Wednesday, February 29, 2012
SunEthics (the best blog for Florida ethics information, in my view) has an interesting recent post:
Lawyer and his law firm represented 77 plaintiffs in cases against a cruise line ("RCL"). RCL moved to disqualify Lawyer and the firm based on allegations that Lawyer paid an RCL employee "to provide insider information on the cruise line's claims files" so that Lawyer could use the information in negotiations. At the hearing on the disqualification motion Lawyer and the firm stipulated to withdrawal from all 77 cases. The trial court's order allowed the withdrawal and permitted the filing of charging liens for fees and costs, but specified that the merits of any such liens would be adjudicated at a future hearing.
Subsequently it came to light that Lawyer had entered into a "secret agreement with successor counsel" providing that Lawyer would be paid a portion of the funds recovered by successor counsel in the RCL cases. The court held a show cause hearing and thereafter entered an order of criminal contempt, "finding the agreement with [successor counsel] was 'a secret, self-serving and illegal arrangement intended as a means of evading this Court’s order concerning [Lawyer]’s claim to fees and costs from files which he abandoned.'” The court referred Lawyer to the Bar, and Lawyer was disbarred by order of the Florida Supreme Court.
Despite these events, Lawyer filed a motion with the trial court seeking disbursement of costs alleged to have been owed to him in cases that had not yet been settled at the time of the contempt hearing. The court denied that motion, and Lawyer appealed.
The Third DCA affirmed. The motion was legally insufficient, having failed to identify which of the cases on which Lawyer was seeking costs or the amount and description of the costs. Moreover, Lawyer's motion was barred by the trial court's earlier contempt order. The appeals court described Lawyer's conduct in even filing the motion as "a textbook example of legal chutzpah." In a footnote, the court observed that the classic definition of "chutzpah" was "that quality enshrined in a man, who having killed his mother and father, throws himself upon the mercy of the court because he is an orphan." (Citations omitted.) Wingate v. Celebrity Cruises, LTD, __ So.3d ___ (Fla. 3d DCA, No. 3D11-400, 2/8/2012).
A single justice of the Massachusetts Supreme Judicial Court declined to follow a disbarment recommendation and instead imposed an indefinite suspension effective on the date of the attorney's 2007 temporary suspension.
The attorney was convicted of violating a protective order, harassment and intimidation of a witness. He also violated terms of probation.
The justice on sanction:
There is no reason to depart from the presumptive sanction in this case. However, I had an opportunity to observe the respondent for about forty-five minutes, including about thirty minutes for his own oral argument, and I could not help but think that he has unresolved emotional issues that in all likelihood contributed to his difficulties. He was reduced to tears twice during the hearing before me. Although he did not present any evidence in mitigation to the hearing panel, I honestly believe it exists and I am not inclined to order disbarment for this reason. I also note that, although not determinative, the misconduct in this case did not occur in the course of the practice of law.
The attorney must establish that he has "addressed his emotional issues" if he applies for reinstatement.
There may be no crying in baseball, but I guess it sometimes can work in court. (Mike Frisch)
The Wyoming Supreme Court imposed a public censure of an attorney who filed untimely post-trial motions in a criminal case.
The attorney's client was convicted of attempted first degree murder and aggravated assault. The attorney filed motions for judgment of acquittal and for a new trial. He believed that the motions were timely because of the date of the court's written judgment and sentence. In fact, the time had begun to run from the date the verdict was returned, nineteen days earlier.
The trial court denied the motions as untimely.
The Wyoming Supreme Court found ineffective assistance and ordered a new trial. (Mike Frisch)
The Minnesota Supreme Court imposed an indefinite suspension with no right to apply for reinstatement for 90 days in a matter involving the mishandling of a client's case and failure to cooperate with the bar proceedings. The court noted that the attorney had similarly mishandled 11 other cases for 8 other clients from 2003 to late 2009.
The attorney contended that the investigation into his practice beyond the four corners of the initial complaint was improper.
The court disagreed:
The Director's investigation was commenced pursuant to the complaint filed by a former client, not upon the Director's sole initiative. Based on the results of the investigation, which showed [the attorney] had failed to communicate with his client and mishandled his appeals, the Director had a reasonable belief that [he] may have committed similar misconduct in other appeals. The record supports the conclusion that the Director's additional investigation was reasonably related to the complaint, and was appropriate. We therefore conclude that the Director was within his authority to investigate all of the matters alleged in the petition, including those not mentioned in the client complaint that initiated the Director's investigation.
The South Carolina Supreme Court has disbarred an attorney for misconduct that included the misappropriation of a substantial amount of entrusted client funds.
The court commented on the attorney's pro se oral argument before it:
The current allegations, which Respondent has admitted, include misconduct that has resulted in significant harm to his clients. Respondent admitted at oral argument he stole client funds simply to support a more lavish lifestyle. Moreover, Respondent has not raised any exceptions to the Panel's report recommending that he be disbarred. Accordingly, we find disbarment is an appropriate sanction.
Tuesday, February 28, 2012
The Illinois Administrator has filed an amended complaint in a high-profile ethics case brought against a former arbitrator for the Illinois Workers Compensation Commission.
The amended complaint alleges that the arbitrator engaged in improper attempts to expedite payment in her own workers compensation case, made improper statements in another case, improperly attempted to keep a public matter secret and engaged in improper ex parte contacts with counsel.
As we have mentioned before, Illinois pleads detail in its complaints far beyond the "notice pleadings" you see in many if not most jurisdictions. The value of such detail from an educational standpoint is readily apparent here. Many of the factual contentions reference the accused's e-mails, with the e-mails quoted throughout.
Illinois also is one of the very few jurisdictions that posts charging documents on its web page.
For my money, the best web page for information about disciplinary charges is North Carolina. The web page has not just the charges but all of the pleadings, as well as the date, place and time of the hearing and the identities of counsel and the panel that decides the case. This is information that you could not get from most disciplinary systems with a crowbar.
Here, the allegations do not paint a pretty picture of a judicial officer interacting ex parte with counsel:
Respondent, Nadenbush, and Barringer also exchanged ex parte emails making disparaging remarks about Nadenbush’s and Barringer’s opposing counsel in case pending before Respondent, including comments such as calling the opposing counsel an "idiot" (Barringer to Respondent, August 2, 2010); stating that Nadenbush’s opposing counsel was "annoying and a bad lawyer" (Respondent to Nadenbush, January 29, 2010); stating that opposing counsel’s "f’n exhibits – I can’t figure out where the god damn records are and I am pissed!" (Respondent to Nadenbush, March 10, 2010); calling opposing counsel a "dumb ass" (Respondent to Barringer, September 1, 2010); calling opposing counsel an "ass" (Nadebush to Respondent, May 27, 2009).
The ABA Journal had this earlier story. (Mike Frisch)
The New York Appellate Division for the First Judicial Department rejected a plea for private discipline and imposed a public censure as reciprocal discipline based on a sanction imposed by the United States Court of Appeals for the Second Circuit.
The misconduct involved the mishandling of appeals in a number of immigration matters:
Respondent conceded that between December 2005 and August 2007, she defaulted on 28 of 41 petitions for review she filed in the Second Circuit and four petitions filed in the Third Circuit for failing to comply with scheduling orders. However, respondent argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were part of her strategy to gain time to pursue other, more advantageous forms of relief. Respondent further testified that in her experience, the court liberally reopened cases that were dismissed for noncompliance with scheduling orders and it was not until she received the referral order from the CAG that she realized the court was critical of repeated failure to comply with those orders. Although not mentioned in the original referral order, respondent addressed the fact that she had filed at least 19 of the defaulted petitions prior to being admitted in the Second Circuit on March 3, 2006. Respondent admitted that she did not research whether she needed to be admitted for purposes of filing petitions for review, and testified that she relied on information conveyed by an associate in her firm, who had been advised by a court employee that, pursuant to the court rules, an attorney litigating before the court need not be admitted to the bar of the Second Circuit unless she intended to orally argue before the court.
There was mitigation:
In support of mitigation, the [Second Circuit"s Committee on Admissions and Grievances] noted that respondent expressed a genuine commitment to her clients' best interests, including often working for clients who did not pay their fees and for non-responsive clients, evidencing the absence of a dishonest or selfish motive; that she testified about certain medical issues that arose during the time of the first admonition; that she was forthcoming and cooperative with the CAG's investigation; that she expressed credible remorse for her misconduct; that she had taken good faith steps to prevent any recurrences by significantly limiting her caseload and committing to a diligent monitoring of court deadlines; that she appears to be a committed practitioner who provided quality work notwithstanding challenging situations; and that she appears to be well respected in the legal immigration community, as evidenced by her having worked for the Lawyers Community for Human Rights and her having acted as the chairperson of the Federal Bar Association's immigration law committee.
The court the mitigation insufficient to warrant non-public discipline. (Mike Frisch)
The Tennessee Supreme Court suspended an attorney for six months, with credit for 21 days from the termination of his disability inactive status.
At a time when he had no active license, the attorney practiced law in Montana "by signing settlement documents, by using letterhead stating that he was an attorney with addresses in Montana, and by using a bank account in the name of his solo practice."
Complaints were filed by authorities in Washington State and Montana. The attorney is not licensed in either of those jurisdictions. (Mike Frisch)
The Delaware Judicial Ethics Advisory Committee has opined that it would not violate judicial ethics for for Administrative Office of the Courts ("AOC") "to take advantage of an opportunity that would allow for access to LexisNexus electronic legal service for Delaware judges by sharing use with the Department of Justice.
The opinion notes that budget issues had required to Delaware courts "to focus their resources on one electronic research service provider." AOC would be made a joint party to the contract with the DOJ. (Mike Frisch)
Monday, February 27, 2012
A Colorado Hearing Committee has ordered the dismissal of ethics charges against an attorney in connection with his handling of an immigration matter.
The hearing committee concluded that evidence that the attorney's legal advice was incorrect did not establish an ethical violation:
We wish to stress that the legal strategy Respondent undertook would not be appropriate under all circumstances. Not all clients want their lawyer to pursue strategies that have a low probability of yielding relief...we must not quell the crusading spirit of lawyers like Respondent who attempt to rectify injustices they perceive in our legal system. Legal challenges to ingrained assumptions and entrenched practices may initially appear foolhardy, yet ultimately bring about valuable changes in the law.
The hearing board found that the attorney had a good-faith basis for his theories and acted with the client's informed consent. (Mike Frisch)
The Delaware Judicial Ethics Advisory Committee opines that a judicial clerk may not accept a salary advance from a law firm. Such an advamnce "wouls essentially be an interset-free loan from the firm." Clerks may not receive any firm bonuses or moving expenses until their clerkship ends.
According to the Committee:
A potential solution is for the Clerk to work for the summer at the firm, save up funds from her normal salary, and then start the clerkship. Another solution would be for the advance to issue at the beginning of the summer and be repaid in total over the course of the summer, before the clerkship begins.
From The Sentinel on February 15 (www.cumberlink.com):
A district judge in suburban Philadelphia was charged Wednesday with telling her staff not to docket a harassment citation against her adult son and lied to court officials investigating the matter.
The Judicial Conduct Board's misconduct allegations against Downingtown District Judge Rita A. Arnold could, if upheld, result in her suspension or removal from office.
The board, which pursues ethics cases before the Court of Judicial Discipline, also alleged that Arnold improperly transferred the citation against Forrest C. Solomon Jr. to another district judge and told a member of her staff to lie to investigators.
Neither Arnold nor her lawyer, Dawson R. Muth, immediately returned telephone messages seeking comment.
The board said Solomon, who lived with Arnold, was being supervised by the Chester County adult probation office in January 2010 when he failed a drug screen, and 13 days later was cited by a state trooper with summary harassment for an altercation inside the home with his half brother.
The board claims Arnold later told her office manager to ``hold onto'' the citation, and it was not docketed until April. The board claims Arnold did not follow normal protocol when she transferred the case to another district judge in Chester County.
A county court administration worker later recognized Solomon's name, realized he was Arnold's son, and noted what the board said were ``several irregularities during case processing'' of the citation.
Arnold later submitted a written report to the president judge denying she intended to do anything wrong, or obtain favorable treatment for her son, the board complaint said.
The Judicial Conduct Board, which began to investigate after being contacted by the president judge, said Arnold's office manager told investigators that Arnold told her to lie about how the citation was handled.
Arnold was charged with violating ethical rules for district judges as well as provisions of the state constitution.
The Georgia Supreme Court has disbarred an attorney, primarily based on misconduct in a paternity matter.
The attorney was retained by a client who had a DNA test that confirmed he was not the child's father. The matter was continued twice, with the attorney present both times. The case was then mistakenly reset for a Monday rathar than a Wednesday. The error was corrected and notices went out for the Wednesday hearing.
The attorney moved to withdraw prior to the hearing but the motion was not acted on. On the Monday, the client went to the attorney's office, made a fee payment, and went to court. The client realized "that something was amiss" and was advised of the date change. The client came back on Wednesday; the attorney never appeared despite repeated phone calls and assuarnces to the client that she would meet him in court. The matter was dismissed that afternoon.
The attorney falsely claimed in the bar proceedings that she appeared on both Monday and Wednesday. Four people testified to the contrary. (Mike Frisch)
The Maryland Court of Appelas reversed the Court of Special Appeals and held that 'the consideration that one party was represented on a pro bono basis, in an award of attorneys' fees to the other party who had retained counsel was erroneous under [the statute governing awards of costs and fees in family law matters]" and remanded for reconsideration of the statutory factors.
The case involved a custody modification proceeding. The petitioner was represented pro bono by the Sexual Assault Legal Institute. Her ex-husband retained counsel and accumulated over $70,000 in legal fees.
The trial court ordered the petitioner to pay her ex-huband over $30,000 in legal fees and costs because "she was in a better financial position than [the ex-husband], due to her having received pro bono representation..." (Mike Frisch)
Friday, February 24, 2012
The Alaska Supreme Court has held that an employer may not invoke the arbitration process of the State Bar in litigation filed by former in-house corporate counsel for wrongful termination.
The court concluded that the bar's arbitration process applied to only a small part of the disputed claims. The civil litigation instituted by the discharged attorney involved employment claims rather than issues relating to disputed legal fees. Thus, the matters are not subject to arbitration rather than litigation. (Mike Frisch)
An attorney who engaged in misconduct in connection with a real estate transaction and compounded the problem by testifying falsely in the ensuing bar proceedings has been suspended for eighteen months by the New York Appellate Division for the First Judicial Department.
As to sanction:
With regard to the severity of the sanction to be imposed, given the aggravating factors in this case, and their weight as balanced against the mitigating factors, we find that a suspension for a period of eighteen months is warranted. While this matter involves a single transaction, respondent made repeated, intentional misrepresentations in several legal documents. He then compounded this misconduct by giving false testimony at his sworn deposition before the Committee. His attempt to portray himself as an inexperienced real estate practitioner, along with his failure to acknowledge his misconduct and his lack of remorse, are aggravating factors which support the Hearing Panel's recommendation of an increased suspension of eighteen months. (citations omitted)
There are places where false testimony in a disciplinary matter will get the attorney disbarred. (Mike Frisch)
The Michigan Attorney Discipline Board agreed with a panel order of disbarment in a case involving an attorney convicted of possession of child pornography. The board found that there was jurisdiction to impose bar discipline even though the attorney was suspended when the criminal conduct took place.
Further, disbarment was the appropriate sanction for the offense as "[a]t least one image [possessed by the repondent] depicted penetration of a pre-pubescent child, which involved sadistic or masochistic or other depictions of violence." The attorney also distributed images to others on line. (Mike Frisch)
An attorney who engaged in misconduct in several matters was suspended without possibility of reinstatement for one year by the Iowa Supreme Court.
One of the matters involved his court appearence in a case six days after he had signed for mail that informed him that he had been suspended from practice. The court declined to conclude that, having signed for the certified mail, he could remain "blissfully ignorant" of his suspended status.
According to the court, an "ostrich-like, head-in-the-sand approach should not insulate attorneys from an inference of actual knowledge" of suspension from practice. Further, the attorney falsely disclaimed such knowledge to the judge that he appeared before. (Mike Frisch)
The Nebraska Supreme Court has disbarred an attorney whose neglect of a personal injury matter led to dismissal of the case. The attorney therafter "strung along [the client] for nearly 2 years" into believing that the case was still active.
The referee found that the attorney had falsely claimed to have advised the client both orally and in writing of his intention not to proceed with the matter. The attorney used a "Worlddex" document system that provides sequential numbers to documents that he creates. The document system resulted in evidence that cast substantial doubt on the claim of wrtitten notice to the client. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has imposed a suspension of two years of an attorney who failed to properly handle supervise the operation of his law firm's escrow account.
The court found that the sanction determination was influenced by the following:
In determining an appropriate measure of discipline to impose, the Court notes the respondent's testimony as to the negative impact the conduct of his bookkeeper and brother, Anthony Galasso, has had on his personal and professional life; the changes he has made with respect to his business practices; his cooperation in connection with the criminal prosecution of his bookkeeper and brother, Anthony Galasso; and his pursuit of lawsuits against, among others, Signature Bank, in an effort to reclaim the misappropriated Baron funds, as well as the funds misappropriated from the Estate and from Adele Fabrizio. In addition, the Court considered the 37 letters of good character submitted on the respondent's behalf. However, we find that the respondent failed to maintain appropriate vigilance over his firm's bank accounts, resulting in actual and substantial harm to clients.