February 12, 2011
For Men Only
An order to show cause has been issued in a matter involving a North Carolina attorney who is subject to a stayed three-year suspension. The suspension required the attorney to terminate his representation of all female clients within 60 days, not interact with any woman as a client or prospective client and certify his compliance with the withdrawal requirement.
The State Bar alleges violations of the conditions and sought the order by means of the motion linked here. (Mike Frisch)
February 11, 2011
What You Don't Do When You Think (Or Even Know) That Your Client Is Guilty
A conviction for simple robbery was reversed by the Kansas Supreme Court as a result of the trial court's failure to grant the attorney's motion to withdraw. At an ex parte chambers conference, the attorney stated to the judge that he had reviewed a surveillance video and concluded that it depicted his client in the act of the crime. The client denied it and the video was "grainy." The attorney contended that he was precluded "from presenting the evidence that [the client] wanted introduced."
The court found that the attorney's position
ignore[d] the separation of duties in a criminal prosecution...[the attorney's] duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. [The attorney] exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if [the attorney's] refusal to introduce evidence on [the client's] behalf was based on [his] out-of-bounds determination of guilt, rather than on the falsity of the evidence, [the client's] dissatisfaction was justified.
Resign And Then Run
The Vermont Supreme Court has held that discipline against an assistant judge who had failed to resign from office in order to run for the position of probate judge was appropriate, rejecting the judge-candidate constitutional claims. The court rejected the Judicial Conduct Board's proposed one-month suspension from office:
First, we emphasize our point of agreement with the Board. Although the Preamble to the Code acknowledges that not “every transgression” must result in disciplinary action, we believe that a public sanction here is appropriate. Notwithstanding respondent’s claim of ambiguity, we find that the language of Canon 5(A)(3) is clear and straightforward and that respondent’s violation of the Canon was patent and indisputable. Although respondent claims that he relied on a legal opinion from his attorney to the contrary, as we have pointed out, a violation need not be willful to cause public harm or warrant public censure. See Kroger, 167 Vt. at 6, 702 A.2d at 67 (where judge’s behavior transgresses high standards of Judicial Code, sanctions may be imposed even where “the judge sincerely believed [the conduct] to be appropriate and correct”).
At the same time, we do not believe that the more severe sanction recommended by the Board—a thirty-day suspension and compulsory resignation from one of respondent’s two current judicial offices—is necessary or appropriate. First, respondent’s lengthy record of judicial service is otherwise entirely free of prior conduct violations, and we are not persuaded that a suspension from office is necessary to restore public confidence in either respondent’s integrity or in the judiciary’s integrity as a whole. See In re Kroger, 167 Vt. at 15, 702 A.2d at 72 (noting general rule that judge’s isolated instance of misconduct must be balanced against prior unblemished record). Second, we take judicial notice that respondent was not a candidate in the November 2010 general election for reelection to the office of assistant judge, and therefore will—as a matter of course—vacate that office at the end of January of 2011. See Vt. Const., Ch.II, § 50. Requiring respondent’s resignation shortly before the natural end of his term would serve little practical or remedial purpose compared to the greater administrative inconvenience caused by the temporary vacancy. Finally, we note that, however patent respondent’s violation of Canon 5(A)(3), it has resulted in no charge or evidence of any actual conflict of interest or neglect of duty by respondent. Accordingly, we conclude that a public reprimand is the appropriate sanction for the violation.
Black Hawk Down
The Iowa Supreme Court has imposed a suspension of no less than eighteen months in a sex-with-client matter.
The attorney met the client on the day of her release from a mental health facility, where she had been treated for a suicide attempt. She sought his help in connection with the loss of custody of her three children. She revealed a history of drug abuse and prostitution. They had sex in his office at the initial meeting after the attorney had solicited a kiss.
The sex continued but the attorney-client relationship broke down. The client filed a bar complaint in 2007 and the attorney falsely denied the relationship. He also got the client to falsely deny the sexual conduct in a notarized affidavit. They then renewed their sexual relationship, marrying in October 2007.
As the court notes: "[t]he detente was short-lived..." The marriage was dissolved after six weeks. However, the attorney-client relationship resumed when the client was charged with contempt. They met at the Black Hawk County courthouse to discuss the case. In the courthouse library, the attorney
grabbed the client's buttocks as she entered the library. Believing it would induce [the attorney] to represent her the next day at the hearing on the contempt charge, the client began to perform oral sex on him. An unidentified third party entered the room and interrupted the sex act.
The attorney admitted the conduct to a district court judge on the day of the library encounter but continued to represent the client. He denied the conduct prior to the disciplinary hearing but admitted it when the matter was heard.
The court rejected charges based on the client's alleged diminished capacity to make adequately considered decisions. Further, the court rejected charges that the library sex was prejudicial to the administration of justice as the board "failed to prove that the sexual misconduct interfered with the efficient and proper operation of the courts."
The Attorney Disciplinary Board had sought a three-year suspension. (Mike Frisch)
Former DA Disbarred
WRAL.com reports on a disciplinary action from North Carolina:
The former district attorney for Person and Caswell counties has been disbarred after pleading guilty last summer to inappropriately touching and kissing women.
Joel Brewer was disbarred by the Wake County Superior Court, Katherine Jean, general counsel for the North Carolina State Bar, said Thursday. He has surrendered his law license.
Brewer pleaded guilty last July to seven counts of assault on a female and one count each of impersonating a law enforcement officer and willfully failing to discharge duties.
Prosecutors characterized Brewer as a predator and said he dismissed cases to win votes in his re-election campaigns.
Brewer retired in February 2010 during a State Bureau of Investigation review of the accusations. He had been district attorney for 16 years.
He was given a suspended 105-day jail sentence, put on probation for three years and order to pay a $50,000 fine and perform 200 hours of community service. The judge said the fine would be cut in half if he lost his law license for at least 90 days.
The order of disbarment is linked here. (Mike Frisch)
February 10, 2011
The New York Appellate Division for the First Judicial Department has imposed a one-year suspension for tax violations. The court described the circumstances:
In March 2008, respondent was contacted by the Nassau County District Attorney's Office about his failure to file state tax returns for the period 2002 through 2006. He did not make any estimated state tax payments during those years, nor did he pay his federal taxes. Respondent retained counsel and within approximately two weeks, prior to his arraignment, he filed his New York State tax returns for 2002 through 2006 and paid $97,511 in outstanding taxes; on December 22, 2008, he paid New York penalties and interest of $55,574. In July 2008, respondent paid the Federal government approximately $1.2 million in taxes, penalties and interest covering the same time period. Respondent testified, "[t]he state taxes I had the money, it was available in the bank, and the federal taxes, which were considerably larger...came from two sources - one from a refinancing of our home ... [and the other] was covered by withdrawing money from the pension plan." Respondent has filed all subsequent tax returns on time.
The Panel noted, however, that "Respondent did nothing to rectify his tax situation until he was caught red-handed and without a glimmer of a defense to felony charges." In aggravation, the Panel commented on respondent's intent:
Respondent's failure to pay taxes was no accident. Nor was it the result of economic distress. Respondent's annual income during the years when he chose not to pay taxes ranged from $363,992 to $597,989. Respondent acknowledged that this failure to file his tax returns and pay his taxes was not the result of an inability to pay.
Respondent knowingly and intentionally did not file returns and pay taxes. He received notices from the IRS, he read them, but he "just didn't do anything further with them." The decade-long pattern of filing for extensions with which he did not . . . comply, the calculated nature of Respondent's actions, and the fact that, when he was caught, he was able to come up with the money in very short order - because it was tucked away in the bank, in the equity in his home and in his pension account - speak to a greater culpability here than in other failure-to-pay cases.
The court rejected a hearing panel's proposed 18 month suspension:
The Hearing Panel's recommendation that respondent be suspended for 18-months is disaffirmed. While the Panel seemed to criticize him for promptly paying the money he owed and treating his charitable contributions of $160,000 as aggravation, both of those circumstances could also be seen as mitigation, at least in part. Moreover, respondent has practiced law for 36 years without blemish, he fully cooperated with all investigating authorities, he accepted responsibility for his actions and expressed remorse, he took corrective actions to ensure his nonpayment never happens again, and he has continued with counseling. A suspension from the practice of law for one year is appropriate under the circumstances.
Relationship In 1970s Results In Conviction, Interim Suspension, Reinstatement
The Wyoming Supreme Court has reinstated an attorney who obtained her law degree in 1988 at the age of 45 and was admitted in 1989.
In 2004, the attorney was convicted in Massachusetts for violation of a statute that prohibits sexual intercourse by an adult with a person under the age of eighteen. The relationship at issue took place in the mid-1970s and led to a marriage and divorce. The complainant went to authorities more than 25 years after the relationship had ended and more than fifteen years after the divorce. After conviction of a felony offense at a jury trial, the attorney was placed on unsupervised probation. The probation was completed without incident.
The attorney had been suspended by order dated September 30, 2010, based on the conviction.
The order was reinstatement was issued after a disciplinary hearing and favorable recommendation by the Board on Professional Responsibility. The board report (appended to the court's order) describes a relationship that began when the complainant was sixteen and the attorney was thirty one. They had a child in 1975 and were married in 1980.
The attorney had recovered from serious health problems in the early 1980s and went to law school after the divorce. She worked for the Casper city attorney's office from 1992 until her suspension. She had pled guilty to a related but lesser offense in Wyoming in 2002. An evaluation conducted as a result of that plea concluded that the attorney "was neither a sexual aggressor nor a sexual predator."
The board noted that the conduct took place long before her admission but was not prosecuted until long after the license was granted. The board opined that the offense would not have resulted in denial of admission. (Mike Frisch)
Safe Harbor Now But Not Then
The Florida Supreme Court resolved a conflict in lower court decisions by holding that a "safe harbor" provision enacted in 2002 did not apply to frivolous claims filed prior to the adoption of the provision. Under the provision, a party seeking sanctions must serve the motion on the opposing party twenty-one days before filing it with the court. (Mike Frisch)
February 9, 2011
Old Law Still Good Law
A recent opinion from the Legal Ethics Committee of the D.C.Bar is summarized below:
D.C. Legal Ethics Opinion 31 (1977) concluded that it was a violation of the former Code of Professional Responsibility for a congressional staff lawyer to require a witness to appear before a congressional committee when the committee has been informed that the witness will invoke the self-incrimination privilege as to all substantive questions “and the sole effect of the summons will be to pillory the witness.” The committee declines a request to vacate Opinion 31 but notes that under the D.C. Rules of Professional Conduct, as under the former Code of Professional Responsibility, a violation occurs only where the summons serves no substantial purpose “other than to embarrass, delay, or burden” the witness.
A final footnote:
We express no opinion on the propriety of a witness invoking an opinion of this committee as a basis for refusing to comply with a congressional subpoena.
As you might imagine, there is no District of Columbia case imposing discipline for such a violation. Good luck proving that the "sole effect...will be to pillory the witness." (Mike Frisch)
Just Don't Pay Me In Pecans
The Mississippi Supreme Court affirmed a circuit court order enforcing a settlement agreement against plaintiffs in litigation brought against Smith's Pecans. The attorney for the plaintiffs had accepted the offer of settlement but the clients had thereafter refused to execute the documents.
The court found that the circuit court had focused on the plaintiffs' "actions leading up to and after the formation of the settlement agreement and determined [the attorney] had apparent authority to act." This approach was a proper application of Mississippi law.
The plaintiffs were held in contempt in order to compel them to execute the settlement documents. This also was held to be a proper exercise of the circuit court's discretion. (Mike Frisch)
Party On, Judge Garth!
A judge may serve as the Master of Ceremonies at a dinner for a charitable organization, according to a recent opinion of the Delaware Judicial Ethics Advisory Committee. The committee responded to the request for an expedited opinion.
The dinner is not a fund raising event. Rather, the purpose is the presentation of an award (the Allen Cup Award for Philanthropic Service) and to announce a scholarship fund. The committee reviewed the dinner invite and bestowed its blessing. (Mike Frisch)
The South Carolina Supreme Court has imposed a definite suspension of nine months two matters , one involving an instance of personal misconduct and another that involved billing violations.
The court described the two matters:
On or about January 10, 2010, respondent failed to tell her current medical practitioner that she was obtaining a controlled substance of like therapeutic use from another physician. As a result of this omission, respondent was prescribed a Schedule III controlled substance that would not otherwise have been prescribed.
On February 18, 2010, respondent was arrested and charged with Unlawful Prescription Drugs, Blank Prescription – 1st Offense under South Carolina Code Ann. § 44-53-395 (2002). After respondent successfully completed the Pre-Trial Intervention Program, the solicitor entered a nolle prosquei of the charge.
While employed by a law firm, respondent represented Nationwide Insurance Company policyholders. Between October 2009 and December 2009, she submitted timesheets in one client's case for attendance at twenty (20) roster meetings in Richland County. It was later discovered that the client's case had been removed from the roster in late 2008 pursuant to Rule 40(j), SCRCP. It was further discovered that the billing for the roster meetings and related entries were fabricated as respondent had not attended any roster meetings in the case. As a result of the fabricated entries, Nationwide Insurance Company was overbilled in the approximate amount of $10,566.00. Respondent's law firm fully repaid Nationwide Insurance Company for the overbilling. The law firm represents it is not due any restitution from respondent.
The suspension was imposed as of the date of an interim suspension that had been previously ordered. (Mike Frisch)
The Winter 2011 edition of the Georgetown Journal of Legal Ethics has just hit the streets. Among the highlights are an analysis of the value of U.S. legal education in the global services market by Professor Carole Silver and an article on interference with law school clinics from Professors Robert Kuehn and Bridget McCormack.
The edition may be ordered through this link.
As co-faculty advisor (with Professor Mitt Regan) to the journal, my thanks to the editors for their fine contribution to the profession. (Mike Frisch)
February 8, 2011
Mortgagor Rhymes With Poor
The Florida Judicial Ethics Advisory Committee opines:
Whether a senior judge who owns several residential mortgages on properties and receives income from those properties is prohibited from handling mortgage foreclosure matters?
The Commentary to Canon 5D(1) cautions that a judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge’s court. It further explains that “this rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification.” Additionally, the facts submitted by the inquiring senior judge do not reflect that the judge has invested in, nor has any stock ownership in, any banking institution which may come before the judge. See, e.g., JEAC 96-13 (judge having a de minimis interest in a banking institution should recuse if no appearance is made by adverse party, or, if adverse party appears, the judge shall make disclosure of stock ownership interest where a corporation in which stock is owned is a party to the mortgage foreclosure action). Instead, the inquiring judge is standing in the same shoes as a lending institution by securing the borrowers’ loans on several residential properties. We conclude that under the facts submitted, there is no violation of Canon 5D(1).
Furthermore, Canon 5D(2) permits a judge to hold and manage investments in real estate and to engage in other remunerative activity. Here, the inquiring senior judge is essentially acting as a mortgagee, owning each residential mortgage, and deriving income from each mortgagor/borrower. Under these circumstances, nothing prohibits the inquiring judge from handling mortgage foreclosure matters as a senior judge unless the inquiring senior judge is placed in the unusual circumstance of personally initiating a foreclosure action against any one of the borrowers who should default on the residential mortgages. In the event that this situation arises, then the inquiring senior judge should discontinue handling mortgage foreclosure matters in which the judge's ruling on an issue reasonably could be perceived as providing the judge with persuasive authority in the judge's favor, or some other advantage, in the judge's own case.
One Committee member believes that the judge may have a duty to disclose to the parties that the judge is either involved in a foreclosure action as a mortgagee, or has previously been involved as a mortgagee, or reasonably anticipates becoming involved as a mortgagee. This Committee member believes that it is not just the judge's potential for creating persuasive authority that a party or an attorney representing a mortgagor would reasonably be concerned about, but that the judge may have a bias against mortgagors. If the judge's disclosure reflects that the judge has had bad experiences with non-paying mortgagors, the party may very well have a reason to seek to have the judge disqualified.
Summer School in the Greek Isles: studying comparative legal professions in the sun
Posted by Alan Childress
This is the time of year when I remind readers (and, I hope, Googlers of the phrase law school summer abroad programs in Greece or just "sick of winter") that -- somewhat related to the subject of this blog -- Tulane Law School offers my course June 19-July 8, 2011 in "Comparative Legal Professions" on the beautiful care-free and car-free island of Spetses. In Greece, on the Saronic Gulf of the Mediterranean Sea (the happy part of Greece right now). We offer five other courses as well, including contract theory, conflict of laws, the German legal system, intro to Greek, and marine pollution. We have two other summer schools on the large island of Rhodes (before and after, for instance if you want to combine two as many students do). Classes are in English and admit students from law schools all over the world. Just contact assistant director J. Sayas for more info, at ac 504 and number 865 - 5981 or email jsayas AT tulane.edu. She knows about Spetses and Rhodos too. Website here.
This year the program includes optional ties to the environmental research group Archipelago. Note: Achipelago also sponsors a non-credit internship program that is available to the registrants of the Spetses summer session.
Here is a link to the family-run resort hotel we stay at (amazingly affordable, includes two meals per day) on Spetses: enjoy the view! And links to my course info from past years. Your room looks out on the view left. There is no immediate deadline, but it is best to sign up by early March to ensure the program continues.
Lawyer Gone Wild
The South Carolina Supreme Court has imposed a definite suspension of 90 days in a case involving the following facts:
In March 22, 2009, respondent self-reported his arrest for Aggravated Battery to ODC. The arrest occurred as a result of a bar fight between respondent and three other individuals on March 15, 2009, in Savannah, Georgia, during which one of the other individuals was struck in the head and/or face with a beer bottle. Respondent represented that alcohol was involved in the incident and independently sought treatment for alcohol abuse and anger management.
On October 26, 2010, respondent entered into a negotiated plea for Aggravated Battery and received a five (5) year probationary sentence with special conditions, including payment of restitution and community service. The sentencing order contains a provision that respondent will be considered eligible for termination of probation upon the completion of any period of suspension of his law license in South Carolina. Respondent has entered into a restitution agreement and has fully complied with the agreement by paying $40,000 in restitution. Respondent has been forthright and fully cooperative with ODC.
The case is Matter of Wild. (Mike Frisch)
The Cobbler's Children PLLC
The North Carolina Court of Appeals reversed a number of rulings of the Special Superior Court for Complex Business Cases and remanded for further proceedings in a matter involving the breakup of a PLLC.
The court started the opinion with an old saying that "the cobbler's children have no shoes."
Lawyers may suffer from the same problems, if they are too busy dealing with their clients' legal affairs to address their own. This cases arises because the members of a law firm organized as a PLLC did not adopt an operating agreement or any other documents governing the operation of the PLLC. In theit actions and communications relevant to the individual plaintiffs' cessation of practice with the indivual defendants, the parties at times seem to treat their business as a partnership and at other times as a PLLC, and certainly a PLLC has elements of both types of business entities.
The court addressed a number of standing issues stemming from the breakup of a firm founded in 2000. (Mike Frisch)
February 7, 2011
Professor Suspension Upheld
The Washington State Supreme Court reversed a Court of Appeals order and held that Western Washington University did not violate the Administrative Procedure Act by closing a disciplinary hearing against a tenured associate professor in the Theatre Arts Department. The school had suspended the professor for two academic semesters.
The court's opinion sets out facts that included carrying a registered firearm and a large knife on campus and in the classroom, coupled with repeated expressions of a desire to kill people. He told a female professor that "she better keep her legs closed, because she could not be expected to teach students the same way she got her doctorate." There were other insults as well, including his telling a student who had returned to class from chemotherapy that not offering her work for review "would be just the same as dying from cancer."
Hat tip to the web page of the National Association of College and University Attorneys. (Mike Frisch)
Nixon's The One!
The Delaware Supreme Court has ordered the immediate suspension of an attorney, concluding that sufficient evidence of ethical misconduct had been presented to support the conclusion that the interests of justice require such action.
For those not old enough to remember, the title refers to another candidate who later ran afoul of the Bar.
Update: A report from Delawareonline. (Mike Frisch)
Not Reciprocal But Disbarable
The Georgia Supreme Court has disbarred an attorney in a matter that started as reciprocal discline imposed by a Georgia federal district court. The court declined to impose in light of a 2009 holding that "reciprocal discipline applied only to disciplinary actions taken by other licensing jurisdictions as opposed to individual courts."
After the decision not to discipline on a reciprocal basis, the State Bar filed charges. the attorney filed a petition for voluntary discipline that also involved admissions in another matter. The court here conckluded that the admissions justified disbarment. The attorney had prior discipline and continued to argue that he was not at fault. He also failed to refund a fee notwithstanding a judgment against him. (Mike Frisch)