January 29, 2011
A Notable Character Witness
An Arizona hearing officer has recommended a suspension of 90 days and probation for two years in a complex case involving an attorney's investment advice to individuals he reasonably believed to be his clients as well as others he did not believe were clients. The investments were in a Ponzi scheme, although the attorney did not know it at the time. One of the victims was his (now former) mother in law. The attorney was convicted of four misdemeanor criminal offenses as a result. The attorney had no prior discipline in 35 years of practice
Some notable aspects. First, one of his character witnesses was retired Supreme Court Justice Sandra Day O'Connor, who testified by telephone. She knows the attorney as a friend and through his work with her late husband. Second, the Bar called an ethics expert witness. Many disciplinary tribunals refuse to hear such testimony on the grounds that it is evidence on the ultimate question and thus inadmissible.
AZCentral.com had this report on the criminal matter. (Mike Frisch)
January 28, 2011
Forged Contract Results In Conviction, Disbarment
A Colorado Hearing Board has disbarred an attorney who sued his former law firm for money the firm allegedly owed him for work performed. He filed as evidence a purported contract signed by his employer. The employer's signature was a forgery.
The attorney was convicted of three offenses related to the conduct. The hearing board found that the conviction was conclusive evidence of the ethical violations. (Mike Frisch)
Judge May Have Web Page
From the Florida Judicial Ethics Advisory Committee:
May a judge create and privately maintain a website designed primarily to focus high school students on college or trade school preparation?
The inquiring judge intends to launch and maintain a website, primarily intended to focus high school students on college or trade school preparation. The home-page would have several potential sources of scholarship information which was provided by the local school system. The site would also have a page dedicated to linking those who suffer from domestic violence with assistance. This domestic violence page would suggest counseling and treatment for those who may need treatment at any of the state certified Batterer’s Intervention Programs. The site would have links on the main page to the Army, Navy, and Air Force recruiting offices. Finally the website would have a biographic page and briefly mention a domestic violence case that the inquiring judge was recused from because the violence occurred in front of the judge.
Included in the judge’s Inquiry is the request that we review the information on this site and let the judge know if anything needs to be changed. As in the case of requests to vet campaign literature, we decline to do so. This Committee has previously concluded that its charge does not (and logistically cannot) include the obligation to screen, upon request, any and all contemplated public statements of Florida's judges. Therefore, our advice to the inquiring judge will address only the concepts of the contemplated conduct.
As to the request to review the web page:
It is not practicable to list all the provisions of the Code that could apply to a judge’s web site. So, before publishing material on a web site, the judge should carefully examine all provisions of the Code that relate to the site and its topics, to insure that the judge is not doing on the web something the judge could not ethically do in person.
As stated in the Commentary to Canon 2A:
A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct…that are indispensible to the main-tenance of the integrity, im-partiality, and independence of the judiciary.
A minority of the committee believes that the committee should not have an absolute rule declining to review judges’ inquiries on website content. The minority believes that the committee should consider such inquiries on a case-by-case basis depending upon whether the inquiring judge has provided enough information to allow the committee to render an opinion in an efficient manner without further investigation.
The minority believes that, here, the inquiring judge has provided enough information to allow the committee to render an opinion regarding his intent to include links on his website for: (1) assistance for domestic violence victims and batterers, and (2) description of a domestic violence case from which the inquiring judge was recused.
As for the link for assistance for domestic violence victims and batterers, the minority is circumspect of the inquiring judge’s motive for including such a link because the inquiring judge’s stated intent for the website is “to focus high school students on college or trade preparation.” Nevertheless, such a link may be acceptable given the Florida Supreme Court’s adoption of certain recommendations for a model family court in In re: Report of the Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001). Domestic violence cases were expressly included in a model family court. Id. at 525. Among the recommendations which the Court adopted: “Trial courts must . . . establish linkages with community resources.” Id. at 522. Also, a model family court should include “a front-end intake process to provide information [and] make referrals to legal and social services.” Id. at 529. Domestic violence programs were identified as one of the type of social services for which the court should provide information and/or make referrals. Id. at 546. Thus, merely providing a link for assistance for domestic violence victims and batterers would not appear to cast doubt on a judge’s capacity to act impartially as a judge in domestic violence cases.
The opinion is linked here. (Mike Frisch)
With Or Without Cause
The New York Appellate Division for the First Judicial Department reversed an order dismissing the claim of discharged counsel for a share of fees:
It appears that plaintiffs discharged appellants less than five months after the action was commenced. Whether or not appellant was investigating and conducting discovery as to other potential defendants, as appellant claims, cannot be discerned from the record. The parties submitted starkly contrasting versions of the events which led to appellant's discharge. The general rule is that a hearing is required to determine if an attorney was discharged for cause or without cause before the completion of his services (see Hawkins v Lenox Hill Hosp., 138 AD2d 572 ). It is not clear from the record whether or not the motion court ever provided appellant with the opportunity to present and cross-examine witnesses. Accordingly, the matter is remanded for a hearing before the motion court to determine the issue of whether or not appellant was discharged for cause.
The fee entitlement claim was brought in the underlying civil case rather than as a separate action. (Mike Frisch)
January 27, 2011
Traveling Man Has Selective Focus
The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney. According to the court's opinion, "a federal jury found that [the attorney] had indeed induced [a client] to retain him by furnishing a resume that patently misrepresented [his] experience as a litigator." The jury awarded a total of $385,000. The underlying suit had been dismissed as a result of the attorney's errors. Professional discipline was imposed against the attorney in 2003.
Misconduct was found here for the attorney's efforts to frustrate the collection of the judgment. He pled guilty to criminal contempt and was sentenced to probation with six days confinement in a halfway house. The sanction was for the contempt conviction and subsequent probation violation:
As to his violation of probation, on May 28, 2009, respondent pleaded guilty to traveling outside the judicial district without court leave — to Paris in 2008 and to Rome in March 2009. Respondent also pleaded guilty to lying to a probation officer in March 2009 concerning the Paris trip, which he only acknowledged after being required to produce his passport for inspection. While professing unawareness of the travel restrictions before the Hearing Panel, respondent had conceded such knowledge at his plea allocution some four months earlier. In a post-hearing submission that included documents relevant to his probation violation, respondent admitted that, in addition to the two European trips, he had traveled to Arizona and Boston in 2008 without court leave.
On August 6, 2009, respondent was sentenced in Federal District Court on the probation violation. While commenting on respondent's "various dishonest and deceptive maneuvers to avoid paying a judgment that he owed [his former client]," which was construed as a "pattern of deception," the court concluded that "this is something deeply embedded in his character, not something that's going to change . . . during a period of supervision." The court thereupon sentenced respondent to 30 days' imprisonment without any further period of supervision.
In mitigation, the Hearing Panel noted that the reason for respondent's European travel was to participate in marathons in connection with his fund-raising efforts on behalf of the Leukemia & Lymphoma Society, which was prompted by his diagnosis with lymphoma. The Panel also noted that respondent's malpractice in connection with the Baker matter had already been the subject of a judgment in federal court and a prior disciplinary proceeding in this Court.
As to sanction:
While respondent was sentenced for his contumacy, satisfaction of the judgment to which his contempt related was only motivated by the commencement of the instant disciplinary proceedings. While this Court accepts that respondent's travels were undertaken for a worthy purpose, it remains that he made no attempt to obtain the requisite leave of court and subsequently demonstrated a lack of candor, both to his probation officer and the Hearing Panel, concerning his awareness of the restrictions imposed on his mobility. Maintaining that his misconduct was not undertaken with a venal motive, respondent notes that it relates to a single matter and attributes his repeated violations of court orders to a "failure to focus" on the terms of his probation. Yet respondent displayed remarkable focus in his efforts to avoid making payments on the Baker judgment, including resorting to the reorganization of his law practice as a PLLC, bankruptcy, and willful disobedience of court orders, all of which were exacerbated by his violation of the terms of his probation and his misrepresentations before the Hearing Panel. The extent of an attorney's misconduct may warrant a substantial sanction even where only a single matter is involved...
Bank May Be Liable For Attorney Thefts
The New York Lawyers' Fund for Client Protection filed a subrogation action against JP Morgan Chase Bank seeking to recover about $1 million paid to 14 claimants who were victims of an attorney's misappropriation of fiduciary funds. The suit alleges that the bank retained the attorney and his firm to close mortgage loans and that reasonable inspections and procedures would have prevented his check-kiting scheme.
The bank appealed the denial of its motion to dismiss for a purported failure to identify claimants and losses. The New York Appellate Division for the Third Judicial Department affirmed the denial of the motion, concluding that the original and amended complaint provided notice to the bank. The amended complaint was properly considered as it was a "mere expansion" of the original allegations. (Mike Frisch)
No Per Se Ethics Violation For Failure To Pay Judgment
The Michigan Attorney Discipline Board increased a 179 day suspension that had been imposed by a hearing panel to 180 days. The significance of the extra day is that it requires the suspended attorney establish his fitness to resume practice in order to obtain reinstatement.
The attorney had failed to pay state and federal employee taxes, and had written a bad check. Notably, the board here rejected a finding of misconduct based on the attorney's failure to pay a civil judgment. The board concluded that such conduct does not establish a per se ethical rule violation. (Mike Frisch)
Unearned Warrants Get Former Probate Judge Suspended
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Gallipolis attorney...for cashing state payroll warrants totaling $71,405.04 in gross wages that were mistakenly issued to him between January and December of 2005, while he was suspended without pay from his former position as judge of the Gallia County Probate Court. The Court also found that [he] made false statements in seeking reissuance of four expired warrants.
In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] actions violated the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that reflects adversely on a lawyer’s fitness to practice.
In setting the sanction for his misconduct, the Court specified that [he] will not be eligible to apply for reinstatement of his license until he has made full restitution to the state.
The opinion is linked here. (Mike Frisch)
January 26, 2011
After Passing Bar On Eighth Try, Admission Denied
The New Hampshire Supreme Court has denied the application for bar admission of an applicant (identified as "G.W.") who sat for the bar exam seven times between 1991 and 2007 before passing in 2008.
Several criminal convictions occured over that period of time, including an 1993 April Fool's Day incident where he "pretended to be a robber," six violations of a restraining order in 1999, criminal threatening in 2001 and a 2004 driving while intoxicated. He owes almost $140,000 in student loans.
He passed the February 2008 bar exam (eighth time the charm) but ran into character and fitness troubles as a result of the crimes and "financial irresponsibility." The Standing Committee on Character and Fitness recommended that he not be admitted. The committee was concerned that he has "not held gainful employment since his law school graduation almost twenty years ago." He also had picked up a 2008 DWI charge.
The court found that, while the criminal conduct did not serve as an automatic bar to admission, the applicant had failed to accept responsibility for his conduct. His outstanding debts "are equally of concern." He had not displayed candor throughout the process.
We appreciate that the applicant...has overcome mental and physical difficulties. However, taken as a whole, the record reflects an individual with a long history of evading his financial obligations, as well as failing to accept responsibility for the consequences of his poor judgment and criminal behavior. We see no evidence that, as an attorney, the applicant would conduct himself any differently.
Application denied. (Mike Frisch)
An Illinois Hearing Board has recommended a stayed four-month suspension, with one year of probation, in a matter involving the attorney's 1994 DUI conviction and a 2008 conviction for possession of marijuana. The key evidence was given by the ("triply board certified") addictions expert called by the Administrator:
After interviewing Respondent, Dr. Henry stated that he formulated opinions regarding a diagnosis and recommendation for treatment. Dr. Henry stated that his diagnosis of Respondent was alcohol dependent and probable cannabis abuse. Dr. Henry stated that the cannabis abuse diagnosis was probable because Respondent empathically [sic] refused to submit to any laboratory testing.
Based on his diagnosis, Dr. Henry opines that Respondent could benefit from a treatment protocol for his substance use. Dr. Henry stated that Respondent would benefit from a course of intensive outpatient chemical dependency treatment. After completing that course of intensive outpatient treatment, Respondent would benefit from aftercare, which is a fairly common follow-up in which, once a week for a period of one year, an individual goes to a group with other individuals struggling with issues of chemical dependency who have just completed primary treatment. Dr. Henry stated that Respondent would benefit from involvement in a 12-step program, being urine-monitored for accountability purposes and having contact with a sponsor with whom Respondent would regularly remain in contact.
After considering Respondent's statement that he has not consumed alcohol since February 2010 or marijuana since 2007, Dr. Henry gave his opinion of whether Respondent could be considered "cured." Dr. Henry stated that no, Respondent was not cured because no one is ever cured of chemical dependency. One can only be in remission and an individual is always at risk for relapse. Further, Dr. Henry stated that it was his clinical experience that when an individual truly is in recovery, they will very willingly submit to laboratory tests because it proves them to be telling the truth. (Transcript citations omitted)
The proposed sanction would require alcohol treatment and reports from his treatment program. The attorney has no prior discipline. Note that the DUI took place almost seventeen years ago and that the attorney completed the alcohol program required in the criminal case. (Mike Frisch)
January 25, 2011
Legal Consultant License Stricken
The New York Appellate Division for the Second Judicial Department has accepted the resignation of a licensed legal consultant:
The resignor concedes that he is the subject of a pending investigation into allegations that he exceeded the scope of practice as a legal consultant, as set forth in Rules of the Court of Appeals (22 NYCRR) § 521.3. He acknowledges his inability to successfully defend himself on the merits against charges predicated upon the alleged professional misconduct under investigation.
[The resignor] avers that he is not being subjected to coercion or duress by anyone. He understands that his resignation constitutes the revocation of his license as a legal consultant. The resignation is submitted subject to any application which could be made by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) for an order directing that he make restitution and that he reimburse the Lawyers' Fund for Client Protection, pursuant to Judiciary Law § 90(6-a). [He]acknowledges the continuing jurisdiction of the Court to make such an order. He is aware that any order issued pursuant to Judiciary Law § 90(6-a) could be entered as a civil judgment against him, and he specifically waives the opportunity afforded him by Judiciary Law § 90(6-a)(f) to be heard in opposition thereto.
As a result, the resignor was stricken from the rolls of licensed legal consultants. (Mike Frisch)
Proposed Domestic Assault Sanction Too Lenient
A proposed 90 day suspension with all but 30 days stayed was rejected as unduly lenient in a case where the attorney was convicted of domestic abuse battery and child endangerment. The assault took place in the presence of minor children.
The Louisiana Attorney Disciplinary Board rejected the proposed sanction and, in turn, has recommended a one year suspension with all but six months stayed, followed by probation.
The hearing committee did not find remorse as a mitigating factor. He stated that the victim did not show "clear evidence of any physical assault" and suggested that he should have not retained a "dear friend" who is a civil practitioner to defend him in the criminal case.
The committee also noted that the attorney is a former wrestler and practitioner of the martial arts. (Mike Frisch)
The Mississippi Supreme Court has held that an attorney who had been suspended for three years has met the jurisdictional requirements for reinstatement. The court found that the attorney's physicians were well-qualified to opine on his fitness to practice, notwithstanding the fact that the Bar's counseling program did not approve the petitioner's doctors.
To complete the reinstatement process, the petitioner must take and pass the MBE. (Mike Frisch)
Sued Defense Attorney May Attack Former Client's Alibi
The New Jersey Appellate Division reversed an order quashing a subpoena in a legal malpractice case against the plaintiff's former criminal defense attorney. The plaintiff had been convicted of armed robbery and alleges negligence in the failure of his attorney to pursue an alibi defense. The conviction was reversed "principally based on judicial errors."
The defendants sought evidence in aid of attacking the alibi claim. The trial court found that the testimony sought had no relevance to the malpractice claim.
The court here disgreed. While a plaintiff need not prove actual innocence to pursue a legal malpractice claim, the alibi and actual innocence are at issue in the matter. The evidence (which might challenge the alibi) is thus relevant to the allegations. (Mike Frisch)
From the web page of the Tennessee Supreme Court:
The Board of Professional Responsibility filed a petition for discipline against [an attorney]. The hearing panel found that [he] should be disbarred, disgorge unearned fees, and pay restitution to clients. In addition, the hearing panel set forth requirements for [him] to be eligible for reinstatement of his license. [The attorney] applied to the chancery court in Davidson County for judicial review of the hearing panel decision. The chancery court entered an order on January 6, 2010, affirming [his] disbarment but reversing the hearing panel’s order of restitution of amounts to clients where no disciplinary complaint had been made. [The attorney] has appealed to this Court from the order of the chancery court, contending that he should have been suspended rather than disbarred. It is ordered that the chancery court’s January 6, 2010 order is vacated and that [the attorney's] appeal to this Court is dismissed. Because the sanction imposed by the hearing panel exceeds a three-month suspension and because no appeal was properly perfected, the Board is directed to file a copy of the hearing panel’s order for review by this Court in accordance with Tennessee Supreme Court Rule 9, section 8.4.
The opinion is linked here. (Mike Frisch)
Not Barred But Disbarred
The Maryland Court of Appeals disbarred an attorney who had never been barred in that jurisdiction. The attorney had, nonetheless, set up a law office in Rockville, Maryland. The attorney not only engaged in unauthorized practice, but falsely representing that she was admitted in Maryland. The attorney also committed client-related ethical violations in two matters.
The court concluded that disbarment was appropriate: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attorney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].' " (Mike Frisch)
January 24, 2011
Only A Reprimand For Forgery
The New Jersey Supreme Court followed the recommendation of its Disciplinary Review Board and has imposed a reprimand in a matter in which the attorney represented two plaintiffs in a personal injury matter.
The attorney settled the cases without the permission of the clients. He claimed that a miscommunication between him and his secretary caused him to mistakenly believe that the settlements were authorized.
He then forged the names of both clients to releases by "attempting to mimic their signatures." He also falsely took the jurat on the releases.
When the clients advised the attorney that they did not accept the offers, he failed to tell them what he had done. They retained new counsel and were able to prevent enforcement of the settlements. The cases later settled.
New Jersey used to have the reputation as the toughest disciplining jurisdiction for attorneys. With dispositions such as this one, it doesn't anymore. (Mike Frisch)
Not Enough Mitigation
The Maryland Court of Appeals has disbarred an attorney who had been the managing attorney for the Maryland office of a law firm known as Legal Helpers, P.C., a large national bankruptcy practice. The misconduct involved his signing up a firm client as his private client, escrow account violations and false statements to Bar Counsel.
The court found that the mitigating factors--no prior record, good faith restitution efforts and inexperience in law practice--did not constitute "compelling extenuating circumstances" to avoid disbarment. (Mike Frisch)
Disciplinary Proceedings Deferred While Criminal Charges Are Pending
The Georgia Supreme Court granted the request for temporary suspension of an attorney who is the subject of felony criminal charges. Disciplinary proceedings will held deferred until the criminal case is resolved, so that the attorney not be "faced with having to waive the constitutional rights that would otherwise be available in the criminal proceedings."
The attorney must notify the Bar within seven days of the disposition of the criminal case.
The ABA Journal reported on the charges, which involve alleged forgeries of a jusge's signature. (Mike Frisch)