Friday, March 4, 2011

First Appellate Brief Deemed "As Brazen A Piece Of Misrepresentation As We Have Ever Seen"

A recent public reprimand is summarized on the web page of the Massachusetts Board of Bar Overseers:

Beginning in 2006, the respondent represented a window company in litigation with a homeowner concerning the installation of replacement windows. After a district court trial in July 2007, the court entered a judgment for the window company on the contract, and a judgment on the homeowner’s counterclaim for breach of contract with double damages and attorney’s fees under M.G.L. c. 93A. The specific facts found to warrant c. 93A damages were the company’s unauthorized charge on the homeowner’s credit card and a collection telephone call made to the homeowner’s husband while hospitalized.

Upon reconsideration, the trial court rescinded the c. 93A damages and attorney’s fees on the sole basis that the homeowner had failed to serve a c. 93A demand letter on the window company detailing the unfair and deceptive acts that warranted c. 93A relief. The homeowner appealed to the Appellate Division of the District Court from the decision rescinding the c. 93A damages.

The respondent filed the window company’s brief and a supplementary appendix in August 2008. In the statement of facts section, the respondent falsely stated: “For purposes of the appeal, the plaintiff will rely upon and adopt the findings of fact set forth in the trial judge’s Amended Decision and Order. Those findings are as follows….” There followed nearly three pages of single-spaced and indented text purporting to recite the trial court’s findings of fact. In introducing and formatting the statement of facts in this fashion, the respondent intended to state and imply that the statement included a full verbatim copy of the trial court’s findings. However, the respondent’s recitation of facts did not include all of the trial court’s findings. Among other things, the respondent intentionally left out all reference to the hospital telephone call, and references to the credit card charge as “unauthorized”, without the use of ellipsis or other indication of editing.

After a hearing before the Appellate Division of the District Court on November 7, 2008, the court issued an opinion. The court agreed that c. 93A, § 9(3), exempts counterclaims from the requirement of filing a demand letter, but upheld the lower court’s decision to rescind double damages because the window company did not have sufficient notice of the basis of the c. 93A claim.

The court further found that the respondent engaged in “as brazen a piece of misrepresentation as we have ever seen,” by deleting “certain words, phrases and sentences without use of an ellipsis, or any other indication of editing.” The court imposed double costs of the appeal upon the window company, to be paid by the respondent to the homeowner, and awarded appellate attorney’s fees to the homeowner.

The respondent’s conduct in falsely representing that the statement of facts was a complete presentation of the findings of the lower court violated Mass. R. Prof. C. 8.4(c), (d) and (h).

In mitigation, the respondent had never filed a brief on appeal before this. The deletions from the facts of the unauthorized credit card charge and the telephone call to the client’s hospitalized husband seeking payment were intended as argument. In further mitigation, the respondent frequently referred to the unauthorized credit card charge and the telephone call to the client’s hospitalized husband in the statement of the case and the argument section of his brief. The court recognized the disparity in the facts and there was no harm.

(Mike Frisch)

March 4, 2011 | Permalink | Comments (1) | TrackBack (0)

Home Alone With The Plants

The Colorado Hearing Board has imposed a six-month suspension of a non-practicing attorney for possession of a controlled substance. The circumstances that led to the arrest and felony charges are set forth in the order imposing sanctions:

At the sanctions hearing, Respondent explained the events underlying the criminal proceedings. Respondent and her husband were traveling on February 7, 2009, and had left their seventeen-year-old daughter home alone. A party involving other teenagers took place at Respondent’s home that evening, and the police were called to investigate. While at Respondent’s home, the police discovered a number of marijuana plants, as well as sixteen grams of psilocybin mushrooms.
Respondent has held a license to cultivate medical marijuana in Colorado since approximately 2002. She testified that she uses marijuana to treat her anxiety, depression, herniated neck, and irritable bowel syndrome. Although Colorado law generally permits licensed individuals to have no more than six marijuana plants at any time, Respondent testified that she had at least forty plants on February 7, 2009.

Respondent explained that she decided to enter her Alford plea to the psilocybin charge because she could not risk going to prison and leaving her daughter without a home. At the sanctions hearing, she asked that the Hearing Board impose a sanction for her misconduct in growing an excessive number of marijuana plants but not for her alleged conduct regarding psilocybin mushrooms.

The board denied the attorney's request to impose the suspension nunc pro tunc to the date of an interim suspension imposed in the matter. (Mike Frisch)

March 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The One And Only

The Pennsylvania Supreme Court has imposed a year and a day suspension of an attorney who, save for the case at issue, had never engaged in the active practice of law. The attorney was admitted in 1995. The misconduct involved unauthorized practice while on inactive status with the Bar. The case was "the one and only case he was [ever] involved with."

The attorney was asked to assist a  lawyer who  represented a client in a domestic relations matter. At the time, the attorney was in good standing. He providing services until he went on inactive status in 2002. He did not notify the client and continued to assist the other lawyer.

The lawyer he was assisting became ill, taking disability status in 2004 and dying in 2008.The attorney's motivation was to assist the disabled lawyer and the client. He received no fee for his efforts. Rather, he got disciplined.

The sanction was imposed by consent and shows how seriously Pennsylvania treats unauthorized practice. Whether on inactive status (as here) or suspended for non-compliance with CLE obligations, let the lawyer beware. (Mike Frisch)

March 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Disbarred Over $1,100

From the standpoint of attorney discipline, the most important rule is Rule 1.15. This truth is revealed today in a decision of the Maryland Court of Appeals. Failure to perform paid-for services led the attorney down a path to the ultimate sanction.

The attorney was disbarred for misappropriation of a total of $1,100 in two bankruptcy cases. He failed to deposit advanced fees into an escrow account and used unearned fees for his own purposes. He abandoned his practice without preforming the agreed services. Both clients complained to the Bar Counsel.

The attorney did his cause no benefit by failing to respond to the complaints. He defaulted on the charges and filed no exceptions to the adverse findings below. The court viewed the failure to participate in the proceedings as, along with the escrow violations, warranting the "gravest sanction."

(Mike Frisch)

March 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Cover Up Worse Than Crimes

The Nebraska Supreme Court has disbarred a 2002 law graduate. The court described his background:

[The attorney] graduated from the University of Nebraska College of Law in May 2002. [He] worked for a University of Nebraska office of research until June 2004, when he went into solo private practice. Beyond one semester of civil clinic during law school, [he] had no experience working in a law office. He was a solo practitioner until September 16, 2009, when he was temporarily suspended.

The story of his practice is told in a series of three consolidated disciplinary matters involving many clients. The court found that the attorney had engaged in multiple violations of seven rules. His acts of neglect were exacerbated by lies to clients and creation of false documents. His claim of depression as a mitigating factor was rejected.

The court on sanction:

While [his] responses to his clients were negligent and lax, he also lied numerous times, and he also created false documents to hide the fact that he had procrastinated. [He] admits that he failed to notify his clients of his temporary suspension and that he failed to provide his clients with their files so that they could seek other counsel. Although there are letters in the record from other attorneys attesting to [his] competence, the record reflects that [his] problems were due in part to poor management of his private legal practice. The record also demonstrates that he did not have sufficient experience to handle some of his cases and that he did not seek assistance when he realized he did not have the necessary information or skills.

(Mike Frisch)

March 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Enough Alleged

The New York Appellate Division for the First Judicial Department has held that the allegations of legal malpractice in an amended complaint were sufficient to withstand a motion to dismissat an early stage of the proceedings:

The amended complaint alleges that defendant was negligent in failing to advise Boylan International properly, that defendant's negligence caused Boylan's loss, and that Boylan sustained actual damages. Specifically, it alleges, inter alia, that defendant failed to mount a defense to Boylan's tax assessment arrears based on Blackstar Publ. Co. v 460 Park Assoc. (137 Misc 2d 414 [1987] [escalation clauses should not be applied where the tax increase is caused by extensive renovation that does not inure to the tenant's benefit]), negotiated a settlement less beneficial than simply paying the demanded amount, and coerced Boylan into executing the settlement although it knew of the dire consequences thereof. "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel.".... The amended complaint further alleges that, but for defendant's negligence, Boylan would not have had to declare bankruptcy and incur additional attorney's fees. These allegations are sufficient to withstand a CPLR 3211(a)(7) motion. At this stage, plaintiff does not have to show a "likelihood of success," as the motion court found, but is required only to plead facts from which it could reasonably be inferred that defendant's negligence caused Boylan's loss. Plaintiff also does not have to show that Boylan actually sustained damages but is required only to allege facts from which actual damages could reasonably be inferred. (citations omitted)

(Mike Frisch)

March 4, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

Thursday, March 3, 2011

Hillman on Law Firm Risk Management in an Era of Breakups and Lawyer Mobility

Posted by Jeff Lipshaw

Robert Hillman (UC Davis) has posted "Law Firm Risk Management in an Era of Breakups and Lawyer Mobility: Limitations and Opportunities" on SSRN.  Here is the abstract:

To say that law firms and lawyers are restricted by the norm of client choice does not mean they are not without options in structuring their relationships in ways that may affect their positions as opposing parties should litigation or disputes develop because of breakups and lawyer mobility. This article explores risk management opportunities with a particular emphasis on avoiding litigation or, if that is not possible, affecting the outcome of litigation. It discusses the role of the partnership agreement and limitations on law firm partnership agreements, including difficulties of negotiating and amending agreements, centralized management as an agreement substitute, past practices as agreement waivers, and challenges to enforcement of agreements. Particular attention is given to five issues that often are inadequately addressed in law firm partnership agreements; these include intellectual property rights, departure process, partner removals and dequitizations, winding up, and dispute resolution.

March 3, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Sex With Clients Draws Suspension, Not Probation

The Florida Supreme Court affirmed findings of misconduct where a defense attorney had engaged in sexual relationships with two clients. However, the court rejected  the referee's proposed probation in favor of a one-year "rehabilitative suspension."

The attorney was admitted in 2006. He did not have written retainer agreements and received no fee from either client. He provided financial assistance to both clients on several occasions. He also asked one of the clients to refer prospective clients to him.

The court found that the attorney had engaged in a conflict of interest:

While the attorney did not trade legal services for sexual favors, his conduct undoubtedly gave the appearance of impropriety. [The attorney] never entered into a written fee agreement with either client, he never received any monetary fees from either client, and he repeatedly met with both women at their homes or in restaurants to discuss their cases, rather than in a professional office setting.

The court rejected probation for the violation of multiple ethics rules. (Mike Frisch)

March 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Chief Drug Prosecutor Will Become Inmate

DetroitNews.com has a story today about a former Wayne County chief drug prosecutor's guilty plea to a charge of misconduct in office:

[The former prosecutor], [a] Wayne County Circuit Judge...and two Inkster police officers were accused of illegally hiding the identity of a paid informer who led police to bust a Downriver bar owner with more than 100 pounds of cocaine. The four were charged almost two years ago by Mike Cox, then Michigan's attorney general.

The case was delayed by exhaustive appeals that reached the Michigan Supreme Court, but pressure built this week when the Inkster drug investigators...took plea bargains in which all of their felony charges were dismissed.

Both pleaded guilty to misdemeanor charges of neglect of duty and agreed to testify against their former co-defendants — [the former prosecutor and the judge], who is set to go on trial in May on a single count of misconduct in office.

Felony misconduct carries a maximum sentence of up to five years, but the prosecutor's recommendation of a six-month sentence for [the former prosecutor] was accepted Wednesday by Wayne County Circuit Judge Timothy Kenny, who will sentence and immediately send [her] to the Wayne County Jail on March 28.

"Jail time was a requirement for us because she was the ringleader in a case that has permanently scarred our criminal justice system," said John Sellek, spokesman for Michigan Attorney General Bill Schuette. "This should send the message that no one is above the law, especially those charged with upholding our laws."

(Mike Frisch)

March 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Handyman's Daughter

One of the most disturbing trends I have seen is reflected in disciplinary charges recently brought by the Illinois Administrator. The complaint  (which involves as yet unproven allegations) tells a story that, if proven, reflects shame on the legal profession.

The allegations involve a woman who granted power of attorney to a friend in 2000. At the time, she was 86 and has no natural heirs or descendants. The power of attorney was in force until January 2008, when the woman was 94 and suffering from dementia.

The friend had discussed the situation with a handyman in her building. As a result, the handyman's daughter (a 25 year old waitress at Cafe Europai Chicago) became one of the woman's two live-in caregivers.

The attorney prepared a power of attorney for the handyman's daughter without taking any steps to determine the woman's competency. The complaint alleges power of attorney was used to take over $400,000 of the woman's estate.

The attorney also is alleged to have drafted a will for the woman which made the handyman's daughter her sole heir:

On or about September 7, 2008, P. [the woman] contacted Respondent and requested his assistance in connection with the preparation of a will.

At the time he agreed to prepare a will for P., Respondent took no steps to determine the state of [her] health. Further, at the time he agreed to prepare the will, Respondent did not make a reasonable inquiry into P.'s capacity to understand or execute a will. Had he done so, he would have discovered that P. was suffering from dementia, and that she was incapable of making personal and financial decisions on her own behalf.

Between September 7, 2008, and September 15, 2008, Respondent prepared a will for P. pursuant to her request. The will named [the handyman's daughter] as P.'s sole heir.

On September 15, 2008, [the handyman's daughter] and P. came to Respondent's office, and Respondent met with P. outside [daughter's] presence to discuss the will. During that conversation, Respondent did not ask P. any questions regarding the nature or extent of her assets, or how she held title to them.

At no time prior to, on, or after September 15, 2008 did Respondent take any other steps to obtain any information regarding the assets in P.'s estate.

At no time prior to, on, or after September 15, 2008 did Respondent make a reasonable inquiry into Polachanin's capacity to understand or execute the will. Had he done so, he would have discovered that P. was suffering from dementia, and that she was incapable of making personal and financial decisions on her own behalf.

The ABA Journal has a post today on the problem of elder abuse.

If the charges are proven, I would expect severe discipline to follow. (Mike Frisch)

March 3, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Pennsylvania Discipline Highlights

The fine web page of the Pennsylvania Disciplinary Board has a post describing the most significant 2010 disciplinary cases. The criteria for selection:

Each January we review the disciplinary cases decided by the Pennsylvania disciplinary system in the past year and select the five cases which seem most significant. The criteria we look at include

Unusual or extraordinary fact situations;

Decisions which address legal issues that often come up in disciplinary cases;

Decisions which discuss the meaning of one of the Rules of Professional Conduct or Rules of Disciplinary Enforcement;

Decisions which present reviews of prior cases on a subject;

Decisions regarding situations which may arise regularly in the practice of law.

Among the highlights are a disbarment case involving an attorney who went on a shooting spree that killed five people and critically wounded a sixth victim. (Mike Frisch)

March 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 2, 2011

If I Had A Hammer

From the March 2011 edition of the California Bar Journal:

[An attorney] was suspended for three years, stayed, placed on four years of probation with an 18-month actual suspension and he was ordered to prove his rehabilitation, take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect Dec. 10, 2010.

[He] stipulated that he was convicted of two felonies and a misdemeanor, misconduct that warrants discipline.

In 2008, he was found guilty of misdemeanor driving under the influence and driving with a blood alcohol content of more than .08 percent. He completed a nine-month first offender program, and paid fees and a fine.

He was arrested again and pleaded no contest to felony spousal battery after his wife suffered swelling on her forehead, a cut lip, scratches on her thigh and bruises on her upper legs and buttocks. She refused medical attention. [The attorney] suffered bruising on his thigh. He enrolled in a substance abuse program and a year-long program for batterers.

Several months later, [he] again was arrested and pleaded no contest to assault with a deadly weapon. He had met a man in a bar, the two stayed overnight at the home of another man and in the morning, without explanation, Kinney hit the first man on the forehead with a hammer. The victim was treated for cuts, redness and swelling on his forehead.

In mitigation, [the attorney] had no discipline record, he cooperated with the bar’s investigation, and he has alcohol and mental health problems and emotional and family problems.

(Mike Frisch)

March 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Defense Attorney Arranges Drug Buy To "Impeach" Informant; Criminal Conviction Affirmed

The Indiana Court of Appeals has affirmed a criminal conviction for attempted possession of marijuana by a criminal defense attorney who had claimed his actions were legally justified in defense of a client. It is quite a tale.

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant. His plan was to destroy the informant's credibility by showing that he was still dealing drugs. He arranged for two juveniles to purchase marijuana from the informant and assured the two that the conduct was legal.

He provided the juveniles with $200 to fund the purchase, recorded the serial numbers and arranged to tape the buy. The buy went down, but the juveniles were not totally trustworthy. They used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney did not take possession of the drugs, but told the juveniles to hold the evidence. Once again they proved less than trustworthy. They smoked it instead.

The attorney sought the $200 from the client's mother, telling her that it was a litigation cost.

The attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. As a result, he was charged with the crime.

The court rejected a number of contentions. The attorney did not stand on the same footing as a law enorcement official conducting an undercover drug buy:

In sum, [the attorney] asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense [of] his client...This is not a close case."

Thanks to Don Lundberg for sending this along. (Mike Frisch)

March 2, 2011 in Current Affairs, Professional Responsibility | Permalink | Comments (4) | TrackBack (0)

Tuesday, March 1, 2011

Nothing Personal

The Tennessee Supreme Court has this summary of a recent decision:

John Jay Hooker has filed a motion requesting this Court (1) to set aside its June 21, 2010 order directing the Clerk of the Appellate Courts to decline to accept any of his further filings in this case and (2) to rescind its January 7, 2010 order enforcing the October 20, 2008 order of the Chancery Court for Davidson County suspending his license to practice law for thirty days. Mr. Hooker has also requested that all the members of the Court recuse themselves from this proceeding because they “are prejudiced against him as a consequence of a contentious political dispute before the legislature . . . regarding the [c]onstitutionality of the [r]etention [e]lection [s]tatute.” In order to address Mr. Hooker’s first two requests, the Court must first address his renewed insistence that all the members of this Court are disqualified from any proceedings involving his law license. It is, therefore, ordered that the Clerk of the Appellate Courts is directed to accept and file the motion lodged by Mr. Hooker on January 14, 2011. It is further ordered that Mr. Hooker’s motion requesting all the members of this Court to recuse themselves from this proceeding is denied.

The attorney has filed lawsuits over nearly two decades "challenging the financing of elections by officials running for local, state, and federal office."

The court here denied the attorney's motion to recuse the entire court as

[n]o reasonable person familiar with the practice of law could conclude that the members of this Court have any personal interest in [the attorney's] law license. None of the members of this Court have personal knowledge of the facts of this case other than the facts appearing in the public record. Finally, no member of this Court has in the past exhibited or entertained personal bias or prejuduce against [him] in any personal or professional dealings with him.

The attorney is the subject of this Wikipedia entry. (Mike Frisch)

March 1, 2011 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Insurance Coverage Law Specialty Proposed

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio will accept public comment until March 29 on a new field of law area of specialization: insurance coverage law.

Gov. Bar R. XIV, Section 2(C)(1)(a) through (e) requires that the Commission on Certification of Attorneys as Specialists (CCAS) recommend to the Supreme Court the fields of law subject to specialization designation.

On June 25, 2010, the Commission proposed insurance coverage law as a specialty area in Ohio with the following definition: the area of law involving issues between insurers and policy holders concerning the rights and responsibilities that arise under insurance policies, including the duty of good faith.

The Supreme Court established the CCAS to identify specialty areas and to set minimum standards for certification as specialists. After a specialty area definition recommended by the CCAS has been approved by the Court, agencies that have programs of certification in the defined area apply to the CCAS for recognition that their program meets the minimum standards. By this process, the agency that applied is approved to certify Ohio attorneys as specialists in the field of law.

Access the text of the proposed area of specialization. Comments should be submitted in writing to:

Susan Christoff, Director, Attorney Services Division
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or susan.christoff@sc.ohio.gov

(Mike Frisch)

March 1, 2011 in Law & Business | Permalink | Comments (0) | TrackBack (0)

A Period Of Suspension Proposed

The Illinois Review Board has recommended a suspension of five months and a professionalism course for, among other things, misconduct by the attorney who represented the plaintiff in an employment discrimination case. When opposing counsel raised an issue of possible document forgery, the attorney responded with a lawsuit:

On December 13, 2004, the Respondent filed a defamation suit in the Circuit Court of Cook County against attorneys Karen Osgood and Thomas Piskorski; their law firm, Seyfarth Shaw; URA [the defendant in the employment case] ; and URA's in-house attorney, David Gassman. The Respondent alleged that the defendants defamed him by accusing him of participating in the forgeries, publishing their accusations in documents filed in the district court, and discussing the accusations with URA attorneys and employees. The Respondent filed the initial complaint and an amended complaint himself but later retained attorney Mitchell Asher, who filed a second amended complaint. In the second amended complaint, the Respondent added the allegation that Ms. Osgood, Mr. Piskorski, and Seyfarth Shaw invaded his privacy because the Chicago Daily Law Bulletin reported on one of the district court's opinions that criticized the Respondent. Pursuant to the defendants' motion to dismiss and motion for sanctions, the circuit court dismissed the Respondent's second amended complaint with prejudice on the ground that the attorney litigation privilege barred the Respondent's claims. The court ordered the Respondent to pay sanctions in the amount of $21,468.04.

The Respondent appealed the circuit court's orders, and represented himself in the appeal. The Illinois Appellate Court for the First District affirmed the dismissal of the Respondent's cause of action.

The attorney was also found to have made false accusations against a judge in an unrelated matter. The judge had ruled against his client on a number of issues and on the merits. The attorney responded:

The Respondent filed a post-trial motion on January 18, 2005. In it, he stated numerous times that Judge Dolan ignored the law, chose to base his rulings on false evidence, manipulated the evidence in favor of [opposing party] Cerniglia, and acted as an advocate for Cerniglia. The Respondent further stated that "[t]he absolute failure of the proofs on behalf of the Defendant caused what constitutes a judicial conversion."

In subsequent motions and responses to motions filed by Cerniglia, the Respondent repeated his accusations that Mr. Pesek committed perjury, Mr. Adamski and Ms. Conti suborned perjury, and Judge Dolan acted as an advocate for Cerniglia.

The board stated as to sanction:

...the Respondent's unfounded accusations against Judge Dolan and the frivolous claims or positions he asserted in three separate matters warrant a period of suspension. The Respondent's misconduct is aggravated by the fact that he wasted the time and resources of the federal and the Illinois courts, caused needless expense for his opposing parties, and harmed Judge Dolan by maligning his integrity. In the Respondent's favor, we consider the positive character evidence he presented, his lack of prior discipline in approximately 35 years of practice, and his cooperation in the disciplinary proceedings.

(Mike Frisch)

March 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, February 28, 2011

Thy Brother's (Book)Keeper

In a defamation action brought against an attorney who had defended a criminal matter against an embezzling former law firm employee, the New York Appellate Division dismissed claims against a third-party defendant but allowed the defense that the statements at issue were true. The court described the facts:

The plaintiff Peter J. Galasso, a partner in the plaintiff law firm Galasso, Langione & Botter, LLP (hereinafter GLB), represented Stephen Baron in his divorce action. Baron designated GLB as his escrow agent in June 2004, to hold almost $5 million in an escrow account. Peter J. Galasso's brother, Anthony Galasso, was GLB's bookkeeper. In January 2007, Anthony Galasso confessed that he had stolen approximately $4.4 million from the escrow account. The defendant third-party plaintiff, Thomas F. Liotti, is a criminal defense attorney who represented Anthony Galasso in the criminal action against him. Anthony Galasso eventually pleaded guilty to all 22 counts charged in Nassau County Indictment No. 2349N/2007 and, in his allocution, stated that the attorneys at GLB played no role in his crimes. Following Anthony Galasso's arraignment, Liotti made a statement to a reporter, which was published in the October 25, 2007, edition of Newsday, in effect, accusing the attorneys at GLB of "[d]ipping into company accounts." The plaintiffs commenced the instant action, inter alia, to recover damages for defamation. Thereafter, Liotti commenced a third-party action against the plaintiffs' attorney, Frederick K. Brewington, inter alia, to recover damages for defamation, abuse of process, and intentional infliction of emotional distress.

The defense of truth of the statements may go forward:

Liotti proffered, inter alia, an affidavit by Anthony Galasso, wherein Anthony Galasso now stated that he was "directly ordered" by the plaintiffs Peter J. Galasso and James R. Langione to "falsify disbursement expenses for clients for the express purpose of making more money for Peter [J. Galasso] and James [R. Langione]."

(Mike Frisch)

February 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Internet Credit Counseling Course Taken By Attorney, Not Client

The New York Appellate Division for the Second Judicial Department has imposed reciprocal discipline based on a sanction of a federal bankruptcy court. The court describes the facts:

By Stipulation and Order of the United States Bankruptcy Court for the Eastern District of New York, dated January 22, 2009, the respondent was suspended for a period of one year from engaging in the practice of law before the United States District Court, Eastern District of New York, and the United States Bankruptcy Court, Eastern District of New York. The Stipulation and Order resolved allegations made by a former client of the respondent, for whom the respondent had filed a bankruptcy petition. The respondent acknowledged that he had filed a certificate of credit counseling over the Internet stating that his client had completed a required credit counseling course before filing the bankruptcy petition, when, in fact, he had taken the credit counseling course on behalf of his client. The respondent was permitted to conclude certain specified bankruptcy matters currently pending. He was directed to expeditiously transfer all other bankruptcy matters to substitute counsel. At the end of the one-year period, the United States Trustee would not object to the respondent's reinstatement, provided that he satisfactorily complied with all terms of the Stipulation and Order, was in good standing before the New York State Bar and the United States District Courts, and complied with all requirements under the applicable provisions of the law to resume his practice before the United States District Court within one year after entry of the Stipulation and Order. Prior to seeking reinstatement, the respondent was required to complete 12 hours of Continuing Legal Education (hereinafter CLE) in the area of bankruptcy and 4 hours in the area of ethics. In addition, the Bankruptcy Court imposed a fine in the sum of $40,000. After paying the fine and obtaining the required CLE credits, the respondent was reinstated to practice by order of the United States District Court, Eastern District of New York, dated March 8, 2010.

The reciprocal sanction is a public censure. (Mike Frisch)

February 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

God's Command And Jury instructions

The New Jersey Appellate Division reversed the conviction of a defendant convicted of murdering his pregnant girlfriend. The court concluded that the jury instructions on the insanity defense require a new trial:

The judge's instructions on the insanity defense did not preclude the possibility that the jury believed the defendant acted on God's command and yet rejected the insanity defense by finding the defendant understood what he did was legally wrong. Because it is not inconceivable that the jury rejected the insanity defense because it did not know that insanity could have been found if defendant knew what he did was legally wrong but nevertheless acted because of God's command, we are compelled to conclude the charge was capable of producing an unjust result.

(Mike Frisch)

February 28, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Former Federal Judge Stripped Of Georgia License

The Georgia Supreme Court has accepted the resignation of a federal judge who pled guilty to a number of drug offenses. The Times Herald had this report on the charges:

[The judge], 67, was arrested Friday shortly after paying an undercover FBI agent $160 for cocaine and Roxycodone, a narcotic pain medication, that he intended to use with the exotic dancer, according to the criminal complaint filed with U.S. District Court. Camp had two firearms in the front seat of his vehicle at the time of his arrest.

The charges against [him] were laid out in an eight-page affidavit released late Monday.

[The judge] met the confidential informant, who recently began cooperating with the FBI, at the Goldrush Showbar in Atlanta in early 2010 and he soon began paying her for sex and buying cocaine from her, according to the affidavit.

In June 2010, [the judge] followed the informant to a drug dealer in Marietta to buy Roxycodone. He was also recorded in a wiretapped telephone call on Sept. 28 talking with her about getting together over the weekend to split more pills and cocaine with her, according to the charges.

He showed up at a Publix parking lot in northeast Atlanta around 7:15 p.m. Friday to meet with the an undercover agent posing as the dealer. When the informant told her she was worried about his safety, the judge told her “I not only have my little pistol, I’ve got my big pistol so, uh, we’ll take care of any problems that come up,” according to the affidavit.

He handed over $160 in cash to pay for the drugs around 7:35 p.m. Ten minutes later, authorities arrested the judge and seized the two guns from the front seat of his vehicle, according to AP.

The judge faces four drug-related charges and one count of possessing firearms while illegally using drugs, according to the affidavit.

Two Georgia judges disciplined in one day. (Mike Frisch)

February 28, 2011 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)