opponent of the firm’s divorce client, respondent chose to continue or restart relations with the opponent-husband, while failing to disclose the ongoing relationship and the conflict of interest it created. The senior attorney relied upon respondent’s promise to terminate the relationship with the husband and continued to employ respondent and to represent the client, unaware of the renewed conflict of interest. Respondent understood the conflict of interest that was created by her conduct as shown by her misguided request for a “conflict wall.” As the Panel found, and the majority recognized, respondent’s actions damaged not only the client, but also damaged the firm and the senior attorney’s relationship with the client. Respondent’s behavior illustrates a serious lack of judgment and lack of moral character that reflects adversely on her fitness to practice law.
Chief Justice Reiber joined the dissent. (Mike Frisch)
Cash Handled Improperly, Attorney Indefinitely Suspended
An attorney who had received $1,300 in cash from a client in a criminal matter but had failed to deposit the money or otherwise account for its disposition was indefinitely suspended by the Kansas Supreme Court. The cash was intended to be used for restitution.
The attorney's explanation to the Office of Disciplinary Counsel:
'Occasionally, I will place clients' monies—be that filing fees or diversion fees, or other such fees—into an envelope in their file, rather than to deposit, immediately, those sums into my trust account. This would be one of those instances. (Emphasis added.)'
"On April 14, 2010, the Respondent responded to a letter from the Disciplinary Administrator's office. In the letter, rather than explain where the $1,300.00 went, the Respondent quoted the language...above. The Respondent also stated:
'The investigator seemed skeptical of such an answer at the time; and perhaps he has shared that skepticism with you. In essence, you have a stipulation to the fact that the monies did not ever make it to my trust account at the bank; and you also have the fact that Mr. Corkins's account was provided these monies on the day that Judge Asher directed his inquiry to me. The appearance of impropriety, here, would seem to sustain the filing of your complaint on the basis of what you know, already. Can you elaborate further as to the reason for your communication to me?
'If you find me too evasive, or obtuse, then it is apparent that I need to seek out my attorney to advise me in this matter, sooner, rather than later; and I do respectfully request that I be given time to counsel at length with a disciplinary-complaints experienced attorney who can advise me as to my rights and my options in this matter at this stage of the proceeding. In fact, that attorney might well be able to negotiate and/or give professional input prior to the ultimate filing of the complaint. That is to say in quite a different and clumsy way: He might help write the complaint. Does your office ever approach matters in that fashion, say, via a stipulated complaint? I believe that we can see the potential advantages of such an approach, don't you?'
The court concluded that the misconduct was not an isolated incident (citing the first explanation) and was concerned that the attorney did not appreciate the seriousness of the misconduct.
The attorney made the payment on the client's behalf after a delay. (Mike Frisch)