December 17, 2011
Inexperienced Attorney Gets Suspended
An attorney who undertook a series of criminal appeals despite his lack of experience and resulting errors has been suspended for 180 days by the Indiana Supreme Court:
Respondent admits to seven counts of misconduct following the same basic fact pattern. In October 2, 2006, Respondent indicated to the Allen County Public Defender's Office that he was available to handle criminal appeals. He was at the time very inexperienced in appellate law and did not undertake a study of appellate law that would enable him to handle criminal appeals. Over the course of about one year, Respondent was appointed to represent seven criminal defendants in their appeals. In these cases, Respondent committed numerous violations of the applicable appellate rules, characterized by the Court of Appeals as substantial, glaring, and flagrant. In one case, he told his client that the case could not be appealed because he had entered into a plea agreement when, in fact, the appeal had been dismissed for noncompliance with the appellate rules. He failed to heed warnings in the Court of Appeals' decisions pointing out his deficiencies and caused additional, unnecessary work for the Court of Appeals and the Indiana Attorney General.
The web page for the Indiana bar disciplinary system has a new look. (Mike Frisch)
December 16, 2011
When Plane Collides And Client Lies
The Pennsylvania Supreme Court has imposed a public censure for four instances of what bar prosecutors call "garden-variety" neglect of client matters. A close inspection of the Disciplinary Board's report reveals a count that is a bit more complex.
The attorney was retained to pusrsue claims for injuries sustained by passengers who were in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.
Trouble was, she had been in a car accident two months before and had retained the attorney to pursue the claim. He failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testiminy was false.
The defense counsel later received the client's medical records of the client and recognized the false testimony. (Mike Frisch)
December 15, 2011
Threat Or Helpful Advice?
A circuit court judge who "abused his contempt powers and exhibited poor courtroom demeanor" has been publicly reprimanded, fined $1,000 and ordered to pay costs by the Mississippi Supreme Court
One stipulated violation involved a defendant who had failed to appear at a scheduled arraignment. When he later appeared without counsel, the judge made a series of remarks that included "if you are convicted, I'm going to get you." He then threatened the defendant's bail bondsman and ordered the bondsman jailed for a week. The judge released him after three days.
In another matter, he held both prosecutor and defense counsel in contempt for submitting proposed dismissal orders in two DUI cases that had earlier been continued. He locked up the prosecutor and found him in contempt. The prosecutor's hearing was held while he was imprisoned. The supreme court found that the contempt violated the prosecutor's right to due process.
There are concurring and a dissenting opinion by Justice Kitchens. The concurring opinion agrees with the dissent that the court failed to apply the proper standard of review but would nonetheless sustain the findings of misconduct.
In dissent, Justice Kitchens would apply the previous "independent inquiry of the record" rather than deferential treatment to the facts agreed upon by the parties. He would not find any judicial misconduct based on the agreed facts.
Justice Kitchens would not find sanctionable discourtesy in the judge's calling people before him as "Lawyer" or by their last name only:
...I cannot discern how referring to counsel as “lawyer” is any more of an insult than referring to the bench as “judge.” During my long career at the Bar, I deemed it a high honor to be addressed as “lawyer.”
As to the "get you" remark:
Rather than an impermissible threat, I view it as a constructive and emphatic effort on the judge's part to impress upon [the defendant] the gravity of his situation, and certainly that, if he were found guilty, the day would come when he would be brought before [the judge] for sentencing. Instead of tip-toeing around the serious matters at hand, the judge, in no uncertain terms, made it plain to [the defendant] that it was his responsibility to get in touch with his lawyer in order to have the benefit of the lawyer's assistance...In so doing, [the judge] was fulfilling the duty that this Court imposes on Mississippi's circuit judges to be vigilant in helping accused persons understand the importance of being represented in court by legal counsel.
Justice Dickinson for the majority:
While I cannot dispute that my friend, Justice Kitchens, has vast experience and a
storied and commendable tenure at the bar, I must say that my own three decades as a lawyer
suggest that one knows a discourteous judge when encountering him or her in the courtroom; and a word or phrase discourteously said in the courtroom may very well not appear – on
paper – to have been said discourteously. But the proof-in-the-pudding in this case is that
Judge Smith agreed his “demeanor during the hearings was confrontational and discourteous
to counsel . . . ,” and we take him at his word.
Staying Out Of New Jersey
The New York Appellate Division for the Second Judicial Department afforded full faith and credit to a New Jersey judgment against a New York attorney.
The plaintiff hired the defendant, an attorney admitted to practice law in the State of New York, to represent him in a transaction for the purchase of certain real property located in New Jersey. The plaintiff and the defendant are both New York residents. The defendant is not licensed to practice law in New Jersey and did not physically enter New Jersey in connection with the transaction. He negotiated the transaction by mail and telephone with the New Jersey attorney of the New Jersey owner of the property, and conducted the closing by mail in the New Jersey office of the seller's attorney. The plaintiff subsequently sued the defendant in New Jersey, alleging that the defendant committed malpractice in connection with the transaction. The defendant did not appear or defend that action, and a judgment was entered against him upon his default. The plaintiff then commenced this action in New York to enforce the New Jersey judgment, proceeding by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The defendant opposed the motion on the ground that the New Jersey court did not have personal jurisdiction over him and, therefore, that the New Jersey judgment was not entitled to full faith and credit. In an order dated November 12, 2010, the Supreme Court granted the plaintiff's motion for summary judgment. In an order entered February 1, 2011, the Supreme Court, upon reargument, in effect, adhered to the prior determination granting the plaintiff's motion for summary judgment. We affirm the order insofar as appealed from.
The holding on appeal:
Here, the defendant's purposeful conduct in negotiating a transaction by mail and telephone with the New Jersey attorney for a New Jersey seller of property located in New Jersey established a sufficient basis for the exercise of long-arm jurisdiction over the defendant, consistent with due process. Thus, the Supreme Court properly determined that the New Jersey judgment was entitled to full faith and credit. (citations omitted)
Judges May Travel Together In Election Campaigns
An opinion from the Florida Judicial Ethics Advisory Committee:
Whether judicial candidates who are running in different races may travel together to campaign speaking events if the candidates do not publicly endorse each other for office.
ANSWER: Yes, as long as the candidates do not travel together so frequently that it creates the impression that the judicial candidates are working together or are endorsing each other, and as long as the vehicle in which they are traveling does not display the other candidate’s campaign advertising.
As to the particulars:
...we opine that judicial candidates who are running in different races may travel together to campaign speaking events as long as the candidates do not travel together so frequently that it creates the impression that the judicial candidates are working together or are endorsing each other. See Fla. JEAC Op. 06-21 (“[A] judicial candidate must not . . . appear to run as part of a ‘slate.’”).
We recognize that what constitutes “frequent” travel is subjective. However, we are unable to define an objective test as to the number or type of instances which may constitute “frequent” travel. We leave such conclusions to the view of the reasonable person.
We also recognize that some judicial candidates travel in vehicles which display the candidate’s campaign advertising such as magnetic signs and bumper stickers. We believe that a judicial candidate who travels in a vehicle displaying another candidate’s campaign advertising may create the impression of publicly endorsing the other candidate. See Fla. JEAC Op. 87-22 (a judge should not drive an automobile with a bumper sticker supporting the spouse’s candidacy for public office). Thus, we further opine that a judicial candidate may travel to campaign speaking events with another judicial candidate as long as the vehicle in which they are traveling does not display the other candidate’s campaign advertising.
December 14, 2011
Beating Is Not An Abortion
The Utah Supreme Court has held that a juvenile who solicited a beating to terminate her pregnancy did not seek an abortion. The term "abortion" is limited to medical procedures.
We conclude that the legislature could not possibly intended for the term abortion to include any series of steps or actions undertaken to kill an unborn child, including the alleged solicited violent beating of a pregnant woman.
The court thus reversed an order of the juvenile court dismissing delinquency charges and remanded for further proceedings.
In a separate opinion, the court reversed the dismissal of attempted murder charges against the adult who administered the beating. (Mike Frisch)
Practice Pointer: Open Certified Letters From The Bar
The Ohio Supreme Court has imposed a reprimand of an attorney who had failed to respond from correspondence from the Akron Bar Association concerning a client complaint.
According to the recommendation of the Board of Commissioners on Grievances and Discipline, the attorney:
...admitted that he did not respond to any of the certified mail from the Akron Bar association. He testified that he simply did not recall opening the certified mail and did not realize the gravity of the situation.
The attorney responded after another attorney "advised him of the gravity of the situation and advised him to take immediate action." He did. (Mike Frisch)
Welcome To Jim Jones
Georgetown Law has announced a significant addition to its Center for the Study of the Legal Profession:
Georgetown University Law Center Dean William M. Treanor is pleased to announce that James Jones, former chair of the Hildebrandt Institute and managing partner of Arnold & Porter, will assume the role of senior fellow with Georgetown Law’s Center for the Study of the Legal Profession, beginning in January 2012.
"Jim Jones is one of the world’s leading thinkers about trends in law practice and the legal profession," said Dean Treanor. "His affiliation with Georgetown will enhance our ability to anticipate changes in the legal profession, strengthen our efforts to prepare students to meet the challenges they will face and enrich the research that we do on a profession undergoing profound changes."
Jones has served over the years in a variety of leadership positions in the legal industry. He spent more than 20 years at Arnold & Porter, serving as managing partner of the firm from 1986 to 1995. From 1995 to 2000, he was vice chairman and general counsel of APCO Worldwide. Since 2001, he has been at Hildebrandt International (later Hildebrandt Baker Robbins), a leading consultant to law firms and legal departments around the globe. For the past four years, he served as Hildebrandt's managing director. Since 2000, Jones also served as chair of the Hildebrandt Institute, the division responsible for executive education and research activities. Jones received his J.D. from New York University in 1970.
Jones has served since 1993 as chair of the Pro Bono Institute. He was also instrumental in the creation of TrustLaw, a project of the Thomson Reuters Foundation designed to promote pro bono collaboration between leading law firms and major NGOs throughout the world. He is an author and frequent speaker on topics relating to the "business of law" and has been a regular speaker to student audiences at Georgetown on trends in the legal profession.
On his new relationship with Georgetown Law, Jones said, "I am delighted to be affiliated with the Georgetown Center for the Study of the Legal Profession. Under the able direction of Mitt Regan and Jeff Bauman, the Center and its talented members have already made a positive impact on the legal profession through insightful research and publications, as well as well-focused educational programs. I look forward to contributing to the Center's success in the future, particularly in the area of executive education."
The Center for the Study of the Legal Profession was created in 2007 to promote interdisciplinary scholarship on the legal profession informed by the dynamics of modern practice; provide students and faculty with an understanding of the opportunities and challenges of a 21st century legal career; and furnish members of the bar, particularly those in public and private decision-making positions, broad perspectives on trends and developments in law practice.
December 13, 2011
Invitation To An Inquest Transcript
In a decision involving the request of the Globe newspapers for a transcript of the inquest into murder charges against Amy Bishop, the Massachusetts Supreme Judicial Court today has held:
Applying our new standard to the inquest report and transcript at issue in this case, the denial of the motion to impound must be vacated because, as to the transcript, the judge failed to recognize the effect of G.L. c. 38, § 10, and, as to the report, the judge rested on the principle in Kennedy that we now replace with the rule that the report becomes a presumptively public document when the transcript becomes a presumptively public document. On remand, the judge will conduct further proceedings in accordance with this opinion, with the proviso that the inquest report and transcript shall continue to be impounded until at least ten calendar days after the issuance of the rescript. After the issuance of the rescript, the defendant, the Commonwealth, the decedent's immediate family, or another interested party shall have ten calendar days to move in the criminal case in the Superior Court to impound the inquest report and transcript for "good cause shown." If no such motion is filed, the report and transcript shall be made available to the public. If such a motion is filed, the report and transcript shall continue to be impounded temporarily until the adjudication of the motion or further order of the judge.
Finally, we address whether, in the future, a petition under G.L. c. 211, § 3, shall continue to be the only means to obtain review of the denial or allowance of a motion to impound an inquest report or transcript, or to vacate or modify an order of impoundment. In civil cases, under Rule 12 of the Uniform Rules on Impoundment Procedure at 905 (LexisNexis 2011-2012), an order impounding or refusing to impound documents filed in court may be appealed to a single justice of the Appeals Court. See Commonwealth v. Silva, 448 Mass. 701, 705 (2007). In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules. Id., quoting Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004). We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court.
Bishop is a professor charged in Alabama with the murder of three colleagues. This decision relates to the investigation into the 1986 death of her brother.
The prior Kennedy decision described above related to the inquest into the death of Mary Jo Kopeckne.
The title to this post was inspired by this book. (Mike Frisch)
If No Violations, No Aggravating Factors
The Iowa Supreme Court has found that an attorney did not commit any charged ethical violations and rejected the recommendation of its Grievance Commission for a 30-day suspension. The court dismissed the case.
The attorney is admitted in Minnesota and South Dakota. He represented the Sac & Fox Tribe of the Mississippi in a business deal with a now-defunct Iowa software company. The company "offered software that potentially could be used to store information about a person's ancestry and verify whether that person was a bona fide member of an Indian tribe."
The rather complex set of facts alleged he engaged in unauthorized communications with a company representative while the company was represented by counsel and made knowing false statements in the course of the conversation.
...this matter requires us to consider what was said or not said in a few oral communications. For reasons we have discussed, as we reconstruct what happened in those conversations, we are unable to conclude by the required convincing preponderance of the evidence that [the attorney] violated [the charged rules].
The court declined to consider aggravating factors in the manner that the attorney defended the charges, as there were no rule violations. (Mike Frisch)
December 12, 2011
Bond Comments Draw Reprimand
The Tennessee Court of the Judiciary has publicly reprimanded a judge for two incidents involving a bond he set. He called an attorney into court when there was no proceeding to question him over an appeal of the bond.
He also criticized a judge who had lowered a bond he had set. The comments were made in an open court proceeding attended by the press.
From the reprimand:
...you promptly responded admitting the factual basis for the
complaints. During subsequent discussions with Disciplinary Counsel
you acknowledged that although your intention during the course of
these two incidents was to express your concern concerning certain
law enforcement matters, you now realized that your actions were
inappropriate in both of these matters. You expressed your
intention to refrain from public comment or criticism concerning
pending matters handled by other members of the Judiciary and to
carefully ensure that the rulings of Superior Courts on appeals from
your Court are given full effect.
WMC.TV.com had this report. (Mike Frisch)
Entry Prohibited For Suspended Magistrate
The South Carolina Supreme Court has ordered the interim suspension of a county magistrate.
The order provides, in part:
...respondent is prohibited from entering the premises of the magistrate court unless escorted by a law enforcement officer after authorization from the Chief Magistrate of Dorchester County. Finally, respondent is prohibited from having access to, destroying, or canceling any public records and he is prohibited from access to any judicial databases or case management systems. This order authorizes the Chief Magistrate for Dorchester County or any law enforcement official to implement any of the prohibitions as stated in this order.
The order also provides that he will not be paid while suspended. (MIke Frisch)
The New Jersey Approach
The forgiving nature of attorney discipline in New Jersey is again on display in a decision in which the Supreme Court accepted the recommendation of its Disciplinary Review Board (DRB) to censure an attorney.
The attorney had been suspended for three months. He failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension.
The DRB wasn't buying. The board's analysis of precedent led it to conclude that no further suspension was appropriate.
In another case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation.
And there is more: Here is a decision that proclaims that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated." Intolerance equals reprimand.
There was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed. (Mike Frisch)
Attorney Suspended For Dealings With Client's Wife
The Michigan Attorney Discipline Board has increased a panel reprimand to a 30-day suspension in a case involving a violation of Rule 4.3 (dealings with unrepresented person). The rule states:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The attorney was retained by the chairman of the pathology department of the Henry Ford Hospital. The client wished to divorce his wife, who had been diagnosed with multiple sclerosis in 1987. The attorney personally served the papers on the wife and had her sign documents concerning the action. The panel and board found that the interaction between the attorney and the wife violated the rule.
Another attorney eventually handled the divorce. (Mike Frisch)
The Pennsylvania Supreme Court has reinstated an attorney who went on inactive status in 2002. He moved to Virginia to care for his mother.
While in Virginia, he engaged in unauthorized practice. He also made multiple misrepresentations to Pennsylvania and Virginia authorities regarding his bar status. As a result, in 2005, he was suspended for five years in Pennsylvania.
A majority of the Disciplinary Board found reinstatement appropriate notwithstanding the absence of supporting character testimony. Two members of the board dissented and would find the evidence insufficient. (Mike Frisch)
December 11, 2011
A Credit To FEMA
A Louisiana Hearing Committee has found no ethical violations on the part of a former attorney who was disbarred in 1990.
Following Hurricane Katrina, the respondent was employed by FEMA as a field agent. He was issued an agency credit card for official use only. The charges allege misconduct in the unauthorized use of the credit card. He used the card for numerous personal expenses that included hotel, car rental to attend the funeral of a relative in Florida, and at the Monkey Bar, where only drinks (not food) are served.
He had been terminated by FEMA and repaid over $7,000.
The hearing board found that rules governing trust funds were not applicable as he was not acting as an attorney.
The board further noted that the Office of Disciplinary Counsel was not seeking any additional sanction, although the disciplinary system had jurisdiction over the charges because the respondent is seeking reinstatement. (Mike Frisch)