Saturday, February 5, 2011
Posted by Alan Childress
Becoming the first general law review to publish its current issues as an ebook (plus its traditional print volumes), the Stanford Law Review now includes Kindle and the other ebook formats in its distribution. I helped the editors digitize the first academic-year issue, Vol. 63, #1, as part of the "Quid Pro Books" project I discussed at Law Librarian Blog before. (They are the publisher, of course, not me--though one is tempted to insert an article...) SLR's Issue 2 ebook will soon follow.
For now, Issue 1 is available in the Amazon Kindle store (and its UK store); at Barnes & Noble for Nook; on the iPad with these apps and also Apple's iTunes bookstore; and in multiple formats including Sony, ePub, and rtf at Smashwords. This issue features articles by Ryan Scott (on sentencing disparity), Scott Hershovitz (what Harry Potter means to torts), Robert Cooter & Neil Siegel (collective federalism), and Brian Galle & Jonathan Klick (AMT tax). Hope it's a convenient way to keep up with scholarship for some, and a necessary adjustable font for others. Enjoy.
Other Quid Pro updates: latest releases in print and all ebook formats include Robert Rosen's Lawyers in Corporate Decision-Making (more soon on that, as very pertinent to the blog topic), and the latest book from Amitai Etzioni, Law in a New Key: Essays on Law and Society.
Also re-released are two classic books: (1) the sociological study (so far in digital, soon in paper), Neil Smelser's Sociological Theory; and (2) in print/digital in political science and criminal law, Stuart Scheingold, The Politics of Law and Order.
Friday, February 4, 2011
The Florida Supreme Court accepted a referee's findings that an attorney was in contempt of a suspension order as a result of his continuing practice of law but rejected the proposed sanction of, in effect, a concurrent suspension nunc pro tunc to the earlier three-year suspension. Finding the contempt to be more than a "technical" violation, the court imposed disbarment.
Three days after the suspension, the attorney appeared (along with counsel who took over his practice) in an immigration matter. Neither attorney advised the court of the suspension. He conceded that, after suspension, he continued to meet with clients and assist new counsel.
The court found no basis to depart from the presumptive sanction of disbarment.
Concurring, Justice Pariente disgreed with the principal opinion on a procedural default issue and chastised the Bar for its arguments on the point:
Bar counsel's inaccurate representations concerning the record are exceedingly troubling. All sides in bar prosecutions must conduct themselves according to the applicable rules, without misleading the opposing party or this court.
Words to warm the heart of any accused attorney who feels unfairly treated at the hands of a bar prosecutor. Justice Pariente notes that the representations persisted throughout oral argument and were not thereafter corrected. (Mike Frisch)
Well, almost. This blog, due I am sure to Mike's content and tenaciousness (and oh those headlines), was named Blog of the Month by Penn State. Here. Let's hope Mike has a less frilly outfit than last year on the red carpet. TMZ was brutal. [Alan Childress]
The Wisconsin Supreme Court has imposed a 60 day suspension with conditions on reinstatement in a matter in which the attorney had used a trust account for his own purposes after declaring bankruptcy. His problems multiplied when the trust account was closed by the bank for bad checks. The problems multiplied further when the bad checks were brought to the attention of the Bar and he failed to fully respond to the inquiries of the Office of Lawyer Regulation ("OLR")
The referee had considered evidence offered in mitigation:
At the hearing, Attorney...offered a number of explanations in an attempt to mitigate the sanction. The referee found those explanations fell generally into two categories: (1) the offenses, although committed, did not rise to the level of causing actual client harm; and (2) the offenses were related to various personal, business, physical health and emotional problems.
The referee determined the first category of Attorney...'s explanations was not persuasive. The referee concluded clients were not harmed because the bank had covered most of the overdrafts, but this did not mitigate Attorney...'s misconduct.
The referee found the second category of explanations more difficult to assess. The referee said Attorney...'s testimony was somewhat compelling as to his catastrophic life struggles and he had dealt with a number of life challenges during the time of the rule violations. The referee observed Attorney...'s testimony was professional and appropriate, and he did not contend he should be relieved of the consequences of his professional misconduct. The referee noted Attorney...'s personal circumstances may have called for a creative response for the imposition of discipline; Attorney, however, failed to file a post-hearing brief, although invited and required to do so. The referee found Attorney...'s failure to acknowledge communications after the hearing demonstrates he is not yet willing to do what is necessary to meet his professional responsibilities. The referee stated that although he was sympathetic to Attorney...'s daunting life circumstances, the record did not support a lesser sanction than called for by the facts of the misconduct.
The reinstatement conditions are not terribly onerous given the misconduct. As the referee recommended:
1. Attorney...must attend an OLR trust account management seminar within one year and successfully complete an exam following that seminar;
2. Attorney...must establish a new trust or fiduciary account prior to accepting client or third party funds in connection with client representation or in a fiduciary capacity; and
3. Upon establishing the new trust or fiduciary account, Attorney...must provide the OLR with the following: (a) a fully executed agreement to report overdrafts on the new trust or fiduciary account; (b) documentation establishing that Attorney...has a business account; and (c) quarterly reports regarding his trust and/or fiduciary account for a period of one year after establishing such an account, including any and all trust, fiduciary, and/or business account records requested by the OLR.
Thursday, February 3, 2011
The New York Appellate Division for the Third Judicial Department has imposed a one year suspension of an attorney convicted of official misconduct, a class A misdemeanor:
While serving as a Public Defender for a client, [the attorney] engaged in sexual relations with the client, thereby violating...provisions of the former Code of Professional Responsibility.
The Maryland Court of Special Appeals affirmed a criminal conviction nothwithstanding the prosecutor's improper statements to the jury in closing rebuttal argument. The prosecutor asked the jury why the defendant would "want a trial if he's already signed a confession." Then:
Guilty people have a right to trial. That's what we had today.
The court here found that the remarks were an isolated instance, that the trial court instructed the jury that arguments were not evidence, and there was overwhelming evidence of guilt. (Mike Frisch)
The Washington State Supreme Court adopted findings of its Disciplinary Board that an attorney had appeared ex parte before a judge without notice to opposing counsel, failed to disclose facts at that hearing and obtained relief by means of misrepresentation and deceit. The court rejected the attorney's factual contentions, finding sufficient evidence to support the factfinder's conclusion that her testimony was not credible. The court agreed with the proposed sanction of a 90 day suspension.
A concurring/dissenting opinion would double the suspension to 180 days. (Mike Frisch)
From the web page of the Virginia State Bar:
On January 20, 2011, the Virginia State Bar Disciplinary Board summarily suspended [an attorney's] license to practice law based on his January 6, 2011, guilty plea in the Halifax County Circuit Court to crimes, including driving while intoxicated-third or subsequent offense. The board ordered him to appear on February 18, 2011, to show cause why his law license should not be further suspended or revoked. [His] law license has been suspended since June 21, 2010, on impairment grounds.
The Arizona Disciplinary Commission has unanimously rejected an agreed disposition of six months and one day suspension in a matter in which the attorney had "conspired with his client to have the client fail to appear for trial." The commission previously had rejected a proposed suspension of six months and probation.
The commission viewed the allegations in the bar Complaint as "strik[ing] at the very heart of the truth-seeking function of the criminal justice system." After the client had failed to appear, the attorney allegedly made repeated lies to the judge and feigned ignorance notwithstanding his advice to the client: "the sanction [proposed] is insufficient to impress the Bar and the public with the seriousness of this conduct." (Mike Frisch)
The New Jersey Supreme Court adopted the recommendation of its Disciplinary Review Board and imposed a three-year prospective suspension of an attorney convicted of mail fraud and health care fraud. He was caught in dealings with a fake physical therapy and rehabilitiation center run by the FBI. The procedural circumstances of the discipline imposed here are somewhat unusual.
After the attorney was indicted, he submitted a resignation without prejudice from the New Jersey Bar. He truthfully averred that there were no pending disciplinary proceedings but failed to disclose (as required) the pending criminal charges. The resignation was accepted.
Disciplinary proceedings were brought in Pennsylvania and resulted in a three-year suspension retroactive to his temporary suspension for the conviction. When proceedings were brought in New Jersey, the attorney denied that he intended to deceive by his resignation and stated that he wished to avoid duplicative bar actions.
The court revoked the resignation and imposed suspension. (Mike Frisch)
Wednesday, February 2, 2011
The New Jersey Supreme Court agreed with its Disciplinary Review Board ("DRB") and remanded a matter in which the Office of Attorney Ethics ("OAE") had sought a reprimand. The issue that merits further consideration is whether the stipulated facts establish a knowing misappropriation.
The case involves a former Ravin, Sarasohn non-equity partner who moved to Lowenstein Sandler in 2000, shortly before the Ravin firm disbanded.
The attorney had provided bankruptcy advice to Milberg Weiss and received a check for $217,639.50 for his legal services. The two firms each had entitlement to a portion of the fee. The attorney deposited the check in a personal account and paid the Lowenstein firm its share about a month later. He did not notify the Ravin firm of the fee and did not keep the proceeds intact.
The OAE took the position that the facts did not support a charge of knowing misappropriation. The DRB disagreed and recommended appointment of a special prosecutor or special master to prosecute the case:
We agree that to require the OAE to prosecute a case on charges that it believes are unwarranted would put that office in what OAE counsel termed a awkward position.
The court did not follow the special prosecutor proposal and directed the DRB to determine appropriate discipline based on the stipulation before it.
Note that the court's order follows the DRB recommendation. (Mike Frisch)
A Pennslyvania attorney has been suspended pending final discipline as a result of his conviction for smuggling drugs into a jail facility. Mainlinemedianews reports on the circumstances:
A 62-year-old attorney — who took advice from a 23-year-old “client” on how to smuggle drugs into Delaware County’s prison — was formally sentenced Monday to serve 18 to 36 months in jail.
A contrite [attorney] of Philadelphia, who expressed his shame and embarrassment to Judge Patricia Jenkins, was allowed to remain free until next month to get matters in order. He is to report to prison on Aug. 23.
[He] expressed remorse over what has transpired, which his attorney Daniel Armstrong blamed on the defendant’s dementia that caused his life to spiral downward into depression and drug abuse.
“I am crushed by this (crime),” said [the attorney]. “My remorse and regret couldn’t be greater. I live with this situation every day — every minute of every day.”
He explained he has received support from his family and colleagues, but “I still feel embarrassed, ashamed and disgraced by what I did. I deeply regret it.”
“I’m 62 years old right now. It’s the first time I’ve done anything other than have a traffic violation,” he quietly told the court Monday.
[The attorney], pleaded guilty earlier this month to a charge of possession with intent to deliver drugs to a prison inmate.
The inmate Amanda, aka Amber, Lee Knox of New Jersey is heard in a prison conversation telling [him] how to package the drugs and “to make sure you look like a lawyer, you won’t get searched.”
Knox further instructs him to place the packaged drugs “in your right hand, and when I see you I will be able to hug you and I will get it from your hand.”
[The attorney] was caught with the drugs on July 10, 2009, by a routine scan at the prison after he told authorities he was there to see Knox, whom he described as a “client,” according to the affidavit of probable cause.
The web page of the Pennsylvania Disciplinary Board reports that the attorney was temporarily suspended as a result of the conviction. (Mike Frisch)
Tuesday, February 1, 2011
Also from the California Bar Journal:
[An attorney] was suspended for two years, stayed, and placed on two years of probation with a six-month actual suspension. The order took effect April 23, 2010.
The State Bar Court review department upheld a hearing judge’s findings that [the attorney], who has both medical and law degrees, committed three acts of misconduct — he committed acts of moral turpitude by make false and misleading statements on applications for hospital privileges, did not notify the State Bar of disciplinary action taken against him by the medical board, and he failed to uphold the law.
[His] medical license was revoked in 1999. He was subsequently employed by a law firm, where he represented himself as a doctor, without notifying his employer that his license had been revoked. The Sonoma County District Attorney charged him with three counts of improperly holding himself out as a doctor, but the charges were dismissed after [he] completed a diversion program for misdemeanors.
The review department agreed with the hearing judge’s find that [his] insistence on “his right to use the designation M.D. demonstrates an indifference toward rectification of or atonement for the consequences of his misconduct.” [The attorney], who admitted to the court he has a history of depression and anxiety, also was required to seek mental health treatment.
From the February 2011 California Bar Journal:
[An attorney] was disbarred Dec. 9, 2010, and was ordered to comply with rule 9.20 of the California Rules of Court.
[The attorney] pleaded guilty to 12 felonies including racketeering, money laundering and conspiracy to commit money laundering.
The federal charges stemmed from [his] connections with the notorious Mexican Mafia prison gang that often controls activities of Latino street gangs in California. According to the indictment, from October 2003 until September 2008, [he] transferred approximately $27,500 into the prison account of a Mexican Mafia member incarcerated at the federal “Supermax” facility in Florence, Colo. The indictment also alleged that [he] and the imprisoned Mexican Mafia member were partners in several businesses, including a limousine service, a liquor distributor and a real estate holding corporation.
The Mississippi Supreme Court has adopted amendments to Rules 1.1, 1.2 and 1.16 in conjunction with new Rule 6.5:
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization
or court, provides short-term limited pro bono legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the
client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the
lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.
The Oklahoma Supreme Court has concluded that a relatively lenient sanction is appropriate in a matter where an attorney had self-reported an arrest for attempting to use a forged prescription to obtain drugs and had taken steps to address her addiction:
We must fashion discipline that will sufficiently deter the respondent and other members of the bar from similar misconduct. The respondent in the case at bar committed the criminal offense of attempting to obtain a controlled dangerous substance by forgery or fraud. This is serious misconduct and it is not to be taken lightly. The respondent also had obtained drugs by forged prescription in the weeks prior to her arrest. The respondent has not been charged with or convicted of any crime nor has she any previous disciplinary history. Counsel for the Bar admitted that the Bar might never have learned of respondent's conduct if she had not reported herself. Thus, the respondent put herself in the position of being investigated by the Bar and subjecting herself to professional discipline when she might have avoided it by being less forthright.
Counsel for the Bar told the PRT that the respondent cooperated fully and frankly with the Bar and had done everything she could do to address her problem and facilitate her recovery. No clients were involved or harmed. We agree with the Bar that the evidence overwhelmingly demonstrates that respondent's problems were a result of her addiction to highly addictive pain medication. The respondent's conduct in confronting her addiction and seeking treatment, her self-reporting to the Bar and her forthrightness and cooperation throughout the disciplinary process serves as an example to other lawyers who are addicted. As in Donnelly, this Court will, where appropriate, look favorably on those who are self-motivated to confront their addictions, exhibit a sincere commitment to rehabilitation, openly admit their conduct and seek help before disciplinary charges are filed.
Respondent has agreed to a one-year deferred suspension and compliance with ten probationary conditions. Based on the particular facts and circumstances of this case, we determine that public censure coupled with a deferred suspension of one year, subject to the agreed probationary conditions, is appropriate to serve as a deterrent and to encourage a permanent change of lifestyle. Accordingly, the respondent stands publicly reprimanded and is placed under deferred suspension with probationary conditions for one year from the date of this opinion.
The court imposed a one-year deferred suspension with probationary conditions. (Mike Frisch)
Monday, January 31, 2011
A Massachusetts attorney has been indefinitely suspended for his role in attempts to sell 24 videotapes depicting John Lennon and Yoko Ono after the tapes had been stolen from their owners. The buyer in the transaction was Yoko Ono. From the Bar's summary:
In January, 2000, John Fallon and Rober Grenier, Jr., purchased twenty-four original videotapes depicting John Lennon and Yoko Ono, along with beta tapes containing full copies thereof. The copyright to the videotapes was included in the sale. In March or early April, 2000, the videotapes were stolen from World Wide Video, LLC, the corporation established by Fallon and Grenier for purposes of marketing the videotapes or turning them into a documentary. World Wide Video then brought suit against John Messina alleging that Messina had stolen the videotapes. The respondent defended Messina in that action which ultimately was settled with payment made by Messina as well as his commitment to assist in securing the return of the videotapes.
While the videotapes remained outstanding, World Wide Video was approached by Anthony Pagola who purported to know where the videotapes were located. Pagola reached an agreement with Fallon and Grenier that, subject to approval by World Wide Video, granted him six months to find a buyer for the videotapes. On August 24, 2001, a certificate of incorporation was filed with the Delaware Secretary of State incorporating a business known as Inner Vision, Inc., that listed Pagola as the incorporator. The respondent's testimony regarding his involvement, as well as the involvement of Messina, is conflicting and non-credible but the respondent has admitted filling out and filing the 2001 Delaware Annual Franchise Tax Report for Inner Vision, Inc., in which he identified Pagola, Messina, and himself as directors.
In early 2002 overtures were made to attorneys representing Ono expressing interest in selling the videotapes to her. On February 27, 2002, a fax with respondent's name and fax number in the header was received by Ono's attorney that purported to be a sales agreement between an entity owned by Pagola and Inner Vision, Inc., transferring copyright and ownership of the videotapes. The document was dated March 23, 2000, but was created after the fact in an attempt to create a chain of title to the videotapes.1 Ono's attorney, however, was not satisfied that this document accounted for all potential claimants as he became aware that Fallon and Grenier had held an interest in the videotapes at some point in 2000. Accordingly, the attorney requested the document transferring title from Fallon and Grenier to Pagola's company. A fax purporting to be such a document, and bearing a header with the respondent's name and fax number, was then sent on March 11, 2002. Ono's representatives then continued negotiation of the transaction with what they believed to be a group of sellers represented by the respondent. Indeed, as a result of their communications with the respondent, Ono's attorneys believed that the respondent was representing World Wide Video in connection with the transaction though this was not the case.
Agreement was ultimately reached and a closing was arranged for May 17, 2002, in connection with which a release of Fallon and Grenier's rights to the videotapes was faxed from the respondent's office to Ono's attorneys. The release contained Fallon and Grenier's signatures and was notarized by the respondent. The signatures, however, were fraudulent. Rather than being the genuine signatures of Fallon and Grenier, written in ink and by hand, the signatures appear to be "cut and paste" copies of signatures excised from the Bill of Sale for Rights by which the men initially gained title to the videotapes.2
Following the closing, Ono believed herself to hold copyright to the videotapes. Fallon and Grenier similarly believed themselves to hold copyright to the videotapes which they had recovered by April, 2005. When Ono learned of Fallon and Grenier's plans to promote and show the videotapes she asserted her rights under the May 17, 2002, "release"; The parties' competing claims ultimately resulted in the filing of a lawsuit by World Wide Video in federal district court.
On October 25, 2007, the respondent testified under oath at the office of bar counsel regarding his notarization of the copyright transfer document and his involvement in the sale of the videotapes to Ono. The respondent stated that his first dealings with Pagola occurred on the day of the closing, that Pagola brought two men to the respondent's office who identified themselves as Fallon and Grenier, and that he notarized their signatures after they signed in his presence, and that he had no other involvement in the sale of the videotapes. The respondent made similar sworn statements at a November 26, 2008, deposition taken in the course of World Wide Video's Federal lawsuit.
All of these statements were material to the matters before bar counsel and in the federal litigation. The First of these statements was, at best, intentionally misleading as the respondent knew of Pagola and his involvement with the videotapes, Inner Vision, Inc., and Messina prior to May 17, 2002. The remainder of these statements were knowingly false. Far from being uninvolved in the fraudulent sale, the respondent was a knowing and active participant.
The web page of the Massachusetts Board of Bar Overseers reports an 18 month suspension for misconduct in three real estate transactions:
The respondent was suspended for eighteen months for misconduct as a lender’s attorney in three real estate transactions from December, 2002, through March, 2004. For each transaction, the same mortgage broker, Leo Desire, referred the closing to the respondent. During the time period involved, Desire engaged in a series of “mortgage rescue” transactions with homeowners facing foreclosure, whereby the homeowners would convey their home to straws selected by Desire, Desire would obtain a loan to finance the transaction, and the homeowners would retain the right to repurchase their home pursuant to a formula set out by Desire.
For each of the three closings, the respondent prepared and signed, and had the purported buyers and sellers sign, a HUD-1 Disclosure Statement that he knew contained false and deceptive statements. Among other things, the HUD-1s misrepresented that a buyer’s deposit had been paid and that the buyer brought additional funds to the closing, failed to disclose payments to Desire (or his affiliates), and overstated the funds paid to the seller. The respondent submitted the false and deceptive HUD-1s to his lender clients.
The respondent was aware that the three transactions were straw transactions and that the original owners anticipated redeeming their ownership interests. He was also aware that the purported buyers had agreed that the original owners could continue to occupy the homes. The respondent did not inform his lender clients of these facts. He also had the purported buyers sign occupancy agreements, which he forwarded to his lender clients.
The attorney had substantial practice experience (an aggravating factor) but had not profited from the transactions beyond his standard fees (a mitigating factor). (Mike Frisch)
The Maryland Court of Appeals has held that a suspect who had waived his Miranda rights was entitled to suppress statements that he made after the interrogating police officer had stated that "this is between you and me, bud." The statement contradicted the prior warning and "vitiated the suspect's earlier waiver." (Mike Frisch)
The Massachusetts Committee on Judicial Ethics recently opined that a judge may participate in a bar association's educational program but may not be involved in the fund raising aspects of the affair. The question presented:
You have received an invitation from a bar association to participate in a conference. Specifically, the bar association has asked you to serve as advisor to the conference, to moderate a bench bar panel, and to attend a bench bar reception. The bar association has also indicated that you are welcome at any other events, including a ball. You ask if participating in these activities is consistent with your obligations under the Code. The Committee believes that it is.
As to severability:
Here, your description demonstrates that the conference has a dual function: (1) to celebrate the bar association through educational events involving the bench and bar; and (2) to fund a scholarship to benefit needy law students in furtherance of the conference's - and the bar association's - educational focus. Even though these two purposes are intertwined in that the decision to fund a scholarship is consistent with the educational cast of the conference, they are severable in terms of your duties under the Code.
You "shall not personally participate in the solicitation of funds or other fund-raising activities," Section 4C(3)(b)(i), and you "shall not use or permit the use of the prestige of judicial office for fund-raising . . . ." Section 4C(3)(b)(iv). You will not run afoul of these provisions as your participation in the Conference is clearly limited to the celebratory, educational aspect by serving as an advisor to the bar association and as the moderator of a Bench Bar Panel. See Section 4B & Commentary. The bar association does not intend to use your name for fund-raising purposes in any capacity, and while its print and electronic publications will mention your participation in the educational aspects, the bar association will not otherwise highlight your role.
The Committee also cautions you that while you may attend the ball or any other conference event when bar association leadership presents the scholarship and publicly acknowledges the sponsors, Commentary to Section 4C(3)(b), you may not participate in those fund-raising-related events by playing an obvious role in connection with that presentation and acknowledgment. It is on this basis that the Committee's warning in CJE Opinion 92-2 that a judge could not attend an event that had "a dual function of supporting both a charitable cause and a political cause" does not apply.
Therefore, the conference is structured in such a way that your participation in the educational aspect is consistent with the Code in that it will not give the impression that you are participating in or using the prestige of judicial office for the fund-raising aspect. See Section 4C(3)(b)(i), (iv); CJE Opinion 2000-4.