Monday, August 29, 2011

Fraud Claim Not Dismissed

The New York Appellate Division for the Second Judicial Department held that a legal malpractice case, which involved claims relating to a Florida easement, was time-barred. However, claims of fraud survive:

... the Supreme Court properly denied that branch of the defendants' motion...which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant [attorney] to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct...

(Mike Frisch)

August 29, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Changes

From the web page of the Pennsylvania Disciplinary Board:

The Disciplinary Board has proposed amending the Pennsylvania Rules of Disciplinary Enforcement to provide for a new form of discipline, Public Reprimand, with or without probation.

The proposed rule, published at 41 Pa. Bull. 4200 (8/6/2011), provides that public reprimand could be imposed by the Disciplinary Board through summary procedure, which would not require the institution of formal proceedings, although the respondent-attorney would have the right, as with all summary discipline, to request that formal charges be filed prior to the imposition of discipline.

While noting that the proper applications of the new sanction will be defined in cases, the Board gives a few examples of situations where public reprimand may be applied:

  • The misconduct does not harm or prejudice a client, but causes significant prejudice to a court or the administration of justice;
  • Where public discipline short of suspension or disbarment has been imposed in another jurisdiction;
  • Criminal conviction of a relatively minor offense that receives public notoriety and demeans the legal profession;
  • An administrative body has found that the respondent-attorney violated a provision of an ethics act or code of conduct applicable to public officials and employees.

The Board explains misconduct in such cases may have already been exposed to public scrutiny, and the new provision will provide for a public sanction to satisfy the primary purposes of professional discipline while allowing the respondent-attorney to continue to practice law. The public reprimand may be subject to conditions and may be imposed in combination with probation.

Comments should be sent by mail or facsimile to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, P.O. Box 62625, Harrisburg, PA 17106-2625, facsimile number (717-231-3382) on or before September 30, 2011.

On the same day, the Disciplinary Board also issued a rulemaking modifying several of the Rules of the Disciplinary Board. These amendments, published at 41 Pa.B. 4202, carry into the Board Rules changes made in the Rules of Disciplinary Enforcement over the past several months. One substantive change in the new Board rules is that the time set forth in Section 87.7(b)(2) for responding to a Request for Statement of Respondent’s Position (DB-7 letter) is enlarged from 20 to 30 days. It should be mentioned that under the amendments to Rule 203(b)(7) of the Rules of Disciplinary Enforcement, failure to respond to a Request for Statement of Respondent’s Position is now a separate ground for discipline. The amendments took effect upon publication.

(Mike Frisch)

August 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Class Actions Draws Reprimand

The Kentucky Supreme Court has imposed a public reprimand of an attorney "for engaging in sexually explicit telephone conversations, and for making sexual advances towards the client while [the attorney] was representing the client in a class action, sometime in November and December of 2003." The italics are in the original.

The client "turned down the attorney's advances and notified the firm that she was going elsewhere for representation. The client stayed with the firm after a partner...talked to the client and reassigned the claim to another member of the firm."

The attorney had three prior private reprimands "for matters not similar to the facts of this case." (Mike Frisch)

August 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Broken Record

An attorney who became the subject of a bar investigation when he bounced a $1,000 escrow account check to himself was suspended for four years by the Alaska Supreme Court. Two other overdrafts were later reported to the bar.

The attorney was found to have failed to fully cooperate with the bar's investigation. One issue related to a CD that the attorney submitted that arrived in the mail broken in half. The court found no issue with the findings of non-cooperation:

...we observe that none of the Hearing Committee’s conclusions rely upon disputed issues of fact. The language cited by [the attorney] for this claim simply reflects what the record clearly shows: the CD did, in fact, arrive in an unusable state, and although [he] expressed his willingness to provide the information, he had not provided it by the time the Hearing Committee issued its order granting summary judgment in July 2009. The Hearing Committee did not find that [he] broke the CD. Its determination that [he] violated Bar Rule 15(a)(4) was based on [his] continuing failure to provide the subpoenaed information after he learrned from the...petition for formal hearing that the CD had arrived broken - regardless of what caused it to break. It was never fully resolved how the CD broke, but this issue was not material to the Hearing Committee's decision and did not preclude entry of summary judgment.

 The court relied on the attorney's failure to cooperate in distinguishing escrow account violation cases where lesser sanctions had been imposed. (Mike Frisch)

August 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)