Sunday, September 30, 2012
In a case that likely will trigger waves of fear throughout the public sector, an attorney was recently publicly reprimanded by the Kentucky Supreme Court.
The attorney was a state government employee. He used his personal laptop computer at work to post answers on JustAnswer.com. He posted the answers for a profit.
To make matters worse, the attorney also used his office Westlaw account on 36 occasions to search for the information that he posted. The attorney disputed the number of searches but conceded that he had violated Rule 8.4(c) by his conduct.
The court noted that the conduct did not interfere with the attorney's discharge of his public duties.
The attorney and the Executive Branch Ethics Commission entered into a settlement agreement that fined him $2,000. (Mike Frisch)
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
The Illinois Administrator has filed a third amended complaint alleging that an attorney engaged in misconduct in several matters.
Among the allegations are charges involving mistreatment of opposing counsel in litigation. From the complaint:
...beginning in 2008, Respondent called [opposing counsel] Steven’s vulgar names. As a consequence of Respondent’s conduct, after February 2008, Stevens refused to speak with Respondent and communicated with him only by letter or in open court.
On approximately 10 occasions, in 2008 and 2009, Respondent called Stevens a "bitch" or "fucking bitch", and called her "cunt" on at approximately five occasions, "slut" or "whore" on two or three occasions, "asshole" on at approximately 10 occasions, and "pervert" on approximately five occasions.
Specifically, on September 3, 2009, Respondent, Stevens, and other counsel appeared in case number 07 L 3391. While on the record, Respondent stated on the record in case number 07 L 3391 to Stevens "[S]till hanging around the bars and picking up the DePaul students?" In addition to his statement on the record, on two other occasions, Respondent stated to other counsel in Steven’s presence, in a voice that Stevens could hear: "She [Stevens] has been seen picking up boys at DePaul bars and taking them home with her."
Respondent’s referred to Stevens as a "bitch", "fucking bitch", "cunt", "slut" and "whore", and stated that Stevens had been seen picking up boys at DePaul bars for no other purpose than to harass or embarrass Stevens.
On September 11, 2009, Respondent, Stevens and others were appearing in case number 07 L 3391. Prior to the court hearing, Respondent approached Stevens and said to her "Nice dress, slut."
Prior to the hearing on September 11, 2009, Stevens handed a motion to Respondent without speaking, and Respondent stated to her "Go fuck yourself." Respondent then added "you asshole."
When the judge returned to the courtroom, Stevens made a statement on the record regarding the words Respondent had used to her before the hearing.
Respondent responded that Steven also swears, and then referred to her, twice, as a "liar."
On September 17, 2009, Respondent, Stevens and others appeared before the court in case number 07 L 3391. During the hearing, Respondent called Stevens a "liar" and referred to Stevens as "Miss Stevens who molested this child."
On September 24, 2009, Respondent, Stevens and others appeared for a hearing in case number 07 L 3391. The judge stepped out of the courtroom, and Respondent approached Stevens. Stevens, who continued to refuse to talk to Respondent, and started walking away and stood next to the judge’s chambers. Respondent followed Stevens. Stevens again walked away from Respondent, and Respondent stated to her "Bye, bitch."
At the conclusion of the hearing on September 24, 2009, Stevens stated that she wanted to put the Respondent’s comment of "Bye, bitch" on the record. During the discussion on the record that followed, Respondent stated that Stevens "was the same woman who physically and sexually abused [Cristina]."
As the September 24, 2009 hearing was concluding, Respondent turned to Stevens and called her a "pervert."
Respondent called Stevens obscene names, used obscene language, and, while on the record, made the statements that Stevens had physically and sexually abused Cristina, and that Stevens was a "pervert" and "liar" for no other reason than to harass or embarrass Stevens.
Many of Respondent’s statements to Stevens described above were made at a time when Stevens and Respondent were not engaged in an argument or conversation.
In the same matter, the complaint alleges that the attorney called the attorney who replaced him an "coke head" and falsely claimed that counsel snorted cocaine in the courthouse rest room. (Mike Frisch)
Friday, September 28, 2012
The Louisiana Supreme Court has held that an applicant for admission will never be admitted as a result of charges of Internet solicitation of a minor.
The applicant graduated from law school in 2007. He was arrested prior to the July 2007 bar exam for soliciting Internet sex with a person he believed was a 15 year old, but who was actually a police officer. He disclosed the arrest to the bar admission authorities and did not sit for the exam at that time.
He completed pretrial diversion and the criminal charges were not pursued.
The applicant was permitted to sit for the February 2010 exam. He passed.
Here, the court concluded that the misconduct would result in permanent disbarment if committed by a member of the bar. Thus, admission is forever precluded. The court declined to consider his changed circumstances and treatment since the incident.
This is a harsh result that might well have a different outcome in another jurisdiction.
Note that the prior disiplinary case relied upon by the court involved an attorney convicted of a felony. The applicant was not convicted of anything. (Mike Frisch)
The web page of the Tennessee courts has this report:
The Tennessee Supreme Court has upheld the 45-day suspension of a Chattanooga attorney’s law license. In a unanimous opinion, the Court affirmed the decision of a hearing panel of the Board of Professional Responsibility that Fred T. Hanzelik violated ethics rules governing the collection of fees, communication with clients, expediting litigation, and cooperating with ethics investigations.
Mr. Hanzelik was disciplined for attempting to bill a client twice for the same legal services. Shortly before his death, the client paid Mr. Hanzelik for his services in a property dispute. Mr. Hanzelik’s office then filed a claim against the client’s estate requesting payment for the same services. Mr. Hanzelik did not withdraw this claim until the estate confronted him with evidence that he had already been paid in full.
Another claim involved a physician who had hired Mr. Hanzelik to represent him in a Georgia divorce and to file suit against his former employers for wrongful termination. The physician was eventually held in contempt of court because Mr. Hanzelik failed to inform him of mandatory court appearances. Mr. Hanzelik also failed, for over a year, to tell the physician that he did not intend to file the wrongful termination suit the physician had requested him to file. Mr. Hanzelik also failed to provide the physician with a written fee agreement which resulted in a misunderstanding between Mr. Hanzelik and the doctor about the purpose of $8,500 in retainer fees.
Finally, Mr. Hanzelik was disciplined for failing to cooperate with the disciplinary counsel during its lengthy investigation into complaints filed by his clients.
The court's opinion is linked here. (Mike Frisch)
The New Hampshire Supreme Court has reversed and remanded a decision to rescind a law firm's professional liability insurance for an allegedly false statement on the policy application.
The matter involved the misappropriation of estate funds by a law firm partner.The other partner was not aware of the thefts, although his conduct facilitated the theiving partner's access to the entrusted funds. The two lawyers had been partners for over 45 years.
The court held that the knowledge of the bad partner could not be imputed to the innocent one under its interpretation of the "innocent insured" provision of the policy.
Our earlier coverage of a suit by the disbarred attorney's spouse against a Nixon Peabody attorney is linked here. (Mike Frisch)
The Iowa Supreme Court has reprimanded an attorney for misconduct in an immigration matter.
The attorney made a misrepresentation in an appeal. Further, the attorney failed to explain to the client that his own ineffective assistance of counsel was an issue that could be raised for the client's benefit. (Mike Frisch)
Thursday, September 27, 2012
An attorney with an "otherwise distinguished career and laudable community service" has been censured by the New York Appellate Division for the Third Judicial Department.
In a criminal case, the attorney "viewed, handled and photographed a document that was on the prosecutor's table" during a recess when the prosecutor was out of the courtroom. He did not have permission to do so.
The court here found the conduct undignified and discourteous, noting that the attorney had three prior letters of caution. (Mike Frisch)
A decision from the Ohio Supreme Court:
The Supreme Court of Ohio today issued an injunction ordering Michael D. Davie of Shaker Heights and his company, Alpha Legal Services (ALS), to cease from engaging in the unauthorized practice of law, and assessed a $30,000 civil penalty against Davie and ALS.
The penalty was based on two instances in which Davie prepared pleadings and other legal documents for ALS “clients” and later obtained court judgments against them for failing to make full payment for his “legal services,” and a third incident in which Davie prepared a legal document and appeared on behalf of another person at an Ohio Parole Board hearing after identifying himself in a memorandum in a manner that deceived the parole board into believing he was a licensed attorney.
In a 6-1 per curiam opinion, the court adopted a finding by the Board on the Unauthorized Practice of Law that in the first two cases Davie, a paralegal who is not licensed to practice law in Ohio, falsely claimed to have been working under the supervision of a Cleveland attorney, Sebraien M. Haygood, who died between the time of his violations and the beginning of board’s investigation. In support of that finding, the court noted that neither ALS’ contracts with the clients in those cases nor any of the legal documents prepared by Davie for those clients was signed by Haywood or included any indication that Davie was working under Haywood’s supervision, and that Davie had failed to produce any other credible evidence that Haywood had overseen his actions.
In the third case, the court overruled the board’s conclusion that Davie’s appearance before the state parole board did not constitute unauthorized law practice. After reviewing the evidence and objections to the board's finding raised by the Cleveland Metropolitan Bar Association, the court found that the memorandum prepared by Davie cited statutory provisions and case precedents, and advanced legal arguments on behalf of his client, thus constituting the practice of law. The court also found that Davie had intentionally portrayed himself to the parole board as an attorney by using the same signature block and format used by law firms, using the words “Legal Services” in his company name, and identifying himself by a “bar number” that resembled a Supreme Court attorney registration number, without indicating that it was actually a paralegal membership number assigned to him by the Ohio State Bar Association.
In imposing the maximum civil penalty of $10,000 for each of Davie’s unauthorized practice violations, the court wrote: “The panel and board found that on numerous occasions, respondents failed or refused to cooperate in relator’s investigation and the litigation of this case. Davie denied that he received proper service of process in this case, failed to appear for his scheduled deposition twice, and refused to cooperate in the discovery phase of relator’s investigation. Davie also filed an unfounded and frivolous action in the United States District Court for the Northern District of Ohio, seeking a declaratory judgment and injunctive relief to prevent this UPL action from proceeding ... Davie has never admitted that the services he provided in the Brown, Singleton, or Jones matters constituted the unauthorized practice of law, and at the time of the hearing, he continued to challenge the court’s authority to regulate his conduct. Respondents have not agreed to be enjoined from the unauthorized practice of law, and Davie refused to discuss any agreed resolution or stipulations.”
“In light of the significant aggravating factors present in this case, including respondents’ blatant disregard for our prohibitions against the unauthorized practice of law and their efforts to conceal the wrongful nature of their conduct by impugning the character of a deceased attorney who has not been shown to have any involvement in these matters and who cannot defend his good name, we now adopt the board’s recommendation and impose civil penalties of $10,000 in accordance with the board’s recommendation, but impose them for each of the three violations we have found herein.”
The court also ordered Davie to release the judgments that he obtained against the individuals who retained him to perform legal services in the first two cases addressed in today’s decision.
The court’s judgment was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown.
Justice Judith Ann Lanzinger entered a separate opinion in which she concurred with the majority’s findings of unauthorized practice violations in the first two cases, but said she would affirm the board’s conclusion that Davie’s conduct in the parole board case did not constitute unauthorized law practice. With regard to the appropriate sanction, Justice Lanzinger wrote that she would impose civil penalties of $5,000 each for the first two counts, yielding a total civil penalty of $10,000.
The opinion is linked here. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has disbarred an attorney who helped himself to an immigration client's bond money:
The respondent shows no remorse and remains defiant in his claim that he is "entitled" to deduct his fees from the bond money. The evidence shows that the respondent took advantage of a fellow Polish immigrant. His offer to return the balance of the bail money, but only to Sirju, who is no longer in the country, underscores the bold nature of his theft. His testimony was riddled with inconsistencies and contradictions. Not only did the respondent wrongfully deduct his fees from the bail money, but he padded his bill with improper charges, a bill which was fabricated to justify his conduct. Of note, the respondent was previously admonished in 2005 for similar conduct.
A justice of the Massachusetts Supreme Judicial Court ordered a suspension of two months for an attorney's ethical violations in his own post-divorce actions.
The attorney disobeyed court orders of child custody (he wanted the children) and falsely accused his ex-wife and the guardian ad litem of being mentally ill.
The justice found the facts were unusual and that there were mitigating considerations.
While there have been prior matters involving post-divorce misconduct, the sanctioned attorneys in prior cases sought financial gain. Here, the motivation was to have his children. Further, the false allegations of mental illness were based on his honestly held (but not clinically corroborated) views. (Mike Frisch)
Wednesday, September 26, 2012
The Massachusetts Board of Bar Overseers reports that an attorney who stole business signs was suspended for 30 days. The attorney was charged with vandalism and larceny.
The Salem News reported that the "well-known Salem criminal defense attorney" took five signs that advertised for a Rita's Italian Ice store in a local mall. The signs were later found in trash bins.
As to the why of the story, further from the Salem News:
Buso told a judge during his plea hearing in October that a series of encounters between the owner of the business and others, including his son and a competing downtown business owner, and an incident in which he hurt his hand when he accidentally struck one of the signs while walking, triggered the three thefts.
The criminal charges were continued without a finding. One condition is that the attorney stay away from Rita's premises and owner. (Mike Frisch)
The Minnesota Supreme Court has admitted without examination an applicant for bar admission who did not meet the educational requirements for admission on motion.
The court majority found that the applicant had exceeded the high standards set for waiver of the educational requirements for admission to practice on motion. The issue was her foreign undergraduate and legal education. Minnesota requires applicants to have a degree from an ABA accredited law swchool.
The applicant had graduated first in her class at the University College Cork in Ireland with a BA in civil law and fourth in her Masters of Law class at Cambridge. She took and passed the New York Bar examination and practiced at Paul Weiss, the public defender section of the Legal Aid Society, O'Melvany & Myers and in her own private practice.
She relocated to Minnesota when her spouse took a position at the University of Minnesota. She was appointed as a practitioner in residence at the University of Minnesota Law School.
A concurring/dissenting opinion agreed that the applicant did not meet the educational requirements for admission but would deny admission on motion because she had only demonstrated that requiring her to pass the Minnesota bar exam would present an inconvenience, but not a hardship that would justify admission without examination. (Mike Frisch)
The Ohio Supreme Court has imposed a stayed one-year suspension of an attorney for misconduct as a magistrate hearing post-decree domestic relations matters.
The magistrate had engaged in "impatient, undignified and discourteous" treatment of litigants over several hearing days in a matter. Among other things, he did not permit the parties to fully present their cases, "acted on his own whims" rather than in the best interests of the child, and did not resolve the contested issues in a timely manner.
The misconduct was linked to the magistrate's post-traumatic stress from a life threatening health condition and other personal problems.
The court imposed conditions to the stayed suspension in order to require him to participate in continuing treatment that is recommended by the bar's program for lawyer assistance. (Mike Frisch)
A recent judicial ethics opinion from Massachusetts holds that a judge is not obligated to report a "robosigner" to bar authorities:
It is also noted that at this time, unlike at least one other
jurisdiction, Massachusetts has not made robo-signing itself improper.
Cf. Administrative Order, Chief Administrative Judge of the Courts of
New York, AO/431/11, available at https://www.nycourts.gov/attorneys/pdfs/AdminOrder_2010_10_20.pdf
(in residential foreclosure actions, requiring lawyers to submit an
affidavit that the lawyer "has communicated with the following
representative or representatives of the Plaintiff, who informed me that
he/she/they (a) personally reviewed plaintiff's documents and records
relating to this case for factual accuracy; and (b) confirmed the
factual accuracy of the allegations set forth in the Complaint and any
supporting affidavits or affirmations filed with the court, as well as
the accuracy of the notarizations contained in the supporting documents
In this case, mere knowledge that a lawyer is on a list of robo-signers alone is not sufficient to know that the lawyer has submitted false documents. Under these facts there is no mandatory duty to report under 3D(2).
Tuesday, September 25, 2012
The Tennessee Court of Appeals affirmed a trial court award of quantum meruit fees to a law firm discharged after being retained to pursue a damage claim against the Tennessee Valley Authority arising from a coal ash spill.
The clients followed a firm lawyer who left and set up her own practice. The underlying case was resolved and the attorney was paid her fee.
The clients then sued the law firm, seeking a judgment holding that they owed no fee to their former firm. The firm counterclaimed and contended that they were entitled to the full contingent fee.
The court found that the law firm was only entitled to payment for the work performed prior to the departure of the attorney and clients. (Mike Frisch)
From the D.C. Bar web page:
The D.C. Bar Continuing Legal Education Program will teach daily practice and risk–prevention techniques with the course “Avoiding Malpractice and Bar Complaints” on October 24.
This class will provide experienced attorneys with practical new ideas to implement and, for newer attorneys, the skills they can use throughout their legal careers.
From choosing clients and cases to avoiding conflicts, communicating effectively, and handling client funds properly, faculty members will provide examples and practical advice to help attorneys focus on problem areas that so often lead to complaints. The major differences in relevant ethics rules in the District of Columbia, Maryland, and Virginia also will be discussed.
Julia L. Porter, senior assistant Bar Counsel, and Dennis J. Quinn, a member of Carr Maloney PC, will serve as faculty for the course, which takes place from 6 to 9:15 p.m. and is cosponsored by all D.C. Bar sections. It will be held at the D.C. Bar Conference Center, 1101 K Street NW, first floor.
For more information, contact the CLE Office at 202-626-3488 or visit www.dcbar.org/cle.
Sounds like a worthwhile course. (Mike Frisch)
In a matter involving a law firm's efforts as a third party to secure payment of fees, the New York Appellate Division for the First Judicial Department held that the firm had not established a basis to award a money judgment:
The law firm was not entitled to entry of a money judgment. Although the amount of a charging lien may be determined and fixed before the outcome of the case, the charging lien does not provide for an immediately enforceable judgment against all assets of the former clients. Rather, the lien is security against a single asset of the client - a judgment or settlement reached in favor of the former client in the underlying matter. Since the record here does not show that there has been a final judgment in this action, the law firm's request for a money judgment was properly denied. Should the law firm wish to obtain a judgment enforceable against plaintiff's other assets, it can bring a separate plenary action. (citations omitted)
The web page of the Illinois State Bar Association has summaries of recent disciplinary decisions from the Illinois Supreme Court.
Among the more interesting cases:
Mr. [Glen] Weber, who was licensed in Illinois in 1987, was censured. While serving as an Assistant State’s Attorney in Winnebago County, and again as the State’s Attorney of Jo Daviess County, he made improper statements to juries in five criminal cases by alluding to matters he did not reasonably believe to be true and by making prejudicial statements about defendants. Of the five cases in question, one was reversed on appeal, with the appellate court finding that the improper statements deprived the defendant of a fair trial.
The court also censured an attorney involved in improper ex parte contacts in a workers' compensation matter:
Ms. [Elizabeth] Barringer, who was licensed to practice in 2007, was censured and ordered to successfully complete the ARDC Professionalism Seminar. She communicated on an ex parte basis with an arbitrator assigned to hear her client’s workers’ compensation case
The arbitrator contacts involves a situation that has received significant press coverage. The Madison St. Clair Record has a story here. The arbitrator's defense to ethics charges brought by the ARDC is described here. (Mike Frisch)
The Wisconsin Supreme Court has ordered a public reprimand in a complaint brought against an attorney by his former firm alleging failure to protect the firm's interest in fees generated in cases that the attorney took with him.
The court agreed that the case was, in the main, a business fight between lawyers:
...we adopt the referee's findings of fact. We also agree with the referee's conclusions of law and his recommendation regarding the appropriate level of discipline. We conclude that a public reprimand is sufficient to achieve the objectives of attorney discipline. As the referee noted in his prefatory remarks to his lengthy report and recommendation, this is an unusual disciplinary case which is, for the most part, a business dispute between Attorney Gende and his former employer. No client reported being dissatisfied with Attorney Gende's representation, and no clients were deprived of funds to which they were entitled. The referee commented, "On one level, what followed was nothing more than a dispute between Attorney Gende and [Cannon & Dunphy] as to . . . fees. Mr.Gende and [Cannon & Dunphy] litigated the latter's entitlement to fees in a number of fora." The referee referred to the lengthy dispute between Attorney Gende and Cannon & Dunphy as a "war." Although Attorney Gende was unable to persuade any court that Cannon & Dunphy was not entitled to the fees it claimed, the referee found it significant that no court found Attorney Gende's arguments to be frivolous. While we agree with the referee that Attorney Gende's conduct and his repeated stalling tactics in an effort to avoid paying fees owed to Cannon & Dunphy were inappropriate, and that his conduct was contrary to Wisconsin's Rules of Professional Conduct for Attorneys, we agree with the referee that under the unique facts of this case a public reprimand is sufficient to impress upon Attorney Gende the seriousness of his actions and to deter other attorneys from engaging in similar conduct.