December 9, 2011
Professional Courtesy, Conduct Prejudicial
A complaint filed by the Illinois Administrator alleges misconduct by a former associate judge on behalf of a fellow judge's daughter:
On April 30, 2010, Judge Perrin’s daughter, a minor, received a traffic citation for allegedly disobeying a road closure sign in Leland Grove, Illinois, in Sangamon County. The matter was docketed as case no. 2010 TR 017760 in the Seventh Judicial Circuit, and a first appearance was scheduled for Monday, June 7, 2010, before Respondent.
On June 2, 2010, on the sixth floor of the Sangamon County building, Respondent and Judge Perrin conversed on court business, and Respondent complained about the unusually large traffic call that he had on the coming Monday. Judge Perrin told Respondent that his daughter’s case was on that docket and that it conflicted with a missionary trip that she had planned for that week. Respondent told Judge Perrin that he would continue his daughter’s case.
On June 2, 2010, following his above-described conversation with Judge Perrin, Respondent directed the Circuit Clerk’s office to send the file in case no. 2010 TR 017760 to his chambers. Respondent received the file later the same day.
On or about June 4, 2010, the Honorable John Mehlick ("Judge Mehlick"), who was another associate judge, agreed to take one-half of the traffic call scheduled for Monday, June 7. The Court Administrator assigned Respondent to take the cases of defendants whose last names began with letters A through O, and Judge Mehlick to take the cases of defendants whose last names began with letters P through Z.
At no time did Respondent forward the Circuit Clerk’s file in case no. 2010 TR 017760 to Judge Mehlick. Respondent retained the file in his chambers.
On June 7, 2010, Respondent entered an order on the cover of the Circuit Clerk’s file in case no. 2010 TR 017760 dismissing the citation, and he checked boxes on the file cover that stated that the citation was dismissed on the motion of the State due to insufficient evidence. Following his court call, Respondent placed the file with other Circuit Court files from his call in which he had entered orders, and he returned them to the Circuit Clerk’s office.
Respondent’s above-described representations that the State had moved to dismiss case no. 2010 TR 017760 and that he had allowed the motion were false, and he knew that they were false. At no time had the State’s Attorney’s office moved for the dismissal of the case.
Respondent intended by his actions...to deceive the Circuit Clerk, the public and others about the basis for the dismissal of Judge Perrin’s daughter’s traffic citation and conceal his ex parte actions.
The complaint alleges that the conduct was discovered and the judge's daughter pleaded guilty. She was sentenced to a $75 fine.
SJR.com had this report on the decision earlier this year not to impose judicial discipline on Judge Perrin. (Mike Frisch)
False Claim Of Anti-Semitic Slur Draws Suspension
The New York Appellate Division for the First Judicial Department has imposed a six-month suspension of an attorney for false claims against an officer who had stopped him for speeding:
This disciplinary proceeding arises out of a traffic stop which occurred in New Jersey on July 5, 2007. Respondent, who is an orthodox Jew, was stopped for speeding by a New Jersey State Trooper and given a summons for going 84 mph in a 55 mph zone. Unbeknownst to respondent and his wife, who was in the passenger seat, the stop was videotaped from a camera in the trooper's car. Further, a microphone on the trooper's uniform recorded everything that the trooper said, although it did not capture respondent's statements.
Six days later, the attorney wrote a letter to the traffic court on the stationary of the firm where he was employed as an associate. The letter denied he was speeding and asserted that the officer had called him a "jew kike."
A police investigation exonerated the officer. The attorney later admitted that he had lied.
As to sanction:
The Referee found that while writing the letter was a single aberrational act, it was exacerbated by respondent's statements, required to be truthful, in his telephonic interview with [the officer investigating his claims] and by his perpetration of the theme of anti-Semitic behavior in his answer to the complaint. He further stated that he believed that respondent lacked the intent to harm the trooper, and credited respondent's psychiatrist's testimony that his accusation was an "impulsive" action even though six days had elapsed since he had received the ticket.
The Referee further stated that he believed that respondent was sincerely remorseful for the incident and that his apology to the trooper was genuine. The Referee accepted respondent's psychiatrist's opinion that respondent's personality disorders were legion and strong, and was persuaded that respondent's writing the charge that the trooper used an ethnic slur was impulsive. The Referee further asserted that, while perhaps not technically the "cause" of respondent's misconduct, his many personality disorders, exacerbated by the stress of his job, his marital problems and especially the problems of his oldest child, had a severe impact on his behavior. The Referee credited respondent for his devotion to therapy and continued attendance at therapy sessions, which appeared to be having a positive impact. The Referee observed that the trooper was not directly harmed by respondent's behavior, insofar as he was not disciplined, suspended, docked pay or benefits or even forced to hire a lawyer. On the other hand, he noted that the officer had nine months of emotional stress while the Internal Affairs investigation was ongoing and, though the disparate treatment claim against him was determined to be unfounded, the incident would be documented in his personnel file forever, which could affect or at least delay future consideration of a request for transfer or a promotion. Recognizing the financial hardship which a suspension would cause respondent, the Referee nevertheless recommended a six-month suspension.
Here, respondent cavalierly attributed anti-Semitic slurs to an innocent person in a manner which could have had devastating consequences to that person's career. This act alone warrants a harsh sanction, not to mention that it was done to gain an advantage in an administrative proceeding. Notwithstanding the mitigating evidence and respondent's apparently sincere remorse, his behavior was reckless and reflects poorly on the bar. Under the circumstances, censure or admonition is simply too lenient a penalty.
The Limits Of Compassion
The full court disagreed with a single justice's conclusion that six partners of Verrill Dana LLP had not violated ethical obligations with respect to the misconduct of a partner who had repeatedly misappropriated client funds:
We recognize that these six attorneys, comprising Verrill Dana's execeutive committee, were caught completely "off guard" by [the partner's] conduct. We also recognize that they dealt with [him] with compassion, and there is no suggestion of bad faith in their failure to refer his conduct to Bar Counsel or to individuals in the firm who were more capable of assessing the need for action, such as the firm's own counsel. However, we cannot ignore that, when faced with the significant malfeasance of a self-destructing partner, none of these attorneys even recognized that the Maine Code of Professional Responsibility required them to contemplate reporting that partner's conduct and subsequent breakdown. Notwithstanding the single justice's factual findings, when a firm's practices and policies do not require the firm's leadership to at least consider whether it has an ethical obligation to report a colleague in the circumstances presented by this case, we are compelled to find, as a matter of law, that the firm failed to have in effect "measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility."
The matter was remanded for a sanction determination. (Mike Frisch)
One Out Of Three Doesn't Earn The Fee
The New York Appellate Division for the Second Judicial Department affirmed an award of damages to a former client who had sued his attorney for breach of contract:
Pursuant to a May 28, 2002, retainer agreement, the defendant was required to perform three tasks for the plaintiff in exchange for an attorney's fee in the sum of $20,000. The defendant failed to perform two of the three agreed-upon tasks, despite having been paid in full. The plaintiff informed the defendant by letter dated February 8, 2006, that he was discharging the defendant for cause, and sought the return of any unearned fees. The defendant denied the plaintiff's request for the return of any unearned fees, prompting the plaintiff to file a pro se complaint alleging breach of contract. Based on the evidence that the defendant had not performed all of the agreed upon tasks under the terms of the retainer agreement, the Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint and, upon searching the record, awarded summary judgment to the plaintiff on the issue of liability. Following an inquest on damages, the Supreme Court entered judgment in favor of the plaintiff and against the defendant in the principal sum of $13,333.34.
On appeal, the defendant provides no valid basis for reversing the judgment. It is clear that the defendant made a promise to perform, but there was no subsequent performance with respect to two of the three tasks that formed the basis for the $20,000 attorney's fee...
A Question Of Law
The Illinois Review Board has concluded (contrary to a Hearing Board) that an attorney made false statements in court pleadings. The attorney represented plaintiffs in a New York class action. The pleadings at issue were filed in federal court in Illinois.
The Review Board:
The question...becomes whether the statement was a statement of fact or law; whether Respondent’s statement was false; and whether Respondent knew or should have known that it was false. The Hearing Board concluded that Respondent’s assertion that Judge Block’s order was a "final judgment" which "awarded’’ Respondent $149,000 was merely a legal argument in a pleading concerning Respondent’s wishes regarding the impact of the court’s order rather than constituting any knowing misrepresentation regarding the order’s intent or content.
We disagree and find that the Hearing Board’s conclusion was clearly erroneous. We first note that Respondent did not characterize his statements in the pleadings themselves as argument or as a prayer for relief. He made the statements in portions of the motion usually reserved for factual summations. In the pleading before Judge St. Eve, the statement is made in the section Respondent entitled, "Nature of the Action". In the pleading before Judge Pallmeyer the statement is made in the opening paragraphs, as opposed to the accompanying memorandum of law. The court was entitled to accurate information regarding the proceedings before Judge Block; to hold otherwise would place a burden on the courts to sift through statements made by lawyers in pleadings and compare the statements with the underlying record to determine the truth...
there is no question that Respondent’s statements in the two pleadings that the Eckhaus "final judgment" "awarded" Respondent $149,000 were false. As found by the court, the Eckhaus order by Judge Block was not a final judgment. Nor can the order by Judge Block be read to award Respondent $149,000. There is no dispute that Judge Block never intended to give or grant Respondent $149,000; Respondent contends that the order itself, directing that the payment of $298,000 be made jointly to Mr. DiTommaso, Mr. Lubin and Respondent, must be read to so grant him $149,000. But Respondent’s contention does not make sense. A direction to make payment of $298,000 to three individuals jointly could not so be read. Respondent knew the statement was false, because he attended the hearing before Judge Block. He admits he was aware of the Judge’s intentions, and he read the judge’s order. In aggravation, he also knew he was not arguably entitled to $149,000. Respondent saw an opportunity when the check was mistakenly issued with two payees to obtain even more than he had originally requested.
Accordingly, we conclude that Respondent violated Rule 3.3(a)(1) by knowingly making false statements of material fact to Judge Pallmeyer and Judge St. Eve. Respondent also violated Rule 8.4(a)(5) by engaging in conduct that tends to defeat the administration of justice...
The Board recommends a four-month suspension. (Mike Frisch)
In a case with a rather tortured procedural history, the New Jersey Supreme Court has imposed a three-month suspension of an attorney for his "failure to safeguard a legal fee that belonged to his former firm."
A stipulated disposition was submitted to the court in January 2008. The court heard argument and remanded the matter to the Office of Attorney Ethics (OAE) to charge the attorney with knowing misappropriation. OAE sought reconsideration.
The court again heard argument but rejected a reprimand sanction. The court reaffirmed its order of remand.
The Disciplinary Review Board (DRB) then "recommended that the court appoint a special prosecutor and a special master, both of whom should be well-versed in the law of knowing misappropriation." OAE again appealed.
The court rejected OAE's appeal and remanded the case with an order that OAE have a "special investigator" determine if the attorney should be charged with knowing misappropriation. OAE complied. The special investigator reported to the court that a formal complaint alleging additional misconduct was unwarranted and that the matter should be remanded to determine the sanction.
The DRB then proposed a six-month suspension, rejecting OAE's argument that there is a difference between misappropriation from a client and from a law firm:
Knowing misappropriation is knowing misappropriation, regardless of the character of the funds at stake...Simply stated, since 1993, knowing misappropriation of law firm funds and knowing misappropriation of client or trust funds is no different.
The attorney had worked at Ravin, Sarasohn and moved to Lowenstein Sandler. He gave advice in bankruptcy matters to Milberg Weiss while at the Ravin firm. After his move, he received a fee of $217,639.50 for work in a matter that was in part due to the Ravin firm. The disciplinary violations involved his handling of the fee.
He deposited the fee into a personal account and paid the share due to Lowenstein Sandler. He did not advise the Ravin firm of the receipt of fees or pay them the amount to which the firm was entitled. He eventually paid the Ravin firm (which was aware of the ongoing reopresentation and its entitlment to share in fees) a portion of the fee it was due. (Mike Frisch)
December 8, 2011
Hazard's Opinions Sufficient To Withstand Summary Judgment Motion
The District of Columbia Court of Appeals has reversed the grant of summary judgment to three defendants in a legal malpractice case. The attorneys had represented the client in an employment case.
The court held that the opinions of Professor Geoffrey Hazard were sufficient to defeat the motion. Although not an employment law expert, the professor is an expert in legal ethics and the general conduct of litigation. These areas of expertise were sufficient to create issues for a jury. (Mike Frisch)
"I Don't Want"
The Illinois Administrator has filed a complaint alleging misconduct by an attorney who took and passed the bar examination in 2003.
According to the complaint, there was a delay in securing admission because of character and fitness issues:
Respondent’s application was referred to the Committee on Character and Fitness of the First Judicial District due to Respondent’s on-going credit problems, including unpaid medical bills, overdue credit card accounts, and a collection lawsuit filed against him; Respondent’s 1999 criminal arrest for patronizing a prostitute; Respondent’s non-disclosure to the two law schools he attended of his criminal arrest, even though both law school applications asked whether Respondent had ever been arrested; and a significant number of traffic offenses, including many traffic citations issued while he was attending law school.
He was admitted in 2006. Here, he is charged with failing to reveal a civil complaint alleging fraud filed between the period he passed and his admission.
There are also charges that he failed to respond to a bar complaint alleging mortgage fraud:
On February 28, March 2, March 4, and March 8, 2011, Commission Investigator James Easoz ("Easoz") attempted to personally serve Respondent at Respondent’s home address with a subpoena duces tecum commanding Respondent’s appearance at the ARDC on March 18, 2011. On each occasion, Easoz went to the condominium building where Respondent resided, and the doorman at the condominium building called Respondent’s condominium unit but Respondent did not answer the call. On each occasion, Easoz left a business card with the doorman of Respondent’s condominium building, and on each occasion the doorman agreed to place the business card in Respondent’s mailbox. On each occasion, the doorman placed the business card in Respondent’s mailbox.
On March 8, 2011, Easoz obtained Respondent’s current phone number from the doorman at the condominium building where Respondent resided. On March 9, March 11, and March 14, 2011, Easoz attempted to reach Respondent by telephone at his current phone number. On each occasion Easoz phoned Respondent, he did not answer the call, and Easoz left a voicemail message requesting that Respondent contact him. Respondent received each of the voicemail messages that Easoz left for him, but at no time did Respondent return Easoz’ calls.
On March 15, 2011, Easoz returned to Respondent’s home address to again attempt to personally serve Respondent with a subpoena duces tecum commanding Respondent’s appearance at the ARDC. On that date, the doorman gave Easoz an envelope from Respondent containing one of the business cards Easoz previously left for Respondent, with the hand-written note "I don’t want" scrawled across the front of the envelope and signed "Ancuta", and Respondent’s condominium number underneath his name. Easoz returned the envelope to the doorman, and told the doorman to give the envelope back to Respondent, as it was important that Respondent contact the ARDC.
On March 16, 2011, the Administrator sent a subpoena duces tecum by certified and regular mail to Respondent at Respondent’s home address. The subpoena duces tecum commanded Respondent’s appearance on April 7, 2011 at 10:00 a.m. at the Chicago offices of the Attorney Registration and Disciplinary Commission and the production of certain documents at that time. The U.S. Postal Service notified Respondent of the certified letter, but Respondent never claimed it. On April 11, 2011, the subpoena duces tecum which had been sent by certified mail was returned to the Administrator by the U.S. Postal Service with the notation "unclaimed." Respondent received the subpoena duces tecum sent to Respondent by regular mail.
As of July 6, 2011, the date the Inquiry Board voted to file this complaint against Respondent, Respondent had not produced the information or documents requested in the Administrator’s letters or subpoena duces tecum, nor had he appeared to provide testimony in response to the subpoena duces tecum. Counsel for the Administrator never waived or excused Respondent’s production of information and documents, or his appearance at the Chicago offices of the Attorney Registration and Disciplinary Commission.
December 7, 2011
The Golden Rule: No Golden Rule Arguments
A conviction of a criminal defendant for the murder of his wife was reversed by the Mississippi Supreme Court. The defendant had admitted that he pointed a loaded gun at the deceased.
The prosecutor in closing rebuttal argument made an improper "golden-rule" argument that repeatedly asked the jurors how they would feel with a loaded shotgun pointed at their face.
The court here found that the argument was improper and warranted a new trial. (Mike Frisch)
Reprimand and Costs
An attorney who failed to provide competent representation in a matter has been publicly reprimanded by the Wisconsin Supreme Court.
Concern also was expressed about the attorney's non-cooperation with the bar's investigation:
The referee noted he was troubled by the fact that Attorney P..., with no good explanation, has again failed to cooperate with an OLR investigation. The referee stated that the "only conclusion I can reach is that [Attorney P.] simply ignored his duties and responsibilities in relation to the ancillary probate proceeding he had agreed to undertake. He also, for the second time, ignored his duties as a Wisconsin attorney to promptly and timely respond to a grievance as requested by OLR." The referee found no evidence that Attorney P. had any kind of improper motive in failing to handle the ancillary probate proceeding or failing to timely respond to OLR's investigation, but concluded that Attorney P. "simply did not recognize the urgency and his responsibility to do so in either case." On balance the referee recommended, and we agree, that a public reprimand is appropriate in this case. The referee also recommended, and we agree, that Attorney P. should be responsible for all costs of this disciplinary proceeding which total $5,179.43 as of October 5, 2011.
December 6, 2011
An attorney who was suspended in 2004 in North Carolina filed a motion to correct the bar's records, claiming that he should be listed as reinstated after five years.
The North Carolina Court of Appeals disagreed, finding that the motion was an impermissible collateral attack on the order of suspension. If the movant wants to be reinstated, he must petition under the governing rules and meet the reinstatement criteria. (Mike Frisch)
Former Pharmacist Seeks Bar Admission
The web page of the Ohio Supreme Court has this summary of a case to be argued today:
The Supreme Court of Ohio’s Board on Character and Fitness has recommended that the application of Daniel P. Poignon of Toledo to take the Ohio Bar Examination be disapproved, and that Poignon not be permitted to register as a candidate for admission to the practice of law in the future. That recommendation was based on a report filed with the board by the Toledo Bar Association and the board’s own determination that Poignon does not meet the character and fitness requirements for admission to the practice of law in Ohio.
The board noted that Poignon was previously licensed as a pharmacist in 1984 and worked at several jobs in that field over a 15 year period, but was dismissed from several positions for improper handling or use of prescription medications and had his pharmacy license permanently revoked by the Ohio Board of Pharmacy in 2000 based on two felony convictions for theft of drugs from a Toledo pharmacy where he was employed. After completing a term in a correctional treatment facility and failing in an effort to compel the pharmacy board to allow him to apply for reinstatement, Poignon obtained a certificate in paralegal studies and worked for a time at a Toledo law firm. He was admitted to the University of Toledo Law School in 2007 and graduated in 2010.
Pursuant to its duties to certify to the Supreme Court the character and fitness of prospective applicants for admission to Ohio bar, the Toledo Bar Association admissions committee reviewed Poignon’s application to take the state bar examination and interviewed him. The committee subsequently recommended against allowing Poignon to take the 2012 bar examination, based on his past conduct involving fraud, deceit and misrepresentation; failure to comply with the ethical rules of another profession; failure to demonstrate personal accountability for his prior drug-related offenses; and neglect of his personal financial responsibilities over the 10 years since he completed his criminal sentence. The Board of Commissioners on Character and Fitness reviewed the bar association’s recommendation and Poignon’s appeal, and recommended not only that that the Court deny his current application for admission to the bar, but also that he not be permitted to reapply in the future.
Poignon has filed objections to the board’s findings and recommendation that he be permanently barred from reapplying for admission to the bar. While acknowledging that his recent lack of regular employment and unmet financial obligations, in combination with his past conduct, do not demonstrate current fitness for admission to the bar, he urges the Court not to impose a lifetime ban against him but rather to reserve judgment and allow him to take further actions that show his ability to be a competent and ethical attorney.
Special Counsel for the Board of Commissioners has filed a response to Poignon’s objections in which counsel disputes Poignon’s claims that the board’s recommendation placed too much emphasis on potential negative public perceptions that might result from the admission as an attorney of a person who was previously stripped of another professional license. Counsel argues that the evidence reviewed by the board showed that Poignon was involved in the theft and/or abuse of prescription drugs for most of the 15 years he was licensed as a pharmacist, that he continues to blame his former employers, coworkers, attorneys and others for the conduct that resulted in his felony convictions, and that he has not held regular employment for more than a few months or demonstrated personal financial responsibility during the 10 years since he completed his sentence in 2001. Counsel asserts that these factors support the board’s conclusion that Poignon failed to demonstrate either his current fitness or a reasonable likelihood of achieving future fitness for admission to the practice of law.
Fees For Non-Lawyer Referrals May Be OK
The Legal Ethics Committee of the District of Columbia Bar has just issued an opinion on the circumstances under which a lawyer may accept a fee for referring a client to a non-lawyer entity:
A lawyer who refers a client to a non–lawyer service provider such as a financial services firm may accept compensation from the provider for the referral so long as the criteria of Rule 1.7(c) and, if applicable, Rules 1.8(a) and 5.7 are satisfied. Those criteria are exacting, however, and the arrangement may be beyond the lawyer’s malpractice coverage even if permitted by the Rules.
The opinion overrules in part an earlier opinion of the committee.
The arrangement must comply with rules governing conflicts of interest (Rule 1.7), business transactions with clients (rule 1.8) and responsibilities regarding law-related services (Rule 5.7).
The Moment Of Exoneration
The New Jersey Supreme Court has refined the concept of "exoneration" for purposes of a criminal defendant's claim of legal malpractice against defense counsel.
The malpractice plaintiff was convicted of drug offenses in 1999. In October 2007, the conviction was reversed for ineffective assistance of counsel. In July 2008, the indictment was dismissed. Notice of a tort claim was served in November 2008. He then filed suit against the public defender.
The court here held that the suit was filed within the statute of limitations because the moment of exoneration was dismissal of the indictment, not reversal of the conviction. However, the lower court must determine whether the notice of tort claim was filed beyone the required 90 days as a result of "extraordinary circumstances." (Mike Frisch)
December 5, 2011
Unauthorized Suit Results In Interim Suspension
The Vermont Supreme Court has imposed an immediate interim suspension of an attorney based on evidence that she had filed a medical malpractice case without the authorization of the client. The suit claimed that the client was "currently incapable of bringing this lawsuit in her weakened condition and against negative influence." The client disagreed.
The court concluded that the attorney "seriously misapprends" the import of Rule 1.14 relating to a client under disability. The client did not wish the suit filed and retained counsel to voluntarily dismiss and expunge the complaint.
The court also found that the attorney's filings raised serious concerns about her fitness to practice law. She asserted that she got no respect from Vermont courts because she had attended Howard University School of Law and that "it was necessary to file the lawsuit because of anti-Semitism among the bar directed against the plaintiff." (Mike Frisch)
No Liability For Home Plate Collision
The South Carolina Supreme Court has held that a baserunner who collided at home plate with the catcher in a Boy Scout softball game is not liable for damages. Both catcher and baserunner were fathers who participated in the game.
In March 2004, David Cole and his son, David Jr., who was a member of Cub Scout Pack 48, attended a Cub Scout family camping trip. During the course of the trip, Cole and David Jr. participated in a father-son, pick-up softball game. Jeff Wagner and his son were also on the camping trip and were playing on the opposite team from the Coles in the softball game. Although one of the older boys had been playing catcher, Cole took over the position because he was afraid the boy would be hit by a foul ball or by the batter.
Neither of the teams kept score, and during each inning everyone was allowed to bat. Apparently, some of the fathers were playing too aggressively in the minds of some participants and hitting the ball with full swings. One of the Scout leaders, Keith Corley, briefly interrupted the game and asked them to play more safely, fearing that they were putting the scouts in danger.
During Wagner's next turn at bat, he hit a double. Another father came up to bat after him and hit the ball into the outfield, potentially allowing Wagner to score. As Wagner reached home plate, he collided with Cole, who had moved on top of the plate, thereby placing his body directly in the baseline. Wagner was running so fast that he was unable to stop or change directions in time to avoid Cole. Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib. Cole suffered a closed head injury and was rendered semiconscious. He then began bleeding and went into convulsions. Cole had to be airlifted to Palmetto Richland Hospital where he spent two days in the intensive care unit. David Jr. witnessed the entire accident in fear that his father was going to die.
Cole and his wife Karen, personally and as guardian ad litem for David Jr. (collectively, Appellants), brought this action against Wagner, the Boy Scouts of America, Indian Waters Council of the Boy Scouts of America, Pack 48, and Faith Presbyterian Church for personal injury, loss of consortium, and negligent infliction of emotional distress. Wagner moved for summary judgment, contending he owed no duty to Cole because Cole assumed the risks incident to the sport of softball. The circuit court granted Wagner's motion, and this appeal followed.
Even assuming, arguendo, that Wagner's conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball. The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics. Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury. To the extent these risks inhere in the sport involved, we hold some recklessness by coparticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.
We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game. Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other. Cole does not allege that Wagner's conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner's conduct fell within the duty of care he owed to Cole as a coparticipant in the game.
Partners Disbarred For Solicitation Violations
Two law partners have been disbarred by the Georgia Supreme Court for solicitation and fee sharing with non-lawyers. The court noted that the case had been "zealously litigated since 2002."
The attorneys had paid "runners" to solicit cases from April 1995 through April 1999. the court found they had engaged in an organized scheme based on selfish motives and excpressed no remorse. The misconduct was serious:
...their conduct was egregious - they cast a wide net covering more than 1300 cases. Their scheme was highly organized and very lucrative; and it was not short-lived. They were motivated by greed and they are not remorseful.
The attorneys had relied on a federal district court decision that "in their view...legalized solicitation of clients, although [one of them] later acknowleged that the order only applied [to use of a non-lawyer to solicit]." They were approached by two chiropractors, who agreed to refer clients for a fee.
The federal court decision was overturned by the Eleventh Circuit.
Although one of the partners testified that they stopped the practices when the United States Supreme Court denied certiorari in the case, a long-time employee testified that it continued until federal agents searched their offices pursuant to a warrant and seized their "runner book."
A dissent would imposed a three-year suspension. (Mike Frisch)
December 4, 2011
Probate Judge Reprimanded For Delays
The Maine Supreme Judicial Court has ordered a reprimand of a probate judge who engaged in a pattern of "unacceptable delays" in at least five matters:
The most egregious of those violations involved a delay of nearly five years in the resolution of a matter involving family contact with a child. In several cases, parties waited over
fourteen and sixteen months for judicial decisions in matters that could and should
have been resolved much more expeditiously.
The court declined to impose a suspension, noting the judge's 22 years of honorable service. the misconduct was in part a product of limited resources and the judge's professional isolation in a rural area.
He also has instituted processes to address the issue of delay going forward. (Mike Frisch)