October 14, 2011
Legal Ethics Writing Opportunity for Students
The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly articles (short - from 300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate a online writing portfolio accessible by search engines like Google or Bing.
Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson, web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).
The Iowa Supreme Court found that an attorney's neglect of several probate matters showed "remarkable consistency" and imposed a 30 day suspension.
The attorney was admitted in 1988 and had no prior discipline. His neglect prolonged the cases at issue in the bar proceedings, two of which took seven years to resolve. He will be automatically reinstated unless the Disciplinary Board objects.
Notably (and I don't recall seeing this in a prior bar discipline case), the attorney once served as a bar admission examiner. (Mike Frisch)
October 13, 2011
"A Fun, Safe Environment..."
The New York Appellate Division for the First Judicial Department declined to dismiss a lawsuit involving horrific injuries sustained by a bar patron. The defendant who had sought the dismissal was Bacardi.
The court found that the allegations sufficiently pled a viable claim for actual and punitive damages:
Plaintiff patron alleges that she was injured when, while at the bar at defendants-respondents' restaurant, the bartender, in a pyrotechnic display, poured Bacardi's high-alcohol content rum onto the surface of the bar and ignited it. At that point, the flame ignited into the bottle and the flaming contents shot out of the mouth of the bottle. As a result, plaintiff sustained severe burns.
The motion court properly concluded that under the circumstances plaintiff has viable claims for both negligence and strict liability based on defective design. Bacardi has submitted no evidence substantively contradicting the facts set forth in the complaint or in the affidavits of plaintiff's experts...Although Bacardi included warning labels on the bottle of Bacardi 151 and installed a removable flame arrester, it did so while actively promoting the very pyrotechnic uses that caused plaintiff's injuries.
The New York Daily News had this coverage of the filing of the suit:
A Manhattan woman who went up in flames to "Great Balls of Fire" when a bartender lit a match to 151-proof booze is firing back in court.
Lauren Sclafani is suing the owners of the Brother Jimmy's chain of barbecue restaurants after she suffered second- and third-degree burns in March in a fiery stunt gone bad.
"I was just about to leave when they decided to light the bar on fire," Sclafani said. "The next thing I know, I am on fire."
Her suit, filed in Manhattan Supreme Court, charges the bottle of booze exploded, shooting flames that engulfed Sclafani's face, arms and arms.
"It's like lighting gasoline," said her lawyer, Thomas Moore.
Sclafani, a financial worker, spent three weeks in the burn center at New York-Presbyterian Hospital, where she underwent surgeries and skin grafts.
"I can't understand why they would light the bar on fire," she said. "It's mind-boggling to me that they would put so many people in peril."
A spokesman for Brother Jimmy's - which no longer keeps bottles of 151-proof rum in stock - defended the chain's safety record.
"It is a fun, safe environment that people have come to know for 20 years," said Ron Berkowitz.
Sclafani said her injuries will force her to wear compression garments on her hands and to stay out of the sun.
"I just want to go on with my life," she said. "But I really can't."
Her suit also targets Bacardi.
"If you want to do some drinking, I can't think of why 100-proof wouldn't be enough," Moore said.
The End Of An Affair
The District of Columbia Court of Appeals approved a consent disposition and imposed a public censure on an attorney who engaged in an intimate relationship with former Detroit Mayor Kwame Kilpatrick while serving as a court-appointed monitor of two consent judgments involving the city. The court agreed that the sanction was appropriate in light of comparable violations of Rule 8.4 that involved criminal contempt.
This is truly wonderful news. An ad hoc hearing committee had submitted its recommendation for consent discipline exactly a month ago. Notably, the committee found no comparable case and the court did not find the absence of precedent a reason to reject the consent.
Now the case is over. No remand or questions for the Board on Professional Responsibility. Maybe there is a divine force that puts things right in time.
In my view (familiar to blog readers), any day the D.C. court approves a consent is a good day. When the court approves two (as it did today), the gods of discipline are smiling.
The second case - In re Dennis Clarke - was submitted on August 18. The case involves conceded billing misconduct with significant mitigating factors. The sanction is a 90 day suspension with all but 30 days stayed and probation for two years. I can testify from personal experience that if a case like this was essentially uncontested but had to go through the full process, a result like this might well be reached in 2015.
Both cases were decided by the same division of judges - Associate Judge Fisher, Associate Judge Retired Reid and Senior Judge Nebeker.
Our prior coverage of the first case here. (Mike Frisch)
Reciprocal Interim Suspension Imposed
An attorney who was suspended on an interim basis in the District of Columbia was reciprocally suspended by the New York Appellate Division for the Third Judicial Department. The court noted the serious nature of the pending D.C. charges and the attorney's failure to notify the court of the D.C. interim suspension. The attorney must show that he had been reinstated in D.C. to apply for reinstatement of his New York license. (Mike Frisch)
Bank Not Liable When Law Firm Scammed
A law firm that was scammed by a Hong Kong company that had e-mailed the firm purportedly to seek representation sued two banks when they lost nearly $200,000. The scam involved receipt of a $10,000 retainer and the remitting of $197,500 to the "client."
The law firm claims that a partner was told be a bank employee that an incoming check had "cleared." In reliance, he wired out $187,500. The incoming check was a counterfeit. By the time the bad check was discovered, the law firm had been fleeced.
The New York Court of Appeals (over a dissent) affirmed the entry of summary judgment to the banks. The dissent would allow a claim of negligent misrepresentation to proceed. The justice would find a triable issue in the "check cleared" assurance.
A cautionary tale here. (Mike Frisch)
Life In Prison, Permanent Disbarment
The web page of the Ohio Supreme Court reports:
In a 7-0 per curiam decision announced today, the Supreme Court of Ohio permanently revoked the license of former McConnellsville attorney Joseph Norman Williams.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Williams, whose license has been under an interim suspension since his 2010 felony convictions on three counts of child rape, should be permanently disbarred for violations of the state discipline rules that prohibit an attorney from engaging in illegal conduct involving moral turpitude, and engaging in conduct that adversely reflects on an attorney’s fitness to practice law.
Williams was sentenced to life imprisonment for his convictions, and is currently incarcerated at the Mansfield Correctional Institution.
The opinion is linked here. The court finds that permanent disbarment is the appropriate sanction for the offense as it is for crimes such as murder. The attorney raped his seven-year old nephew. (Mike Frisch)
The District of Columbia Court of Appeals has disbarred David Safavian as a result of his conviction for obstruction of justice and false statements. The court held that obstruction of justice is a crime that always involves moral turpitude per se and that disbarment was mandatory.
This wikipedia entry describes the story that led to this result. (Mike Frisch)
October 12, 2011
Bar Admission Tip: Avoid Convictions After Law School Graduation
The New York Appellate Division for the Fourth Judicial Department denied admission to an applicant who had disclosed a conviction for attempted criminal possession of a weapon in the third class. The applicant also disclosed a finding of academic misconduct in law school for "submitt[ing] a paper with insufficient attribution of sources." The Committee on Character and Fitness "convened a subcommittee to investigate [his] fitness to practice law."
At the hearing held by the subcommittee, the petitioner revealed another conviction for criminal trespass in the third degree. His explanation was that he followed his defense attorney's advice not to include it. The defense attorney denied giving such an instruction.
The subcommittee determined that he demonstrated a lack of character and was unfit to practice law. The full committee agreed. Here, so did the court. The court was particularly concerned that the convictions were for conduct that occurred after the applicant had graduated from law school. (Mike Frisch)
No Basis To Vacate Disbarment
An attorney who was disbarred in 2003 filed a motion to vacate the order and proceedings against him, claiming that the Oklahoma Supreme Court did not have jurisdiction to sanction him.
The claimed basis to vacate:
In December 2010 Respondent filed a petition to vacate and sought to vacate all of the disciplinary proceedings herein, including this Court's opinion disbarring him in 2003. His seventy-eight page petition claims that the disciplinary proceedings occurred without personal jurisdiction. His argument centers on the concept that personal jurisdiction requires a summons and a return to be of record in a proceeding. He also claims that the trial panel lacked subject matter jurisdiction because his trial panel hearing did not occur within the sixty days required by Rule 6.7 of the Rules Governing Disciplinary Proceedings. He argues that Rule 6.7 created a "Due Process Property Right" to which he was entitled. He argues that opinions of this Court have held that certain time limits in the procedure for disciplinary proceedings are not jurisdictional, and that such holdings make the disciplinary procedure "void for vagueness," and that all of Oklahoma's lawyer disciplinary proceedings are void. He argues that he was denied equal protection under the law as guaranteed by the Fourteenth Amendment to the U. S. Constitution because (1) Rule 6.4 "prevents challenges to the jurisdiction over the accused, the proceeding, the claims, etc., in Oklahoma attorney disciplinary proceedings," (2) that the Code of Civil Procedure in civil cases is not allowed to be followed in its entirety in disciplinary proceedings, and (3) a strict rule of procedure such as the sixty-day requirements of Rule 6.7 may not be "relaxed." Respondent seeks as additional relief an order expunging all records of his disciplinary proceedings and to be reinstated on the Oklahoma Roll of Attorneys.
The court disagreed:
We hold prospectively that the statutory procedure for vacating judgments in a District Court, 12 O.S. §§ 1031-1038, inclusive, is not applicable in a Bar disciplinary proceeding. We have examined Respondent's allegations relating to jurisdiction herein. Respondent made a general appearance in this disciplinary proceeding and his claim of a lack of personal jurisdiction is without merit. Respondent frames his other claims as violations of constitutional principles that he then attempts to characterize as jurisdictional via the Oklahoma Due Process Clause. These claims are not jurisdictional. For example, Respondent's claim of noncompliance with the literal language of Rule 6.7 is a claim of legal error and is not jurisdictional. As a nonjurisdictional claim, any legal error in granting the six-month continuance is not a jurisdictional flaw on the face of the record and is not grounds for vacating Respondent's disbarment. We have also concluded that the claims raised by Respondent are without merit, and that his petition to vacate his disbarment and all other requests for relief should be denied.
Respondent's petition to vacate his disbarment is denied. Respondent's request to expunge his Oklahoma professional disciplinary records is denied. Respondent's request for relief against his former lawyer is denied. Respondent's request for relief against the Oklahoma Bar Association is denied. All other relief requested by Respondent in his Petition to Vacate and Notice of Reservation is denied.
October 11, 2011
A Slap In The Face
The South Carolina Supreme Court has imposed a suspension of 90 days for the following misconduct:
Respondent represented the plaintiff in a civil suit. On April 2, 2008, the deposition of the plaintiff had just concluded and respondent was preparing to take a second deposition. The deponent in the second case was a defendant in the lawsuit. Respondent asked if anyone wanted to take a break. The defendant, who was seated across the table from respondent, said something to the effect of "No, let's get this crap over with." Respondent then stood up and pointed at the defendant's face and warned him not to speak to him in that manner. The defendant stood up and told respondent not to point his finger at him. Respondent then slapped the defendant in the face.
The defendant initiated criminal charges of simple assault and battery against respondent. Respondent pled "no contest" and was sentenced to payment of a fine.
Respondent self-reported this incident to ODC on the day it occurred.
The sanction was imposed by consent, with specified conditions on reinstatement. (Mike Frisch)
October 10, 2011
Transcript Dishonesty Draws Censure
The New Jersey Supreme Court has censured an attorney who falsely represented to his law firm that he had gotten a "A" in Con Law while at Rutgers Law School. In fact, he had received a "C+."
The attorney had secured employment at two law firms using the transcripts with inflated grades. To Sills Cummis & Gross (where he summered and later became an associate), two "Bs" became "B+s. "
He then submitted an altered transcript to Herrick Feinstein and was hired as an associate. The firm (wisely, in my view) insists on an official transcript. The attorney put them off for a year and then tried to conceal the true grade but got caught and fired nonetheless:
A year after he was hired, respondent finally provided an original transcript to the Herrick firm. However, he had affixed to the transcript a yellow Post-It® note, on which he
had written a message to someone named "Elise" in a black indelible marker. When respondent wrote the name "Elise," he did so in such a way that part of the letter "E" was written
directly on the transcript, exactly over the Constitutional Law grade, thereby blocking it.
Someone at the Herrick firm held the transcript up to a light and noticed that the Constitutional Law grade was C+, not A. Rutgers -- Newark confirmed that respondent had received a C+in that course.
He was then fired and given the chance to self-report to the Bar. The firm reported him when he failed to do so.
The investigator for the District Ethics Committee ("DEC") asked him if he had deceived his first firm. He falsely denied doing so. The Discipinary Review Board ("DRB") rejected his claims of faulty memory regarding the altered transcripts submitted to his Sills Cummis.
He did say that what he did was "an indefensible decision that I have regretted ever since" and that he is "truly sorry."
The DEC proposed a one-year suspension. The DRB split on sanction with equal votes for censure or a three-month suspension.
The court decided not to suspend.
What has happened to practice standards in New Jersey that a pattern of dishonesty such as proven here results in a censure? I suspect that those disadvantaged by employment-related grade inflation dishonesty would take a dim view of this result. (Mike Frisch)
The New Jersey Supreme has admonished an attorney who was the victim of series of escrow account thefts over a three-year period. The attorney had failed to conduct reconciliations of the account that would have uncovered the thefts, which eventuallty totaled over $9,300.
The attorney got a notice that he was receiving Platinum Service automatic withdrawal from the escrow account. He inquired about the service and learned that it was set up by one Rhonda Lige. He did not know any such person. He moved his escrow account and contacted the police. For some reason not clear from the Disciplinary Review Board report, he failed to follow through with the criminal investigation.
He did borrow money from his parents to replenish the account.
The police charged Rhonda Coons AKA Rhonda Lige AKA Rhonda Lige-Coons AKA Rhonda Coons-Lige with various crimes. The escrow thefts at issue here were not the subject of the criminal case.
The court 's order requires him to reconcile his trust account on a monthly basis. (Mike Frisch)