Tuesday, July 31, 2012

Don't Knock The Block (Billing)

An award of fees to an attorney who sued his client in a matrimonial case was affirmed by the New York Appellate Division for the First Judicial Department:

"Where there has been substantial compliance' with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for" (Edelman v Poster, 72 AD3d 182, 184 [2010], quoting Flanagan v Flanagan, 267 AD2d 80, 81 [1999]). The applicable rule, 22 NYCRR 1400.3, mandates that an attorney in a matrimonial matter file a copy of the signed retainer agreement with the court, along with the statement of net worth. Here, the record shows that a copy of the executed retainer was filed with the court on May 14, 2004, along with the updated statement of net worth. Even if plaintiff, as substituted counsel, should have filed the retainer within 10 days of its execution, he substantially complied with the requirements by filing the executed copy with the updated statement of net worth. Although it would have been better practice for plaintiff to have put proof of the filing in evidence on his direct case, his failure to do so does not change the fact that he substantially complied with the rule (see Kurtz v Kurtz, 1 AD3d 214, 215 [2003]).

Defendant also argues that plaintiff's billing practices and willful spoliation of evidence should result in sanctions, and dismissal of his claims. Specifically, defendant argues that block billing was improper and that "task billing," which lists the time for each separate task and is an enhanced level of billing, should have been used. However, block billing is common practice among law firms and neither 22 NYCRR 1400.3 nor the retainer agreement calls for task based billing. Regarding the spoliation of evidence allegation, defendant contends that plaintiff intentionally destroyed a particular attorney's individual time sheets, thereby preventing her from using those records to impeach plaintiff. Plaintiff testified at trial that the information from that attorney's individual time sheets was entered into the firm's time entry system, then reviewed by him and incorporated into the firm's bills to defendant. In any event, the time sheets were not key evidence, and thus their alleged destruction did not deprive defendant of the ability to defend against plaintiff's claim for fees(Coleman v Putman Hops. Center, 74 AD3d 1009 [2010], lv dismissed 16 NY3d 884 [2011]). Accordingly, a spoliation sanction is not warranted.

(Mike Frisch)

July 31, 2012 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

The Payoff

The New York Appellate Division for the First Judicial Department has accepted an attorney's resignation and struck him from the roll of attorneys for the following misconduct:

Respondent acknowledges that the law firm in which he was a partner until June 30, 2010, filed a complaint against him with the Committee alleging that from January 2009 to June 2010, respondent used law firm operating funds belonging to his law partner and himself to augment settlement awards to 15 clients for an approximate total of $169,366.62. The complaint states that respondent covered up his neglect of the 15 legal matters by misrepresenting their true status and settlement amounts to several clients and his law partner.

(Mike Frisch)

July 31, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Emotional Injury Damages For Angel's Death

The New Jersey Supreme Court has held that a plaintiff may not recover damages for the emotional injury caused by witnessing the death of her pet dog, a "maltipoo" named Angel.

The court concluded that a pet is property and not the equivalent of a family member.

The defendant's large dog had picked the deceased up by the neck, shook it several times and dropped it, causing the death. (Mike Frisch)

July 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Bank Not Liable For Attorney's Misappropriation

In a case where an attorney had allegedly misappropriated $5 million wired to his trust account by a client, the Massachusetts Supreme Judicial Court affirmed the dismissal of a negligence action brought by the client against the attorney's bank:

When we promulgated Mass. R. Prof. C. 1.15(h), we intended that the protection of trust funds be accomplished by the board through its disciplinary process, not by the beneficiaries of trust funds through a new remedy in tort. See Binns v. Board of Bar Overseers, 369 Mass. 975, 976 (1976) ("The board was established by this court ... acting in accordance with its power to supervise the conduct of attorneys, and the board exists as the disciplinary arm of this court"). The agreement mandated by the rule requires a bank to provide notice of dishonored instruments to the board, and does not establish any procedure to ensure that notice be provided to an attorney's clients whose funds are held in an attorney's "trust account." See Mass. R. Prof. C. 1.15(h). Because the board and bar counsel are generally required to keep confidential all information regarding allegations of misconduct by an attorney, they may give such notice to the beneficiaries of trust funds only where notice is necessary "to protect the public, the administration of justice, or the legal profession." S.J.C. Rule 4:01, § 20(2)(d), as amended, 438 Mass. 1301 (2002). [FN11] See Rule 3.22(a) of the Rules of the Board of Bar Overseers (2012). In addition, although we provide in Mass. R. Prof. C. 1.15(h)(5) that an attorney is "conclusively deemed to have consented to the reporting and production requirements mandated by [Mass. R. Prof. C. 1.15(h) ]," notice to trust beneficiaries would fall outside the scope of this consent because such notice is not mandated by the rule.

Although clients may benefit from board discipline or from bar counsel's investigation, we do not give clients standing to bring formal charges against an attorney; only bar counsel may recommend that formal charges be instituted and only the board may do so. Rule 2.7(3) of the Rules of the Board of Bar Overseers (2012). See Gorbatova v. Semuels, 462 Mass. 1012, 1012 (2012) ( "there is no private right to commence a court action to seek disciplinary action against an attorney"); Slotnick v. Pike, 374 Mass. 822, 822 (1977) ( "it is the Board of Bar Overseers and not private individuals, which is ordinarily responsible for prosecuting complaints against attorneys"). Similarly, if a bank commits a breach of its agreement with the board to provide notice of dishonored checks, the board has standing to seek a remedy in contract for that breach; we will not give a trust beneficiary a separate remedy in tort by making the contractual obligation owed to the board a duty of care owed to the trust beneficiary. [FN12]

Even if a bank's duty to notify the board of dishonored checks were required by statute rather than by a contract mandated by our rule, such a statutory duty would not create a duty of care in tort in the absence of legislative intent to create a private right of action. See Juliano v. Simpson, 461 Mass. 527, 531-532 (2012). "A duty of care must already exist before a plaintiff can use a defendant's statutory violation to support a claim of tort liability." Id. at 532. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990) (where statute does not provide private right of action, "[a]ny liability on the defendant's part" for violation of statute "must be grounded in the common law of negligence").

We conclude that, because there is no evidence that Citizens Bank had actual knowledge of [attorney] Goldings's intended or apparent misappropriation of Go-Best's funds in Goldings's client account, the bank had no duty in tort to take reasonable steps to prevent the misappropriation. Without such actual knowledge, the bank's duty to notify the board of dishonored checks from "trust accounts" arose only from its contractual duty, not from any duty in tort, so the bank could not be liable to Go-Best for any negligence in fulfilling that duty.

The case is Go-Best Assets LTD v. Citizens Bank of Massachusetts, decided today. (Mike Frisch)

July 30, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Third (Branch) Eye Not Blind

Wisconsin Supreme Court Justice Ziegler has recused herself in the matter involving her colleague Justice Prosser:

Before Annette Kingsland Ziegler, J.

 ¶1   This matter is highly unique and presents extraordinary facts and legal circumstances.  On June 25, 2012, Justice David T. Prosser, through his attorney, requested that I disqualify or recuse myself from the above-referenced matter, asserting that I am a material witness who was present at the February 10, 2010, and June 13, 2011, events that are the subject of the complaint.  Justice Prosser has made essentially the same request of each of his six colleagues on the supreme court.  In State v. Henley, 2011 WI 67, ¶2, 338 Wis. 2d 610, 802 N.W.2d 175, this court concluded that "determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought."  Accordingly, this decision addresses my individual position on my recusal or disqualification.  Nonetheless, each justice is presented with a similar fundamental issue.

¶2   The highly unusual issue each justice is called upon to decide is whether he or she, being a material witness to or co-actor in an alleged altercation between two colleagues, may sit in judgment of one or both of the justices involved in the alleged altercation?  The answer to that issue, for me, is an ineluctable "no."

¶3   First and foremost, my conclusion is dictated by the law on judicial ethics.  Pursuant to Wis. Stat. § 757.19(2)(b) (2009-10), "[a]ny judge," including a supreme court justice, "shall disqualify himself or herself from any civil . . . action or proceeding when one of the following situation occurs . . . (b) When a judge is a party or a material witness . . . ."  That rule is echoed by SCR 60.04(4)(e)4. of our Code of Judicial Conduct, which provides that a judge "shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following . . . (e) The judge . . . 4. Is to the judge's knowledge likely to be a material witness in the proceeding." Likewise, SCR 60.04(4)(a) directs that a judge shall recuse himself or herself in a proceeding when the judge has "personal knowledge of disputed evidentiary facts concerning the proceeding."  Again, the law leads me to the irrefutable conclusion that I must disqualify or recuse myself from the above-referenced matter

¶4   My conclusion is also in accordance with the principles of fundamental fairness and the right to a fair and impartial decision-maker, a right that precludes a judge from prejudging a case.[6]  In our country and in our state, everyone, even a supreme court justice, is entitled to a fair tribunal.  Indeed, both the United States Constitution and the Wisconsin Constitution guarantee equal protection under the law.  U.S. Const. amend. XIV, § 1; Wis. Const. art. 1, § 1.  Under the highly unusual factual situation in the instant case, each justice is in the position to have already formed conclusions regarding the nature of the events that occurred on February 10, 2010, June 13, 2011, and prior thereto.  That is, each justice, as a witness, has his or her own perspective on what occurred on February 10, 2010, and June 13, 2011.  As far as I am concerned, there is simply no way for me to separate my personal perceptions and fairly and impartially judge this matter.  Because, at a minimum, the justices are witnesses and all justices are likely to be called as material witnesses in the proceeding, recusal is required.  Frankly, there is no need for a three-judge panel to conduct an evidentiary hearing and make findings of fact, see Wis. Stat. § 757.89, because the justices, the final decision-makers, already know the facts.  Consequently, any findings of fact by the three-judge panel would be window-dressing at best.

¶5   In the recent past, this court has employed the common law "Rule of Necessity" when deciding to adjudicate a particular matter but has never applied the Rule of Necessity in a case in which the justices were also material witnesses.  Under the Rule of Necessity, "where all are disqualified, none are disqualified."  Ignacio v. Judges of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006) (internal quotations omitted).  Given the unique factual situation of the instant case, applying the Rule of Necessity would produce an absurd result: even Justices Bradley and Prosser would presumably be required to participate.  Certainly, application of the common law Rule of Necessity should not result in the defendant, potential defendant, and the witnesses also sitting in final judgment of the case.

¶6   Unfortunately, some parties do not receive their day in court despite wishing to be heard.  For example, some parties are deprived of their day in court because the statute of limitations has passed, a court order has been violated, evidence is suppressed, or a myriad of other circumstances occur that have nothing to do with the merits of the underlying dispute.  Here, if a quorum of four justices cannot hear this matter, this may be one of those circumstances.

¶7   Justice is supposed to be blind, but justice is not supposed to turn a blind eye to the obvious.  An obvious conflict is presented by simultaneously participating as material witness and final decision-maker.  Given these extraordinary circumstances, I simply see no legitimate basis upon which I could participate in this case.  Thus, I respectfully disqualify and recuse myself from the above-referenced matter.

The opinion (with footnotes) is linked here. (Mike Frisch)

July 30, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Saturday, July 28, 2012

Prosecution, Not Persecution, In Indiana

An attorney who had claimed that his prosecution in bar disciplinary proceedings was "persecution" for being a "follower of Jesus" has been suspended for two years without automatic reinstatement by the Indiana Supreme Court.

The court found the persecution claim to be "disingenuous to the extreme."

The attorney has not actively practiced law since the early 1990s. The client retained him in 1983. He was given power of attorney by the client. The client went to a retirement village in 1984. Her health declined and she was moved to a residential care facility. The attorney took control of her finances.

When the attorney failed to pay for her care, the facility was unable to contact him. They reached the client's niece, who was the client's closest relative. She was able to find him after some effort. He told her the money was gone.

She retained counsel, had the power of attorney revoked and was appointed in his place. The attorney refused to provide an accounting required by law and claimed that the amounts he had taken for himself were legal fees.

When bar proceedings followed the court action, he changed his story. He claimed the amounts taken were intended as compensation for his writing and publishing books, including "American Folk Gospel" and a biography of an Indiana evangelist.

The court did not accept the second story, noting that the attorney had vigorously pursued his claim for legal fees in the courts for several years.

The attorney was found to have charged unreasonable fees, violated the business transactions with a client rule, failed to account and other violations in his dealings with the frail, elderly client. The false story was found to constitute conduct involving dishonesty.

He took approximately 1/3 of the client's estate, approximately $100,000.

The court declined to impose disbarment, which it characterized as a "non-event" because he has not practiced for nearly twenty years. If he were disbarred (a permanent sanction in Indiana) he would have "no incentive to come to grips with the pain and suffering he has wrought."

Two justices would impose disbarment. (Mike Frisch)

July 28, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, July 27, 2012

A Common Problem

The Vermont Supreme Court has issued an order directing publication of a hearing panel's "well reasoned discussion of a problem common in legal practice, particularly for small firm and solo practicioners."

The attorney had failed to follow through in a diligent manner on three bankruptcy matters after being filly paid for his services. (Mike Frisch)

July 27, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Failed To Comply With Restitution Order

An attorney who had failed to comply with a restitution order in a disciplinary case will be suspended if he fails to pay before August 27, according to a decision issued today by the Wisconsin Supreme Court.

The court concluded that the violation of its earlier order was intentional:

This was not a situation where an attorney was unable to comply with an order of this court to make specified payments because of the attorney's lack of financial resources.  It was a deliberate choice by Attorney Lister to place other personal expenditures above the payments explicitly ordered by this court.  Moreover, this was not an isolated or short-term action; Attorney Lister engaged in a consistent pattern of disobeying the mandate of this court.  What should have taken just over two years to complete has dragged on for more than four years, and there still remains a sizeable balance that is owed to J.A.'s heirs.

(Mike Frisch)

July 27, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2012

Drug Misdemeanors Result In Suspension

The Delaware Supreme Court has imposed a two-year suspension of an attorney convicted of misdemeanor drug offenses.

The police searched the attorney's home and found marijuana, Ecstasy and firearms.

He was initially charged with several felonies but pled to misdemeanors when it was determined that he was a user, not a seller, of illicit drugs. He has been serving an interim suspension since February 2011.

In mitigation, he is a Gulf War veteran and is a "politically involved, public spirited advocate for open government and good government." He also was a candidate for a state representative position. (Mike Frisch)

July 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure Imposed

A censure has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct that involved the attorney's use of a falsely notarized document to secure the return of bail in a criminal matter:

In determining an appropriate measure of discipline to impose, we note the respondent's prior disciplinary history, which consists of two Admonitions and three Letters of Caution for, inter alia, engaging in conduct prejudicial to the administration of justice, law office failure, failure to fully account for funds on deposit in his attorney trust account, and failure to effectively withdraw from a matter by not taking all steps reasonably practicable to avoid foreseeable prejudice to the client. However, the respondent has recently completed, and earned a certificate for, a course entitled "Business Skills for Attorneys" and has presented numerous letters reflecting on his good works in the community.

(Mike Frisch)

July 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2012

Defendant Must Receive Due Process On Issue Of Forfeiting Right To Counsel

The Minnesota Supreme Court reversed in part and remanded a drug and firearms conviction in a matter in which the trial court determined that the defendant, by his conduct, had forfeited his right to appointed counsel.

The court held that a defendant is entitled to (and here was denied) appropriate due process protections prior to a forfeiture determination.

In a footnote (n. 7), the court also expressed concern about the manner in which the appointed public defender raised the issue. The court found a failure of zealous representation and improper disclosure of confidential information:

Defense counsel, faced with circumstances that prohibit continued services as counsel for the defendant, should seek the court's approval to withdraw from the litigation, without disclosing the underlying reasons...What should not be done is what was done here, in other words, advocating that the client of the Office of the Public Defender should not have counsel provided at public expense.

The court concluded that a client who makes "credible threats to harm an attorney or an attorney's family" may have forfeited the right to counsel. A hearing on remand will be held to determine if the defendant engaged in such misconduct. (Mike Frisch)

July 25, 2012 | Permalink | Comments (0) | TrackBack (0)

Scout's Honor

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUES

1. May a judge give a keynote speech at the local council  of Girl Scouts’ annual business meeting where the meeting’s purposes are to  report on the council’s status and recognize adult volunteers?

ANSWER: Yes.

2. May a judge give a keynote speech at the Girl  Scouts’ annual Gold and Silver Award Ceremony where the speech’s purposes are  to congratulate girls who have earned the highest awards available and encourage  them to be involved in the community?

ANSWER: Yes.

 

FACTS

The inquiring  judge states that she is a lifelong member of the Girl Scouts, and has been  very active in the local council of the Girl Scouts at both the program level and  leadership level.  She resigned from the  Girl Scouts’ Board of Directors upon her appointment to the bench, but the  local council would like to recognize her for her involvement in the Girl Scouts  program.  There is no charge for any of  events at which the inquiring judge has been asked to speak.

But what about Boy Scouts?

The inquiring  judge also asks if there is a prohibition against speaking at the Boy Scouts’  Eagle Award ceremony.  Although the  inquiring judge has not provided any information about the event, and whether  there is a cost to attend, her speech would be permissible under Canon 5 as  long as the facts relating to the Boy Scouts’ ceremony are consistent with this  Opinion.

        (Mike Frisch)

July 25, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

False Financial Aid Statements Draw Disbarment Recommendation

The Illinois Review Board has recommended disbarment of an attorney for false statements to secure financial aid for his daughter's private school education:

As set forth in the Administrator's Complaint and as found by the Hearing Board, Respondent sought financial aid for his daughter's attendance at Frances Parker, a private school in Chicago for the 1999-2000 school year (Count I), the 2002-2003 school year (Count II) and the 2003-2004 school year (Count III). The school required parents applying for financial aid to submit an application, entitled Parents' Financial Statement (PFS). The statement requested information about the parents' income for the preceding year. Parents were also required to submit a copy of their federal income tax returns for the preceding year with the statement.

Respondent prepared and signed the Parents' Financial Statement for each of the years noted. Respondent falsely declared that the information in the document was true, accurate and complete. Respondent submitted false income amounts to Francis Parker on his PFS in order to be eligible for financial aid and with the intent to mislead the school. In addition, Respondent submitted to Francis Parker false income tax returns for the years 2000, 2001 and 2002, substantially understating the income he declared on his tax returns filed with the Internal Revenue Service for those years.

As to sanction:

Respondent engaged in serious misconduct. Over a period of several years, he provided financial aid applications to his daughter's school and included fraudulent tax returns in order to receive a financial benefit to which he was not entitled. As explained, he also failed to cooperate in the disciplinary investigation in many ways. Although Respondent contends that his behavior during the pre-hearing process and the hearing was proper and that he "fully participated in the process," the record demonstrates otherwise. An attorney's conduct in the disciplinary proceedings is a proper consideration when determining an appropriate sanction.

(Mike Frisch)

July 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Disqualification Of Lawyer Advocate

The New York Appellate Division for the First Judicial Department has affirmed the denial of a motion to disqualify attorney Jason Advocate and his firm in litigation:

Twin Capital, an investment management firm, alleges that defendants improperly tampered with and copied information from a computer allegedly belonging to it. Twin Capital is solely owned by nonparty David Simon, against whom defendant Linda Simon has commenced matrimonial proceedings. The computer at issue was at all relevant times located in the marital home, and defendants-respondents assert that it was freely accessible and used by members of the Simon family; Twin Capital disputes this claim.

Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (id.). Here, in the absence of discovery, it is premature to conclude that Jason Advocate is likely to be called as a witness on a significant factual issue (see Harris v Sculco, 86 AD3d 481 [2011]). Even if Mr. Advocate is likely to be a witness, discovery may reveal that his testimony "relates solely to an uncontested issue," one of the exceptions to the rule (see rule 3.7[a][1]). In light of this determination, we need not address the motion court's finding that disqualification "would work substantial hardship" on Linda Simon (rule 3.7[a][3]).

Nor is disqualification required under rule 1.7(a)(2) of the Rules of Professional Conduct (22 NYCRR 1200.0), which provides that, except under certain conditions, a lawyer shall not represent a client where there is a significant risk that the lawyer's judgment on behalf of the client will be adversely affected by the lawyer's own interests (see id.). After consultation with independent ethics counsel, Linda Simon executed a conflict waiver (see rule 1.7[b][4]). At this early stage, defendants-respondents appear to be presenting a unified defense. Thus, any potential conflict is speculative at present. Twin Capital's argument that a conflict exists based on Mr. Advocate's alleged rejection of its offer to settle with Linda Simon is not properly before us. These allegations are contained in affidavits dated after the motion court rendered its decisions.

A person with the last name of Advocate likely had little choice but to become a lawyer. (Mike Frisch)

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Admonition For Failure To Correct False Testimony

A Virginia three-judge court has imposed a public admonition of an Assistant Commonwealth's Attorney for misconduct in the prosecution of a convenience store robbery case.

Two witnesses who were present at the robbery agreed to testify against the defendant, who was not present. Both witnesses denied that they were receiving consideration or benefit for their testimony. This was false, as the prosecutor had agreed to advise sentencing judges of their cooperation and reduced charges against one of them.

The prosecutor "was present while they testified, [and] took no action to correct the testimony of either [witness]."

The defendant was convicted but, when the misconduct came to light, the verdict was set aside.

A pretty light sanction, I'd say. (Mike Frisch)

July 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Justices Rule In Favor Of Judges

The New Jersey Supreme Court has held that an act which "subjects sitting judges to increases in their pension and healtyh care contributions" violates the New Jersey Constitution's "No-Diminuation" clause.

The court majority concluded that the act "serves a legitimate public policy goal, but that goal, as applied to judges, must be achieved through constitutional means."

Two justices dissented, and would hold that the court majority "incorectly imposed on the State the burden of proving the constitutionality" of the act. (Mike Frisch)

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Proceedings Will Go Forward In Judicial Misconduct Matter

A report from the New York State Commission on Judicial Conduct:

The Commission authorized formal disciplinary charges against Lee L. Holzman, Surrogate of Bronx County, in January 2011. Judge Holzman filed an Answer, and the matter was referred to retired Supreme Court Justice Felice K. Shea, as Referee to hear and report proposed findings of fact and conclusions of law. The hearing commenced on the morning of September 12, 2011, at which time Judge Holzman signed a written waiver of confidentiality.

Prior to September 12, 2011, Judge Holzman commenced a proceeding pursuant to Article 78 of the CPLR, seeking to stay the Commission proceedings against him. The matter was assigned to Acting Supreme Court Justice Barbara Jaffe in Manhtattan. Justice Jaffe sealed the record of the Article 78 proceeding, pending her decision. She rendered decision dated September 8, 2011, dismissing Judge Holzman's Article 78 petition.

Judge Holzman, by counsel, returned to Supreme Court on the morning of September 12, 2011, to renew his application to stay the Commission proceedings against him. Judge Jaffe issued a stay, pending decision. The Commission proceeding before Referee Felice Shea   was therefore halted. Judge Jaffe thereafter issued a decision, denying Judge Holzman's renewed application.

The hearing before Referee Felice Shea was scheduled to resume on October 11.

On October 5, 2011, Judge Holzman, by counsel, again sought a stay of the Commission proceedings, pending his appeal of the Supreme Court decision dismissing his Article 78 petition. Associate Justice Sheila Abdus-Salaam of the Appellate Division, First Department, granted an interim stay, pending determination by a full panel of the Court as to  Judge Holzman's request for a stay. Justice Abdus-Salaam set an expedited schedule for submission of briefs and consideration of the application by the court. Briefs were filed and the matter was fully submitted on October 12.

Accordingly, the hearing before Referee Felice Shea, scheduled to resume on October 11, was postponed, pending decision by the Appellate Division on Surrogate Holzman's application.

On December 6, 2011, the Appellate Division issued an Order, denying Judge Holzman's application for a stay of Commission proceedings, pending appeal. The disciplinary hearing against Judge Holzman therefore resumed. The Referee  presided on the following dates: December 14, 15, 16 and 19; January 3, 4, 5, 6, 9, 10, 11, 12, 13 and 17. The hearing, which was held at 111 Centre Street, Room 687, in Manhattan, concluded on January 17, 2012.

After the transcripts of the hearing were completed, the parties  submitted briefs to the Referee, who issued a written report to the Commission dated July 18, 2012, recommending findings of fact and conclusions of law.  The parties will now submit briefs and appear for oral argument at the Commission as to whether the Referee's report should be accepted and what, if any, sanction should be imposed.

On March 1, 2012, the Appellate Division affirmed Judge Jaffe's decision and denied Judge Holzman's petition for a stay of Commission proceedings.

The documents may be found at this link. (Mike Frisch)

July 24, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Knowledge

The Ohio Supreme Court has accepted a proposed consent decree in a matter brought by the State Bar Association against an entity called Immigration Associates, LLP.

The court ordered that the entity cease engaging in the unauthorized practice of law, cease marketing the business of preparing immigration forms, and prohibits the owners from "represent[ing] themselves or any current or future business owned by the individual owners as knowledgeable in immigration law or practice." (Mike Frisch)

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Vexatious Litigant

The Californis State Bar Court Review Department has recommended the disbarment of an attorney who was declared a vexatious litigant in claims brought against a former client:

In 2004, [his] former client won a fee arbitration award against him. [The attorney] then sued the client on a meritless claim that the client gave false testimony at the arbitration hearing. [He] delayed resolution of the case for more than four years by repeatedly filing frivolous pleadings, including 10 unsuccessful motions to disqualify judges assigned to his case. One superior court judge found that for four years [the attorney] did not file "any substantive opposition that addressed the merits of a pending matter," and ruled that he was a vexatious pro per litigant. Even after this ruling, [the attorney] twice disregarded an order requiring him to obtain pre-authorization from the court for future filings.

Thanks to Rick Underwood for carching my typo in this post. (Mike Frisch)

July 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege Claim Defeats Subpoena

The Connecticut Supreme Court has reversed an order compelling a law firm to comply with a subpoena.

The law firm represents a plaintiff suing former counsel for legal malpractice:

The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by [plaintiffs' counsel] Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages without resorting to privileged communications...We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege.

There is a dissent that would hold that the order compelling discovery is not appealable at this juncture. (Mike Frisch)

July 23, 2012 in Privilege | Permalink | Comments (0) | TrackBack (0)