November 12, 2011
Yale Law Journal adds Kindle, Nook & Apple ebook editions, 99c
The Quid Pro Books project (here), which includes new ebooks in addition to paperbacks, has worked with the editors of the Yale Law Journal to bring out in leading digital formats its 8 print issues per year. That is, particularly, downloads at Amazon for Kindle, B&N for Nook, and direct on iPad/iPhone at Apple iBooks. The student editors decided to price each issue at 99 cents (the minimum such sites allow to indy presses) to make it as accessible as possible--I applaud that--and to help people read each issue as a whole, like a book for the commute or for kicking back. The ebooks are fully formatted, with links for contents, notes, and even cross-references.
More for the philosophy and torts types than legal ethics teachers, perhaps, the first issue of academic year 2011-12, out today, has a summary by Jules Coleman of how jurisprudence is analyzed and structured--a clear synthesis that may turn out to be required introductory reading in the field--as well as a dialog on torts between Ariel Porat and Mark Geistfeld. Plus students have contributed notes on felon disenfranchisement and counter-terrorism. Issue two should follow in a week or two and can be found at the links above too.
All 56 books or journals in the project produced since May 2010 can be found online (including guttenburgy print for the books), for example in this comprehensive Kindle list. Most recent, besides YLJ, is Lawrence Friedman's Contract Law in America, reviewed by NYU's Dan Ernst at Legal History Blog. Friedman's latest book is The Human Rights Culture, on the sociology of the movement.
Please consider letting FB friends or Twitter followers know this new way to access YLJ. [Alan Childress]
And The Court Will Suspend
The Hawaii Supreme Court has imposed a 30-day suspension as reciprocal discipline for an attorney's misconduct in an appeal brief. As will be seen below, the attorney has had an interesting legal career.
The attorney is a civilian who was disciplined by Navy Judge Advocate General and a military court.
It appears that Respondent...submitted an appellate brief to the United States Navy-Marine Corps Court of Criminal Appeals in Washington, D.C., which omitted material facts necessary to accurately portray the court-martial proceedings that were the subject of the appeal. It further
appears that the Department of the Navy’s Office of the Judge Advocate General imposed upon Respondent...an indefinite suspension from the practice of law in the Department of the
Navy’s jurisdictions, and the United States Navy-Marine Corps Court of Criminal Appeals in Washington, D.C. imposed a one-year suspension upon Respondent...
The court majority found that the lesser sanction was appropriate because of a "lack of clarity"in the record that the attorney had intended to mislead or deceive the military court.
There is a dissent that would impose a suspension of, at a minimum, one year.
The suit seeks [the attorney's] reinstatement, as well as damages from specified Navy judge advocates named in their personal capacities, as well as attorney fees. The suit alleges, inter alia, that the Judge Advocate General of the Navy has no statutory authority to suspend civilian counsel from practicing in naval courts, that the regulatory disciplinary procedures weren’t followed, and that the ethics hearing officer had a conflict of interest.
The attorney (along with assigned military counsel) had represented a client at a court martial conducted at Pearl Harbor. The findings of misconduct related to the attorney's jurisdictional argument in defending charges of video voyeurism.
The attorney is no stranger to controversy. He represented one of two defendants whose story is recounted in a book by Vincent Bugliosi called And The Sea Will Tell. The book was made into a television movie. His client was convicted in one trial; Bugliosi's client was acquitted in a separate trial.
He sued Bugliosi and others for the way he was portrayed. The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of the action:
And the Sea Will Tell describes two controversial trials that resulted in dramatically different outcomes for defendants who were in some ways similarly situated. The purpose of the book is to offer the personal viewpoint of the author concerning the trials. Indeed, readers presumably purchased the book not to read a dry description of the facts but to learn of Bugliosi's personal perspective about the trials since he was both a key participant in the controversy and a well-known criminal defense lawyer. Because the book outlines Bugliosi's own version of what took place, a reader would expect him to set forth his personal theories about the facts of the trials and the conduct of those involved in them. Moreover, lawyers who write popular books, and particularly trial lawyers, are not known for their modesty; one would generally expect such authors to have a higher opinion of their own performance than of the professional abilities exhibited by other counsel...
Moreover, the subject of the book-the events that took place at Palmyra Island and the outcome of the two trials-is one about which there could easily be a number of varying rational interpretations. There is no question that the subject matter of the book, and the sources upon which Bugliosi relies in drawing his conclusions, are inherently ambiguous, and we believe that reasonable minds could differ as to how to interpret the events and actions described in it. Indeed, much of the public excitement surrounding the two trials stemmed from the fact that there is no clear answer as to what precisely occurred at Palmyra Island or as to why the two trials resulted in such different outcomes.
When, as here, an author writing about a controversial occurrence fairly describes the general events involved and offers his personal perspective about some of its ambiguities and disputed facts, his statements should generally be protected by the First Amendment.
The attorney recently secured the acquittal of a client who was charged with animal cruelty after admittedly killing a peacock with a baseball bat. This KHON2 report quotes the client's reaction to the favorable verdict:
"I'm going to Disney World we're going to have peacock souffle."
After listening to the video, it sounds to me that someone other than the defendant made the "souffle" remark. (Mike Frisch)
Sanction: Pro Bono Service
The Rhode Island Supreme Court has ordered an attorney to perform at least 20 hours of pro bono service as a sanction for billing misconduct in connection with his representation of juvenile guardianship clients.
The attorney had compounded the misconduct by falsely claiming that the misconduct was due to staff error. In fact:
...further investigation revealed that the respondent has no staff. When
confronted with that information by Disciplinary Counsel, the respondent acknowledged
that he had in fact prepared the invoices, that he was unsure as to the proper method of
submitting invoices for guardianship work, and that he concocted a story about an
incompetent staff to hide his embarrassment.
The matter will be dismissed on completion of the required hours of service. (Mike Frisch)
November 11, 2011
Attorney Suspended For Misconduct In Bankruptcy Matter
A justice of the Massachusetts Supreme Judicial Court has imposed a suspension of six months for an attorney's misconduct in filing and signing a bankruptcy petition on behalf of a husband and wife without ever meeting with the husband, impersonating the husband during a credit counseling phone session and signing a false certification on the husband's behalf.
The Board of Bar Overseers found that the wife had duped the attorney, who did not act in self-interest in the misconduct.
The court rejected the contention that the misconduct was immaterial. (Mike Frisch)
Judge Orders Permanent Disbarment
A disciplinary summary from the web page of the North Carolina State Bar:
[An attorney] of Pikeville pled no contest to two counts of criminal contempt in Wayne County Superior Court. The Honorable R. Stuart Albright found that Smith was not "truthful, open, and honest" with a district court judge. He also found that [he] failed to appear in superior court on another matter, failed to notify the court of the reason for his absence, and had previously been held in contempt for similar conduct. Judge Albright found that [his] conduct was willfully contemptuous and demonstrated a "willful and grossly negligent failure to comply with the schedules and practices of the court resulting in substantial interference with the business of the court." Judge Albright ordered [him] permanently disbarred.
Don't Expect A Card On Father 's Day
An attorney who was convicted of misdemeanor attempted identity theft was suspended for six months by the New York Appellate Division for the Second Judicial Department.
According to this article in the New York Post, the victim was his own daughter:
A Long Island businessman betrayed his daughter - stealing her identity and wrecking her life by taking out nearly $100,000 in phony loans, authorities said.
Jacob Armon's scheme was uncovered after his daughter, Jesse, 22, found her credit a shambles last July and reported him to cops, sources said.
Armon, 57, was arrested Wednesday at his $2.8 million Oyster Bay Cove mansion, which sources say is in foreclosure, and arraigned yesterday on charges of grand larceny and ID theft.
"I guess he just figured this would be a great way to make money for himself," Nassau County Police Detective Sgt. Thomas Reilly said. Armon has portrayed himself as a major attorney and businessman, donating cash to Rudy Giuliani's campaigns, handing over six-figure sums to hospitals, and identifying himself as the head of a defense electronics company called Imrex.
November 10, 2011
Disgraced And Disbarred
The web page of the Pennsylvania Supreme Court Disciplinary Board reports the consent disbarment of a former Luzerne County Judge Michael Conahan, who was convicted in the "Kids for cash" scandal.
The criminal case is summarized on the web page of the FBI:
The judicial scandal, described as the worst in Pennsylvania’s history, and the federal prosecutions, have had major consequences: Ciavarella and Conahan resigned from the bench in 2009. Reform efforts are underway in the Luzerne County court system. The Supreme Court of Pennsylvania was compelled to vacate thousands of juvenile convictions in Luzerne County as a result of Ciavarella’s conduct as a Juvenile Court Judge. A State Interbranch Commission on Juvenile Justice was established to study what happened and to recommend changes in the state’s justice system aimed at safeguarding the constitutional rights of juveniles and improving the oversight and disciplinary process for judges in Pennsylvania. In June 2011, a committee of the American Bar Association reviewed and made recommendations to improve procedures in the state’s Judicial Conduct Board. A procedure was established in Luzerne County for compensation of victims of the activities of Ciavarella and Conahan.
Conahan and his co-defendant, Mark Ciavarella, who also served as president judge of the Court of Common Pleas of Luzerne County, were initially charged in January 2009. The charges were the result of a federal investigation of alleged corruption in the Luzerne County court system. The inquiry began in 2007 and over the next four years expanded to include county government offices, state legislators, school districts and contractors in Northeastern Pennsylvania.
Ciavarella and Conahan were originally charged with honest services mail and wire fraud and tax fraud in connection with the use of privately owned juvenile detention facilities. Both defendants agreed to plead guilty. In July 2009, Judge Kosik rejected the proposed plea agreements because the defendants did not appear to accept responsibility for their conduct.
In September 2009 and September 2010, a grand jury in Harrisburg returned superseding indictments charging both defendants with racketeering, honest services mail fraud, money laundering, extortion, bribery, tax violations, and conspiracy. The government also sought the forfeiture of approximately $2.8 million in assets allegedly acquired by the defendants through racketeering and money laundering. In response to the United States Supreme Court’s 2010 decision in United States v. Skilling, the 2010 indictment specifically charged that bribes and kickbacks were paid to the defendants.
Conahan pleaded guilty to racketeering conspiracy in April 2010. After a jury trial in February 2011 Ciavarella was found guilty on 12 counts, including racketeering and tax fraud. Ciavarella was sentenced to 28 years’ imprisonment on August 11, 2011.
Loan From Former Client Violated Ethics Rules
The New York Appellate Division for the First Judicial Department has held that an attorney's acceptance of a loan from a former client violated the business tranasctions with a client prohibition.
...in August 2002, respondent solicited and accepted an unsecured, interest-free loan of $50,000 from Vartan Harutunian, a former client. Respondent had represented Harutunian, a former police detective, as plaintiff in a lawsuit arising from a motorcycle accident in which Harutunian had been seriously injured. Respondent had settled Harutunian's personal injury action for $4.5 million in August 2001, a year before the loan in question was made. In July 2002, only about two weeks before respondent solicited the loan, Harutunian called respondent for advice about how to respond to a demand for reimbursement from his medical insurance carrier. Respondent advised Harutunian to negotiate with the insurer but had no further involvement in that matter.
It is undisputed that the terms of the August 2002 loan were not reduced to writing; that respondent did not advise Harutunian to consult with independent counsel concerning the loan; and that respondent did not obtain Harutunian's written consent to the terms of the loan or to respondent's inherent conflict of interest in the transaction. It is also plain that the terms of the loan —- no collateral, no interest, and no due date for repayment —- were objectively unfair to Harutunian.
The court agreed with a hearing panel that the referee erred in rejecting the charge:
We agree with the Hearing Panel that, under the particular circumstances of this case, respondent's conduct violated DR 5-104(A), notwithstanding that Harutunian was no longer his client at the time of the loan transaction. Although the attorney-client relationship had terminated with the settlement of Harutunian's personal injury action in August 2001, the Hearing Panel correctly observed the presence of a number of factors supporting its determination that, at the time he lent respondent $50,000 in August 2002, Harutunian still "reasonably expect[ed] [r]espondent to exercise professional judgment for the protection of [his] interest," so as to render DR 5-104(A) applicable. The relevant factors are as follows: (1) in August 2002, "Harutunian still regarded [r]espondent as his lawyer," as demonstrated by Harutunian's call to respondent for advice about his insurer's demand for reimbursement during the previous month; (2) respondent asked Harutunian for the loan in his law office, "amidst the trappings of their attorney-client relationship"; (3) respondent knew that Harutunian was in a position to lend a substantial sum of money as a result of having represented him in the personal injury action; (4) Harutunian (who said he had never before lent anyone more than $20) was willing to make the loan largely because of the attorney-client relationship; (5) Harutunian's desire to help respondent (who represented that he needed the loan to deal with a tax problem) was "very likely related to the gratitude that he felt towards [r]espondent for the excellent recovery [r]espondent had obtained for him a year earlier"; and (6) Harutunian was willing to make the loan without consulting another attorney because of his trust in respondent arising from the attorney-client relationship.
The attorney was suspended for three months. (Mike Frisch)
Privilege In Bad Faith Claim Against Insurer
Answering a question certified from the Fourth District Court of Appeals, the Florida Supreme Court has held that the attorney-client privilege prevents discovery of privileged communications between an insurer-defendant and its counsel when an insured party brings a claim of bad faith against the insurer. The court had previously held that the work product doctrine did not preclude discovery in such actions.
The court further held the privilege may not apply when the insurer retains counsel to both investigate the underlying claim and render legal advice:
Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to [the prior decision] and did not involve the rendering of legal advice, then that material is discoverable.
Uninsured And Indefinitely Suspended
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio has imposed an indefinite suspension against the law license of [a] South Euclid attorney...for multiple violations of state attorney discipline rules in his handling of a deceased client’s estate tax return. The Court also found that [the attorney] failed to notify his clients that he did not maintain malpractice insurance, and failed to respond to inquiries from disciplinary authorities in connection with his misconduct.
In a 6-1 per curiam decision announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] agreed to represent the estate of a long time client after the client’s death, but neglected and mishandled the filing of an estate tax return over an 18-month period, resulting in an assessment against the estate by the Internal Revenue Service of penalties and interest totaling more than $451,000. When the estate sued [him] for malpractice, he failed to file an answer. The estate was awarded a default judgment against [him] for the amount of the IRS penalties and interest, but [he] did not satisfy that judgment and subsequently admitted that he had not maintained professional liability insurance and had not notified any of his clients of that fact, as required by state attorney discipline rules.
When a disciplinary grievance was filed against [him], he failed to respond to multiple inquiries from the Office of Disciplinary Counsel until a subpoena was issued to compel his appearance. Nittskoff later failed to answer the formal complaint filed against him with the Board of Commissioners, and the board ultimately considered the charges against him through default proceedings.
The Court’s lead opinion, which was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown, held that an indefinite suspension was the appropriate sanction for [his] misconduct based on prior cases in which a similar penalty has been imposed for neglect of entrusted client legal matters combined with failure of the offending attorney to cooperate with the investigation of his misconduct. The Court also ordered that [he] must satisfy the $451,000 civil judgment against him as well as submit quarterly progress reports as conditions of reinstatement.
Justice Paul E. Pfeifer entered a dissent in which he noted that most of the cases cited by the majority involved attorneys whose neglect harmed more than one client. Justice Pfeifer wrote that in his view the sanction recommended by the disciplinary board, a six-month license suspension, was the appropriate penalty for Nittskoff’s rule violations.
The opinion is linked here. The dissenting justice viewed the case, at core, as a "garden-variety malpractice case."(Mike Frisch)
Innocence Disclosure Rule Proposed In D.C.
The District of Columbia Bar has posted a notice for comments on proposed revisions to the D.C. Rules of Professional Conduct.
One of the proposals is for a new rule (designated as Rule 8.6):
Adopt a new Rule 8.6 to require lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer.
The District of Columbia Court of Appeals has disbarred an attorney originally charged with 100 violations of ethics rules in the course of representing 11 clients in immigration matters. The court agreed with the Board on Professional Responsibility that 94 violations were proven by clear and convincing evidence.
The court also found that the attorney engaged in conduct that seriously interfered with the administration of justice (note that D.C.'s version of Rule 8.4(d) does not track exactly the formulation of the Model Rule) by failing to respond to Bar Counsel's requests for information. The board had held that the rule cannot be violated unless Bar Counsel obtains a board order compelling a response.
The court disagreed, relying on an earlier decision that resolved the issue. (Mike Frisch)
November 9, 2011
He Needed The Money
A disbarment order is summarized in the Utah Bar Journal:
On August 1, 2011, the Honorable L.A. Dever, Third District Court, entered Findings of Fact, Conclusions of law, and Order of Disbarment against Thomas V. Rasmussen for previously violating the Court’s Order of Sanction. Mr. Rasmussen has appealed the sanction to the Utah Supreme Court.
A Sanction Order was issued by the Court on July 21, 2010. The Order provided that Rasmussen was suspended for one year with all but 181 days suspended. Pursuant to Rule 14-526(a) of the Rules of Discipline and Disability, the effective date was thirty days later on August 20, 2010. The thirty-day period provided by the Rule is to allow Mr. Rasmussen the time to wind down his practice and cease representing clients.
Mr. Rasmussen continued to practice beyond the August 20th deadline. During the period of suspension Rasmussen made thirty-six appearances in seventeen courts. There were eleven cases where Rasmussen entered an appearance on the case after the effective date of his suspension and there were nine cases where he appeared where charges were not even filed against his clients until after the effective date of his suspension. This establishes Mr. Rasmussen was taking on new matters during his suspension.
Rasmussen filed with the Court an affidavit stating that during the period of suspension he had not practiced law. The affidavit was not truthful.
Rasmussen stated in Court that he violated the suspension Order. His position was that because he needed money he had to violate the Order and practice law.
Not the best of explanations for violating a court order. (Mike Frisch)
Proceed With Caution
The Minnesota Supreme Court has affirmed the dismissal of ethics charges against a district court judge.
The judge was accused by the Board of Judicial Standards of "creating an appearence of impropriety during an omnibus hearing in a DWI case. The Board asserts, among other things, that [the judge] ordered a criminal defense attorney to write a letter of apology for allegedly impugning the integrity of a police officer during the attorney's oral argument at the omnibus hearing."
The court affirmed findings below of insufficient evidence of an impropriety. The court also found that the judge's contact with the court reporter was not prohibited but that "a judge contacting a potential witness must proceed with considerable caution, particularly when contacting a subordinate employee."
The board had appealed the dismissal. (Mike Frisch)
An Explanation, Not An Excuse
The Rhode Island Supreme Court has imposed a one-year suspension of an attorney who commingled and converted part of the proceeds of a civil settlement. The converted funds were set aside to pay medical bills.
The attorney attributed the misconduct to alcohol and drug abuse.
We commend the respondent for seeking treatment. However, while his abuse of alcohol and drugs may explain his behavior, it is not an excuse.
The attorney paid the medical bills prior to the hearing before the disciplinary boartd. He is also serving a Rhode Island suspension based on discipline imposed in Florida. (Mike Frisch)
November 8, 2011
An Area Of Agreement
The Illinois Administrator has filed an amended complaint alleging improper exparte communications between the accused and an arbitrator. The complaint states that the two were social friends who e-mailed each other on personal matters.
The complaint contends that the e-mails between them also involved matters that the attorney had before the arbitrator. One highlight:
On May 27, 2009, Respondent sent [arbitrator] Teague an email, regarding a pending case she had with attorney Mark [last name unspecified], in which Respondent stated that "He’s an ass." On May 27, 2009, Teague sent an email back to Respondent and stated "And yes, Mark is an ass."
The attorney also is alleged to have made false statements in the disciplinary matter. (Mike Frisch)
Michael Cassidy Wins Fred Zacharias Award
Breaking news shared by Touro Law Center's Samuel J. Levine, announcing the second recipient of this scholarship award in our field:
The winner of the second annual Fred C. Zacharias Memorial Prize for
Scholarship in Professional Responsibility is Michael Cassidy, for Plea
Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures.
The Prize will be presented at the Section Lunch of the AALS Section on
Professional Responsibility, which will take place on Friday, January 6,
2012, at 12:30 p.m., at American University Law School.
A great way to remember Fred, who is missed. [Alan Childress]
November 8, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility | Permalink | Comments (0) | TrackBack
"Good Deed" Gets Reprimand
The South Carolina Supreme Court has imposed a public reprimand of an attorney peredicated on the following facts:
In November 2009, respondent agreed to assist Client in recovering funds from her former employer. Client believed she was due funds from unused vacation time. In a meeting with Client's former employer, respondent learned that, pursuant to company policy, Client was not owed any money for unused vacation time.
Over the next year, Client regularly called respondent's office requesting updates regarding her claim. Respondent assured Client that the matter was progressing even though respondent knew the former employer denied any liability and that Client did not have a viable claim.
On December 17, 2010, respondent wrote Client explaining he had an offer of $592.32 representing 49.36 hours at $12.00 per hour. Additionally, the letter stated respondent had over two hours of work on the case, but he was willing to reduce his fee to $150.00 so Client's total recovery would be $442.32. This letter contained false information because respondent had not pursued the matter beyond his initial meeting with the former employer and had not received a settlement offer. The letter requested Client advise respondent if she would accept the offer.
When respondent had not heard from Client by December 22, 2010, he sent her another letter. In this undated letter, respondent advised Client of the same offer and his reduction in fee. Respondent also noted that he knew Client would like to have the money by Christmas.
Upon her receipt of the letter in mid-December 2010, Client called respondent and accepted the purported offer. Despite Client's prompt response to respondent's letter, respondent did not communicate with Client again for almost two months. On February 18, 2011, respondent wrote to Client apologizing for the delay and providing her with a check in the amount of $442.32 written on his general account. Respondent represents he paid personal funds to Client because he knew she needed money.
Even when motivated by a desire to help the client financially, lack of diligence and candor can result in public discipline. (Mike Frisch)
The Massachusetts Supreme Judicial Court has imposed reciprocal discipline based on an attorney's suspension by the United States Patent & Trademark Office.
According to this summary, the attorney allowed an application to be abandoned and then engaged in a false filing in an attempt to revive it.
The Massachusetts sanction tracks that imposed by the PTO. The attorney is suspended for two years but may seek reinstatement on probation after two months. (Mike Frisch)
Neglected Clients Disagree On Consent Disposition
A District of Columbia Hearing Committee has approved a consent disposition of a six-month suspension with fitness for an attorney's neglect of two matters. The attorney has a lengthy history of discipline for similar conduct.
The disposition will require the attorney to petition for reinstatement and demonstrate fitness to practice. Thus, the result protects the public from future misconduct.
This disposition makes perfect sense and should be adopted by the D.C. Court of Appeals. The hearing committee fully exlains the misconduct and articulates clear reasons in support of the result.
Notably, the D.C. procedure for consent dispositions permits the complainants to express their views. Here, one favored the disposition and felt that the attorney had done more good than harm over a long career. The other wanted disbarment.
The case is In re Mance and can be found through this link. (Mike Frisch)