September 30, 2011
A Massachusetts attorney who had been suspended since 2009 was disbarred in a default action by the Supreme Judicial Court. The attorney had engaged in misconduct in a series of patent-related matters. He also had misappropriated a $20,000 advanced fee. (Mike Frisch)
Left In The Lurch, Attorney Reprimanded
An attorney admitted in Iowa in September 2009 and Nebraska in June 2010 was publicly reprimanded by the Nebraska Supreme Court.
The attorney was hired as a law clerk while in his second year of law school. He later became an associate to the firm, which had been a solo practice. His employing attorney "began to work fewer hours in the office, apparently due to a severe disruption in her nonwork life." She began to miss hearings and appointments; she later was hospitalized for stress.
The attorney was the only other lawyer in the office. He tried to carry on the practice, signing the other attorney's name to pleadings and checks with her consent. He notarized "at least" two pleadings that he himself had signed with her name.
The attorney admitted the charged misconduct. (Mike Frisch)
Exploitive Contingent Fee Results In Suspension
The Indiana Supreme Court has imposed a suspension of at least 120 day for "misconduct by collecting a clearly unreasonable and exploitive fee." Reinstatement is not automatic.
The attorney was newly admitted when he was approached by the client. The client, through other counsel Ross, had settled a personal injury case. A trust was established with Ross as trustee. The trust was intended "to preserve [the client's]eligibility for public assistance and to prevent rapid depletion by [the client's abusive, substance abusing boyfriend]."
The client (under pressure from the abusive boyfriend) later wanted access to the trust money. Respondent agreed to take the case on a contingent fee basis.
Ross immediately agreed to resign as trustee and have respondent appointed as sucessor trustee. After the transition, the attorney paid himself one-third of the funds held in trust, nearly $15,000. The client got nearly $30,000, which presumably is now spent.
The court emphasized that a contingent fee is not unreasonable "every time a case turns out easier or more lucrative than contemplated by the parties at the outset." Further, a fee that is not unreasonable at the outset may become unreasonable in light of developments.
...Respondent may have reasonably believed at the outset that removing Ross as trustee would be contested (despite documentation indicating Ross was willing to step aside in favor of a qualified successor). He may have even reasonably questioned the amount of money in the trust upon which his fee would be calculated and collected (despite documentation that $42,500 had been deposited in it just a few months earlier). But within two or three days, Ross agreed to resign as trustee in favor of Respondent, and Respondent had assumed control over the trust, knew the balance in the trust account, had gained access to those funds, and had cut himself a check for his fee. At this point, he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition.
Respondent was not remorseful, made misrepresentations and "took an indifferent attitude" towards his vulnerable client and her situation, among other aggravating factors. The client's vulnerability seems to have been a particularly significant factor to the court. (Mike Frisch)
September 29, 2011
The Mississippi Supreme has suspended a justice court judge for 30 days without pay for a conflict between her judicial duties and private law practice. The judge issued a warrant for the arrest of an ex-husband on charges of kidnapping his own child while representing the ex-wife in ongoing litigation. The affidavit of the ex-wife was the basis for the warrant.
The court rejected a proposal by the judge and Commission on Judicial Performance for a non-suspensory sanction:
After conducting an independent inquiry and giving careful consideration to the joint motion for approval of recommendations and the supporting brief, we are unable to agree with the recommendation of the Commission. Because Judge Bustin abused the power of her office, acted as judge in a matter involving one of her own clients, and has engaged in similar misconduct in the past, we order a thirty-day suspension from office without pay in addition to the recommended sanctions.
The judge does not intend to seek reelection. (Mike Frisch)
Judge May Not Serve
A recent judicial ethics opinion from Florida:
May a judge serve as a member of the wait staff at a charitable organization’s fundraiser luncheon when the wait staff will be comprised of only elected officials and contributions will be solicited and collected at the event by the non-judicial wait staff?
The inquiring judge has been invited to attend a fundraiser for a respected organization that provides emergency shelter, food, clothing, case management and spiritual guidance to the disadvantaged, needy and homeless and to abused women and children. The inquiring judge would be one of several elected officials who would be the wait staff at the organization’s fundraiser luncheon. The wait staff will be comprised of only elected officials, and they will wear special aprons showing support for the organization. None of the wait staff will be asked to collect or solicit money. Members of the wait staff are not featured individually at the program. Members of the wait staff, referred to as “servants,” are not named; however, they are asked to gather as a group for a general thank you at the end of the program. Their names are not used in any pre-event advertisements. The inquiring judge will not be asked to solicit money in any way, from any person at the event. Other non-judicial “servants” will collect money at the end of the event, and one non-judicial “servant” will be making a personal appeal for contributions at the end of the luncheon.
The inquiring judge has been involved with this event for the past seven years.
The facts presented by the inquiring judge here do not fall in the commentary’s permitted category of “food server.” By using only elected officials as its wait staff, or “servants,” the charitable organization has made the judge a featured participant, whose presence is requested to enhance the collection of contributions. Elected officials who are not judges will be collecting money at the end of the event. A personal appeal for funds will be made at the end of the event by a non-judicial “servant.” The judge is then thrust into the business of fundraising, whether the judge intends this or not. The inquiring judge should not participate as a member of the wait staff for this fund-raising event.
One dissenting member of the committee views the majority opinion as a refusal to accept and implement the policy changes adopted by the Supreme Court with the 2008 amendments to the Code and Commentary; the dissenting member states that being a food server at a charity’s fund-raising event is specifically mentioned with conditional approval in the present commentary, and the dissenting member believes this proposed food serving activity satisfies every condition in the Code and Commentary. This dissenting member sees the majority opinion as a continuation of pre-2008 restrictive rules that caused judges to become isolated from the community in which they live.
September 28, 2011
Indigent Defendants Entitled To Publicly-Funded Resources In Utah
The Utah Supreme Court has held that a criminal defendant who is declared to be indigent may qualify for court-paid resources even after retaining private counsel.
In another case, a defendant who was represented by retained counsel sought an order required the Salt Lake Legal Defender Association ("LDA") to pay the costs of an expert witness. The trial judge granted the motion without notice to the LDA.
On appeal, the Utah Supreme Court held that LDA had a due process right to notice and to be heard before being ordered to pay for the expert. (Mike Frisch)
Proposed New Judicial Ethics Code Provisions In D.C.
The District of Columbia has asked for comments on revision to its judicial ethics code:
The Joint Committee on Judicial Administration in the District of Columbia has before it the recommendation of the Advisory Committee on Judicial Conduct to adopt the American Bar Association 2007 Model Code of Judicial Conduct, with amendments. The Advisory Committee has received comments from active and senior judges, magistrate judges and the Auditor-Master on the proposed code. Comments have also been received from the District of Columbia Commission on Judicial Disabilities and Tenure. The Joint Committee now invites comments from the members of the District of Columbia Bar and the general public. Please see below for the Advisory Committee’s proposed 2011 Code of Judicial Conduct, with supporting explanations for amendments to the Model Code, the 2007 ABA Model Code, and the 1995 Code of Judicial Conduct currently in effect in the District of Columbia.
Written comments in respect to the proposed D.C. Code of Judicial Conduct may be submitted by October 31, 2011 to:
Valentine M. Cawood, General Counsel
District of Columbia Courts
500 Indiana Avenue, N.W., Room 6715
Washington, D.C. 20001
All comments submitted in respect to this notice will be available for inspection, upon request, at the office listed above.
This link takes you to links to the old and proposed new codes. (Mike Frisch)
Conversion From Law Firm Draws Suspension
The Minnesota Supreme Court has approved a jointly-recommended suspension for a minimum of 90 days in matter in which the attorney admitted "conversion and civil theft of property belonging to [his] former law firm and breach of fiduciary duty..."
In order to be eligible for reinstatement, he must file an affidavit certifying CLE compliance and pass the professional responsibility portion of the state bar exam. He also must cause any firm in which he has an ownership or management role to comply with certain state filing obligations.
12 not 11
The Ohio Supreme Court has announced some rule changes that include modification of the rules governing pro hac vice admission.
One rule remains the same:
One area of the Rules of Practice that hasn’t changed is the requirement that the text of all documents shall be at least 12-point, double-spaced non-condensed type.
Rule 8.4(A)(3) states: “The text of all documents shall be at least 12-point, double-spaced noncondensed type. Footnotes and quotations may be singled-spaced; however, they shall also be in 12-point, noncondensed type. As used in this provision, ‘noncondensed type’ shall refer either to Times News Roman type or to another type that has no more than eighty characters to a line of text.”
Kristina Frost, Clerk of the Court, said it’s important to issue a reminder from time to time to make sure documents are easy to read and comply with page limit requirements.
“We have noticed more and more documents submitted in 11-point type, which may be the result of a default setting on some word processing programs. We are encouraging attorneys to double-check the font size of documents they plan to file with the Court.”
This reminds me of the classic scene in This is Spinal Tap - when we need an extra push, we go to 11. (Mike Frisch)
Disbarment Now, Opinion To Follow
"For reasons to be stated in an opinion later to be filed[,]" the Maryland Court of Appeals has disbarred an attorney. The court had previously imposed an indefinite suspension of the attorney. (Mike Frisch)
September 27, 2011
Res Judicata No Bar To Bar Prosecution
The Massachusetts Supreme Judicial Court has affirmed the order of a single justice that imposed a suspension of a year and a day in a matter that arose from a probate proceeding.
The court rejected the attorney's claim that the disciplinary proceeding was barred as a result of the action of the probate court:
While the conduct described in bar counsel's petition for discipline may have come to light and been examined by the judge in the context of the guardianship proceeding, and while there were evident adverse consequences for the respondent in that proceeding, the separate question whether the respondent's conduct as an attorney warranted professional discipline was not for the guardian ad litem to prosecute or for the probate judge to adjudicate. Further, it is irrelevant that the guardian ad litem, the judge, or both, may have had a basis to report the respondent's conduct to the bar counsel (as to which we express no opinion) yet did not do so. It was bar counsel's prerogative to initiate a disciplinary case against the respondent, and the board's prerogative to adjudicate the same, regardless whether the matter was reported to them by the guardian ad litem or by the board. Principles of res judicata simply do not preclude bar counsel in circumstances like this from investigating an attorney's conduct in the underlying trial court case and from pursuing professional discipline against the attorney's license on the basis of misconduct that is found there. Cf. S.J.C. Rule 4:01, § 11, as amended, 453 Mass. 1306 (2009) ("a verdict, judgment, or ruling in the lawyer's favor in civil ... proceedings shall not require abatement of a disciplinary investigation predicated upon the same or substantially similar material allegations"). The duties and prerogatives of bar counsel and the board--and this court's power to superintend the bar and impose discipline when appropriate--are not preempted or compromised in any way by the decisions of other counsel (here, the guardian ad litem) or the judge in the underlying litigation.
Three Plus Three
An attorney suspended in New Jersey for three months foor neglect of several matters has been suspended for a second three-month term to be served consecutively to the previous suspension. The most recent case involved neglect and related violations in a personal injury matter. The attorney must satisfy conditions for reinstatement. (Mike Frisch)
Child Porn On Office Computer Leads To Conviction, Suspension
The Pennsylvania Supreme Court has suspended an attorney convicted of a child pornography offense.
WPIX.com reported on the attorney's guilty plea in April 2011:
A Pittsburgh attorney has pleaded guilty to buying child pornography that was later found on the computer in his downtown law office.
James Kuhn III, 64, of Brackenridge, pleaded guilty to one count of possessing child pornography on Tuesday. He faces a maximum of 10 years in prison when he's sentenced Aug. 27 by a federal judge in Pittsburgh.
Prosecutors said Kuhn paid $79.99 on eight occasions to gain access to child porn Web sites. More than 150 images of child pornography were found on his computer when investigators executed a search warrant at his office in October 2007. A Pittsburgh attorney has pleaded guilty to buying child pornography that was later found on the computer in his downtown law office.
The Post-Gazette.com reports that the attorney was found out through paypal receipts traced to his office IP address. (Mike Frisch)
September 26, 2011
A Tennessee attorney has been suspended as a result of a conviction of aggravated perjury. The charges were reported by midsouthnewz:
A sealed indictment, returned by the July Term of the Hardin County Circuit Court Grand Jury, was unsealed earlier this week resulting in the booking and release of local attorney James Powell.
According to sources in the Hardin County Sheriff's Office, Powell was served a felony capias summons and booked on Tuesday, July 20th at around 10 AM.
Officials in Hardin County Circuit Court stated that the indictment charges Powell with one count of aggravated perjury.
No stranger to making headlines Powell, in April of 2009, filed a lawsuit against County Mayor Kevin Davis, School Board President David Long, and Director of Schools John Thomas while serving as counsel to "Concerned Citizens of Hardin County". The lawsuit started a chain of events that eventually culminated in a county-wide vote to repeal or retain one cent of the county local option sales tax.
Calls to Powell's business, and related calls to Assistant District Attorney General Ed McDaniel have not been returned at the time of this report.
Lying To Clients Draws Censure
The New Jersey Supreme Court has imposed a censure on an attorney who neglected a consumer fraud action undertaken on behalf of several clients and lied to the clients about the progress of the case. According to the Disciplinary Review Board:
We find that this matter is similar to the Cellino and Franks matters. Like these attorneys, respondent lied to his clients that their matters were progressing. Like Cellino, he did so repeatedly. In addition, he has an admonition on his ethics record. We, therefore, find that a censure is the appropriate form of sanction here. The leniency here is distressing. (Mike Frisch)
We find that this matter is similar to the Cellino and Franks matters. Like these attorneys, respondent lied to his clients that their matters were progressing. Like Cellino, he did so repeatedly. In addition, he has an admonition on his ethics record.
We, therefore, find that a censure is the appropriate form of sanction here.
The leniency here is distressing. (Mike Frisch)
University of Akron Hosts Tom Morgan to Lecture on Legal Profession and Education, Oct. 28
The lecture is part of the University of Akron's legal ethics center, with its director, Frank Quirk, and it faculty director, John P. Sahl. The Lecturer is the renowned legal ethics teacher and writer Thomas Morgan of GW (who, from my experience visiting at GW a few years ago, is also a really nice guy). The announcement is:
The Third Miller-Becker Center for Professional Responsibility Distinguished Lecture in Professional Responsibility is scheduled for Friday, Oct. 28, at 4:00 P.M. at the University of Akron School of Law. Thomas D. Morgan, the Oppenheim Professor of Antitrust and Trade Regulation Law, of The George Washington University Law School, is the Distinguished Lecturer and his presentation is titled: “The Changing Face of Legal Education: Its Impact on What it Means to Be a Lawyer.” His presentation will focus on the changes the ABA has proposed in accreditation rules, what differences we may predict in the kind of graduates produced, and what those differences may make to potential clients and to others who became lawyers under different standards.
It will be in Room L-151; reception following in the Atrium. Congrats, Akron.
Accountability And Transparency
If a state bar has an interest in accountability and transparency, one thing it can do is publish and make available on line an annual report of its disciplinary activities.
Many bars do this; many do not.
Michigan has just released its report for 2010. Most notable from my point of view are the statistics on consent dispositions.
Last year, there were a total of 53 consent dispositions which accounted for 51% of all discipline imposed. Five of 22 revocations were by consent. Of suspensions of three or more years, three of five were consents.
Notably, the short suspensions (with automatic reinstatement) were resolved by consent 57% of the time. Reprimands were resolved by consent in 30 or 36 (83%) matters where such dispositions were imposed.
In short, the consent process disposes of most minor misconduct cases. The system is free to focus on the serious stuff, as there were 17 litigated revocations in 2010. In cases where the result was suspension with fitness, there were 18 contested matters.
Some respondents apparently bargain for a sanction less than revocation, as 60% of cases that involve a suspension of three or more years were consents. This is fine with me so long as such suspensions are imposed with the understanding that there will be a heavy burden to prove subsequent fitness for reinstatement purposes.
These numbers tell me one thing - the Michigan system trusts its disciplinary counsel to be able to tell the difference between serious and minor ethical violations and to implement agreements that fairly reflect the misconduct.
In the District of Columbia, by way of contrast, an infinitesimal fraction of cases get resolved by consent.
I can't give you the exact number because, unlike Michigan, no annual report has ever been made available on line. Cf. My thoughts on accountability and transparency. I think they do compile the numbers and distribute them at the annual (by invitation only) disciplinary dinner. (Mike Frisch)