January 22, 2011
Pride Before The Fall
An Arizona Hearing Officer (the always insightful H. Jeffrey Coker) has recommended a censure and probation of a young criminal defense who had run afoul of disciplinary authorities early in his career. The attorney was admitted in 2000.
Hearing Officer Coker found that the attorney engaged in misconduct in one of three charged matters. Each involved an appointment from the Maricopa Office of Court Appointed Counsel ("OCAC)"
In the Moore case, no ethical misconduct was found in the representation although an innocent client had been convicted of armed robbery.
The attorney learned information about an associate of his client known as "Crazy Dave." He did not pursue the information out of concern that it would lead to the discovery of other crimes committed by Moore and Crazy Dave together. Moore was convicted but eventually secured relief for ineffective assistance of counsel when it was proven that Crazy Dave had done the crime. The hearing officer considered the question a close one but found insufficent evidence of an ethical violation.
Most interesting is the sanction discussion:
The impression that the Respondent conveyed during the course of the three-day hearing in this matter is that of a young man who started out his practice in the year 2000 with an oversized ego and rampant ambition to make a name for himself trying cases. Once [he] got onto the conflict attorney appointment list he apparently never said no to a case and took on far more than he could legitimately handle. Both his ego and his pride dictated that his job was to take everything that OCAC sent him, then focusing on the outcome rather than the process of how he got there.
This attitude and practice eventually caught up with him in 2004 and 2005, and the hard reality of client relations and the process of the practice of law caused him to step back and take a look at himself. According to the Respondent as well as those attorneys with whom he practices, he has implemented changes necessary to avoid problems in the future. However, that is not the entire story...
[Discussion of Moore case, which took place in 2008]
...What concerns this Hearing Officer is the degree to which Respondent appreciates that the practice of law is not just about how many cases he can win. The practice of law is a service profession where we serve not only our clients, but a higher cause of justice...The fear that this Hearing Officer has is that, unless [he] realizes that his priority must be that he serves his profession and his client's needs first and foremost and that his statistics count for little, he will not make the necessary shift in his priorities and will come back to the disciplinary process in the future. It is hoped that Respondent has matured enough to make these changes.
The attorney had twice been placed on diversion for ethical issues similar to those presented here. The lapses took place in the 2004-05 period. (Mike Frisch)
January 21, 2011
Case Of The Week
The Louisiana Supreme Court has ordered the permanent disbarment of an attorney who, among other things, brought a sixteen year old "assistant" into the Bunkie Detention Center to perform oral sex on two incarcerated clients while the attorney captured the encounter on videotape. The reason? He said he needed semen samples to overturn their convictions and achieve their immediate release (from jail).
He also was recorded soliciting inappropriate sexual contact with inmates at the Rapides Parish Detention Center.
In another matter, the attorney told a criminal client that "he would need to see [the client] in his boxer shorts." The client complied but could not follow the attorney's futher instruction to achieve an erection. The attorney tried to help by showing an explicit video and by manual stimulation, but to no avail.
In still another matter, he grabbed the penis of a post-conviction client and refused to continue work on the case after his advances were rebuffed.
The attorney made sexual advances to other clients and engaged in the unauthorized practice of law. (Mike Frisch)
A former Ernst & Young executive was disbarred by the New York Appellate Division for the First Judicial Department as a result of a criminal conviction. The court describes the offenses:
The charges arose out of a scheme by respondent, other attorneys and an accountant, in which they defrauded the Internal Revenue Service by designing and marketing tax shelters used by wealthy individuals to defer, reduce or eliminate tax liabilities on annual income that generally exceeded $10 or $20 million. On January 22, 2010, respondent was sentenced to a prison term of twenty-eight (28) months, two years of supervised release and fined $100,000.
Details here from Bloomberg Business Week. (Mike Frisch)
Multiple Acts Of Dishonesty Draw Suspension, Fitness Requirement
In contrast to yesterday's decision from Wisconsin comes a case from the Pennsylvania Supreme Court imposing a year and a day suspension as proposed by its Disciplinary Board for multiple dishonest acts. The board had rejected a censure and probation that was recommended by a hearing committee.
The attorney was retained in a bankruptcy matter. He received a payment for both a portion of his fees and the filing fee. He did not pay the filing fee and did not escrow the payments. When he filed the case, he misrepresented that the client could not afford to pay the filing fee. He misled the client and the disciplinary process.
According to the board:
Had this matter not involved acts of dishonesty by Respondent, we would most likely not consider a suspension of this length. Respondent engaged in dishonesty to his client and the Court, and demonstrated an inability to be truthful to Disciplinary Counsel and the Hearing Committee. Respondent's lack of credibility is very troubling. Dishonesty cannot be excused, nor remedied by public censure or probation.
In mitigation, the attorney was inexperienced and had made restitution to the client. (Mike Frisch)
January 20, 2011
Court Orders Civility Assessment, Suspension
The New Jersey Supreme Court imposed a three-month suspension with an assesment by the Bergen County Committee on Professionalism "for development of a program to assist [the attorney] in developing and maintaining courtesy and civility in his professional dealings with others..."
The attorney represented the defendant in a protracted municipal court trial. He called the prosecutor, among other things, an idiot and "forcefully bumped into an investigating officer, while walking past her." He also had the trial repeatedly postponed, once by claiming there was an accident on the New Jersey Turnpike. There was no such accident at the time. He also raised his voice to a bar ethics committee investigator "and was extremely uncooperative and belligerent."
The Disciplinary Review Board rejected the attorney's motion to set aside a default entered in the matter. The attorney had two previous reprimands. (Mike Frisch)
Negligence Allegations Sufficient To Survive Motion To Dismisss
The Mississippi Supreme Court has held that a legal malpractice suit was improperly dismissed. The plaintiff is a nursing home that had been the subject of complaints. The nursing home's insurer retained counsel to defend the claims. The nursing home also had an insurance policy covering excess amounts beyond the obligations of the primary insurer.
The underlying cases settled for an amount in excess of the primary insurer's policy limits. The nursing home then sued the law firm, claiming that the firm's negligence was the cause of the settlement that required payment from the excess insurance.
The court here, resolving a question of first impression, found the allegations of negligence sufficient to defeat the motion to dismiss. The surviving claim is one of equitable subrogation, not legal malpractice. (Mike Frisch)
Stress Does Not Cause Dishonesty
The Wisconsin Supreme Court has imposed a four-month suspension of an attorney for a number of ethical violations that included overbilling the state public defender in numerous matters and falsely telling a judge in a litigated matter that he had been reinstated from an administrative suspension. He had arranged to complete required CLE but had not done so.
The attorney sought a sixty-day suspension; the Bar asked for six months, which would have required the attorney to petition for reinstatement. The court followed the recommendation of the referee.
As to sanction:
Attorney['s] appellate brief provides context for the misconduct. He explains that during 2007, when he committed the bulk of the rule violations, two things happened: (1) his assignment as a receiver for a company in northern Wisconsin ballooned from a two-day-per-week obligation to more than full-time; and (2) his partnership with another lawyer abruptly ended when she cleaned out their offices overnight, leaving him to find new office space and reorganize his cases. Basically, he states that he "made a serious error: he tried to do too much; he tried to maintain his commitments to his Public Defender clients and to his private clients." Attorney...provides positive testimonials from several clients and argues that a 60-day sanction will permit him to "still maintain his practice" while a "penalty of four months would make it virtually impossible for him to do so without essentially starting his practice over."
The OLR, however, responds that stress is not a mitigating factor in imposing discipline. Indeed, the OLR asserts that the only mitigating factor as to sanction is the absence of any prior disciplinary record. OLR emphasizes the pattern of deceit reflected in Attorney['s] decisions and urges a six-month suspension.
We consider appropriate discipline de novo but we are guided by the referee's thoughtful consideration and recommendations. The referee stated:
I am deeply troubled by [attorney's] willingness to lie in furtherance of his own personal goals. He willingly misled a sitting circuit court judge about whether or not he had a valid law license. He repeatedly erred in his systematic billing practices to SPD to the point where he often billed for more than 15 hours in a day. He lied on his petition for reinstatement when he asserted he had not practiced law without a license during his suspension. An omission is as much of a lie as a false statement. [His] failure to notify other judges of his suspension and his failure to notify his clients of his suspension are lies too.
The referee was thus of the opinion that Attorney...had shown a repeated willingness to lie to satisfy his own interests or what he perceived as the prevailing interest. She states:
The Rules of Professional Conduct, without equivocation, prohibit lying. Our system relies upon the honesty of its participants. It really [cannot] function otherwise. [The attorney] has wholly failed in these matters to follow that basic rule. It is clear that [he] was under considerable stress after the demise of his law firm partnership and the increased stress associated with a particularly complicated and difficult case. But, stress alone should not cause an attorney to be repeatedly untruthful.
In light of the record before us and the referee's observations, we agree with the referee and the OLR that the 60-day suspension sought by Attorney...is simply inadequate, particularly in light of the unacceptable pattern of lying and deceit committed by Attorney...
The OLR may have a fair point that four months with automatic reinstatement is "simply inadequate." (Mike Frisch)
January 19, 2011
The Nanny's Tale
A recent Illinois Hearing Board recommendation proposes a five-month suspension in a 66 page report that tells a complex tale of an attorney's involvement with a family of clients.
The attorney, admitted in 1966, represented a husband and wife in family business matters for a period of many years. He became of family friend. He watched their son grow up and marry. He then represented the son in two divorce actions. The first resulted in reconciliation; the second did not.
The son's wife claimed (and the Administrator charged) a conflict of interest in undertaking the son's divorce matters. The hearing board rejected the charges, finding that any representation of the son's wife by the attorney was limited and did not involve her providing him with confidential information. No substantial relationship with the divorce; thus no problem.
Notably (in the hearing board's view), the son's wife did not complain to her own counsel about the conflict during the divorce litigation.
The problems lay elsewhere. The son was engaged in an affair with the children's nanny (yes, there were six kids and a nanny). The nanny was married. The son impregnated her. The attorney undertook to represent the nanny in her divorce/support action. A protection order was entered in the case. While he sent an office mate to handle the initial hearing, he clearly represented the nanny.
The pleadings in the nanny's case alleged that the child had been fathered by the nanny's husband. The attorney believed the allegation was accurate. Within a couple of months, he learned the truth.
When a paternity test fingered the son, the attorney failed to correct the false allegations regarding the child's paternity. The hearing board foud that the attorney's disclosure of the truth to the lawyer for the nanny's husband and return of support payments did not constitute a "reasonable remedial measure" to correct the false statement to the tribunal. The various judges who handled the matters certainly felt so and one complained to the ARDC.
The final chapter involved the attorney's representation of the son in an action to establish parentage of the child. The nanny was pro se.
The various proceedings in which the attorney was involved on behalf of the son were dubbed a "three ring circus."
The attorney had a record of prior discipline. He was suspended in 1991 for failure to submit income tax returns and guaranteeing payment to (and failing to pay) a complaining witness
The hearing board does not shower the attorney with compliments with respect to the potential conflicts, saying that he should not have walked the ethical "tightrope" of the representations given his prior brush with discipline.
If you don't believe me, read it yourself. (Mike Frisch)
The Wisconsin Supreme Court has imposed a suspension of four years and eight months on an attorney who was found to have engaged in a sexual relationship with a particularly vulnerable client. The court described the client:
The misconduct at issue in this case involves Attorney...'s long-time representation of a female client with a very extensive history of and treatment for various psychiatric disorders and alcohol dependency. The client's diagnoses include bipolar I disorder, post-traumatic stress disorder, eating disorders, and severe personality disorder with histrionic, borderline, anti-social, and passive-aggressive features.
The client has been hospitalized and placed at various inpatient mental health and substance abuse facilities on numerous occasions since 1999. She had sexual relations with a man who worked at one of her treatment centers. That man was subsequently fired, criminally prosecuted, and jailed.
The court found the conduct more egregious than a prior case:
Attorney...'s conduct was even more egregious than Attorney W..'s and as a result deserves a harsher sanction. Although Attorney W...'s client was able to rebuff his advances, Attorney...engaged in numerous instances of sexual relations with a client who suffered from numerous vulnerabilities. In addition to engaging in a sexual relationship with a vulnerable client, Attorney...disregarded the requests made by his client in early October 2006 that he not call her any more, and made numerous telephone calls to her between October and December 2006, including during the time she was a patient in a mental institution. After law enforcement authorities began their criminal investigation of Attorney...pertaining to his July 30, 2006, sexual encounter with the client, Attorney...had numerous communications with the client, her mother, her sister, and others, in an effort to get her to recant her statements about the events of July 30, 2006. In March 2007 Attorney...gave the client a cash payment and induced her to sign a self-serving document that he had prepared.
Attorney...sent a letter to two circuit court judges trying to persuade them there would be no merit to the potential criminal charges Attorney...believed the district attorney might pursue against him relating to the July 30, 2006, sexual encounter with the client. The letter Attorney...sent to the judges attached documents relating to the client's sexual history. Attorney...also included detailed information about the client's sexual and mental health histories in documents he submitted in the restraining order case the client filed against him. Throughout this entire disciplinary proceeding, Attorney...persisted in attaching to his pleadings hundreds of pages of medical records containing highly sensitive personal information about the client.
The court was appropriately sensitive to the privacy of the complainant:
Although the record in attorney regulatory proceedings is normally public once the OLR has filed a complaint, due to the extremely sensitive nature of this matter, the referee ordered that the entire record be sealed. We find it appropriate to grant the request made by counsel for the client that the entire file in this matter remain confidential and not accessible to the public. We also deem it appropriate to order that Attorney...not have any contact with the client.
No Ordinary Citizen
The District of Columbia Court of Appeals rejected the proposed one-year suspension of its Board on Professional Responsibility and imposed a three-year suspension with fitness in a matter involving "multiple violations of the rules prohibiting dishonest conduct." Unlike the board, the court found that the use of an escrow account to shield personal assets violated the rules that require basic honesty.
In part because the attorney "is comfortable acting dishonestly" and continues to deny misconduct, a fitness requirement was imposed. Notably:
[The attorney's] misuse of the IOLTA and escrow accounts was possible only because he is a member of the bar; an ordinary citizen trying to escape his tax obligations does not have the option of opening accounts with TINs other than his own, or of misleading government investigators by hiding funds that ostensibly exist only for the funds in the possession of a fiduciary.
The court also concluded that false statements made by the attorney in a sworn affidavit "cannot meaningfully be distinguished from false testimony..." He also did not further his cause because "very personal commitments" kept him from appearing before the board for oral argument. (Mike Frisch)
January 18, 2011
The Pennsylvania Court of Judicial Discipline has concluded that a former magisterial judge engaged in sanctionable conduct as a result of his guilty pleas to forgery, identity theft and perjury (first degree misdemeanors) as well as false signatures in nominating petition and criminal conspiracy (both ungraded misdemeanors).
The commission ordered that the judge be removed from office and barred from judicial office in the future. (Mike Frisch)
A Problem Of Proof
A decision issued today by the New York Appellate Division for the First Judicial Department in a probate matter is quoted in full:
Order, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about June 7, 2010, which granted the petition for letters of administration, unanimously affirmed, without costs.
Even if objectant could prove that she was the deceased's concubine under the law of Oaxaca, Mexico, her relationship with the deceased would not be recognized as a marriage in New York because concubinage is not considered marriage in Oaxaca (citations omitted)
Night Of the Hunter
The New York State Commission on Judicial Conduct has censured a non-attorney town court justice for intervening in a matter that involved the complaint of his son about a hunter trespassing on the son's property.
The commission's press release notes that the justice arranged for the case to come to him, took a guilty plea and then transferred the case to his co-judge to impose sentence, and suggested to the co-judge that a fine be imposed. (Mike Frisch)