Monday, December 31, 2012

Illinois Battle Over Breach of Fiduciary Duty Charges

In two reports and recommendations filed with the Illinois Supreme Court, the Review Board criticized the Administrator's use of the "breach of fiduciary duty" charge as a basis to allege an ethical violation.

in one case, the Review Board recommended dismissal of all charges against an attorney who, as executor and trustee of his father's estate, made unauthorized loans to himself. The Hearing Board had found that the conduct breached fiduciary duties and amounted to conversion.

The Review Board disagreed:

We hold that because there was no attorney-client relation alleged, the charges for "conversion" and "breach of fiduciary duty" were inappropriate in this case.

The phrase "breach of fiduciary duty" does not appear in the Rules of Professional Conduct -- and the charge is largely unknown in a disciplinary context outside of this state. Nonetheless, the Illinois Supreme Court has both expressly and implicitly approved of the use of such a charge in cases involving the attorney-client relation...The Administrator has taken that approval as license to charge "breach of fiduciary duty" with some frequency - including it in a substantial percentage of the disciplinary complaints filed each year.

"Breach of fiduciary duty" is an amorphous and generalized tort concept, potentially encompassing a wide variety of behavior...

A charge of "breach of fiduciary duty" rarely (if ever) stands alone. Typically, the charge is used in tandem with additional charges that do include at least lip service to various Rules of Professional Conduct. Where a charge of "breach of fiduciary duty" is included, as here, the proofs and analysis invariably veer towards that charge, instead of whatever the proper "companion" charge was (or may have been). This case provides a perfect illustration: the Administrator tried the case before the Hearing Board in a manner almost indistinguishable from what would be expected in a trial involving civil liability for the breach of a duty imposed by tort law - complete with expert testimony by a trusts and estates lawyer. The Hearing Board analyzed the case, as well, as if it were a trier of fact in a civil context, weighing whether the Respondent "breached" his duty.

In our view, as a matter of law, a necessary element of the charge of "breach of fiduciary duty" is the existence of an attorney-client relation. Because the Respondent's circumstances did not involve an attorney-client relation in the first instance, the "breach of fiduciary duty" charge, here, was without basis in law.

We would further strongly discourage the use of the charge of "breach of fiduciary duty" in circumstances where the underlying conduct can be otherwise charged under the Rules of Professional Conduct...

The second matter involved an attorney's serving as trustee of a charitable trust that he drafted for a client. The trust was intended to benefit a church and school. The attorney made a series of very bad investments with a person he thought was an attorney (because he used "J.D." ) but who was in fact suspended.

The Review Board rejected most of the Administrator's charges and recommended a 60-day suspension. As in the first case, the Review Board found that the absence of an attorney-client relationship was fatal to the Administrator's case.

Panel Member Anna Loftus concurred in part but dissented from the overturning of a dishonesty finding of the Hearing Board:

The majority bases its decision to overturn the Hearing Board's finding solely by accepting Respondent's statement that he did not intend to be dishonest to St. Mark's. However, the Hearing Board did not find Respondent's testimony to be credible. Simply because the Administrator did not offer any direct evidence, i.e., Respondent's admission that he intended to deceive St. Mark's, should not prevent the Hearing Board from concluding that Respondent's actions were purposefully de[ce]itful. The Hearing Board was in the best position to judge Respondent's credibility and this Board should not substitute its judgment for that of the Hearing Board.

The Supreme Court has repeatedly stated that motive and intent are rarely susceptible to direct proof and must generally be inferred from the attorney's conduct and the surrounding circumstances...Here, the Hearing Board carefully considered all of the evidence in reaching the conclusion that Respondent purposefully and deliberately hid the true source of the three payments from St. Mark's. Respondent conceded he did not simply forward Hannah's payments to Respondent to St. Mark's, although he certainly could have done so. Nor did he forward the funds he borrowed from Wells Fargo directly to St. Mark's. Instead, he took deliberate steps to deposit the funds into his client fund account, transfer the funds from there to the Sloan Trust account, and then pay the funds to St. Mark's from the Trust's account. He did not disclose the true source of the funds to St. Mark's. As found by the Hearing Board, there was no reason for Respondent to take the actions he did unless he was attempting to conceal from St. Mark's the true source of the funds.

During the time period Respondent was engaging in this conduct, St. Mark's was requesting information from Respondent regarding the health of the trust assets. Respondent knew, indeed he admitted, that the trust had insufficient liquid assets to make the expected monthly payments to St. Mark's. By making it appear to St. Mark's that the Sloan Trust account was the source of the funds, Respondent avoided serious inquiry by St. Mark's into the health of the Trust. As noted by the Hearing Board, the Court has held that omissions calculated to deceive and the "suppression of the truth and the suggestion of what is false" constitute conduct involving dishonesty, deceit, fraud or misrepresentation...

The Supreme Court's resolution of the issue of charging "breach of fiduciary duty" will have a significant impact on the disciplinary prosecutions of Illinois attorneys.   (Mike Frisch)

December 31, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Friday, December 28, 2012

An Inappropriate Colloquy Gets A Judge Admonished

A Buffalo City Court judge has been admonished by the New York Commission on Judicial Conduct.

The misconduct took place during a custodial arraignment of a 17 year old who was facing several charges.

At one point, the judge asked the defendant if he knew what "thuggery" meant and called him "Mr. Tough guy." The defendant responded with a series of truly ugly profanities and told the judge to "suck my dick."

The judge's response: "Why don't you pull it out for me" and then "[p]robably need a magnifying glass."

The governing principle as articulated by the commission: "Even in the face of provocative, disrespectful comments by a litigant, a judge is required to be an exemplar of decorum and dignity in the courtroom and not allow the proceedings to devolve into an undignified exchange of taunts, insults and obscenities." (Mike Frisch)

December 28, 2012 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Probation Revocation Ineffective Assistance Claim Remanded

The Kansas Supreme Court has held that a defendant in a probation revocation proceeding is entitled to the effective assistance of counsel.

The case involved allegations of a conflict in interest. The attorney who represented the defendant also served as the victim's guardian ad litem. He briefly noted the conflict in a proffer to the probation revocation court. No objections were lodged and the court did not conduct any inquiry.

The court here remanded for either a fresh revocation hearing with conflict-free counsel or a hearing into whether the conflict created an adverse effect on the representation. (MIke Frisch)

December 28, 2012 in Clients, Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, December 27, 2012

God's Will No Defense

The Wisconsin Supreme Court has issued a public reprimand of an attorney for false statements concerning a judge in connection with a guardianship proceeding, in which the attorney sought to keep the ward in a residential apartment owned by him and his wife.

The court rejected the attorney's defense:

Attorney Riordan's statements fall short of his ethical obligation to maintain the respect due to courts and judicial officers.  The record evidence supports the referee's conclusion that Attorney Riordan's comments concerning Judge Dwyer violated the Attorney's Oath...

Attorney Riordan asserts that his sincere religious conviction and belief that he is following God's will immunizes his conduct from prosecution for professional misconduct.  He believes that he and his wife "are experiencing an ongoing spiritual and religious prophetic experience" and that God "expects him to help those who can fall under guardianship."

The referee recognized, and we will not question, Attorney Riordan's sincere religious faith, but the First Amendment does not protect all statements made by attorneys.  Our task is to evaluate whether the statements upon which the charges are based were either false, or made in reckless disregard of the truth.

Here, the referee considered the record evidence and properly determined that Attorney Riordan's statements about Judge Dwyer are not constitutionally protected.  False statements made knowingly, or with reckless disregard for the truth, are not constitutionally protected.

The court had declined to name the attorney as guardian due to the financial conflict of interest presented by the living arrangement. (Mike Frisch)

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

Wednesday, December 26, 2012

Admission On Motion Denied

The Utah Supreme Court denied admission on motion to an Idaho attorney who did not meet the requirement of actively practicing law for three of the five preceding years.

The applicant was admitted to the Idaho Bar in 1983. He voluntarily ceased to practice in 1995 but resumed in 1997. He again stopped practicing in 2001 and moved to Utah.

The applicant had stopped the active practice of law due to depression and anxiety.

Here, the court held that the denial of admission on motion did not violate the Americans with Disabilities Act. Rather, the rule that requires active practice for three of the preceding five years is designed to assure the applicant's present competence to practice law. (Mike Frisch)

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

Monday, December 24, 2012

No Higher Power

The Louisiana Disciplinary Board has recommended a suspension of a year and a day of an attorney convicted on no contest and guilty pleas to two alcohol-related driving offenses.

The offenses took place while the attorney was involved in his own divorce and custody matter. He also was having difficulty with his law partners, who were cutting him out of the practice.

In such cases (and here), the attorney is often given the option of participation in the bar's lawyer assistance program. Here, the attorney was directed to get involved with Alcoholics Anonymous.

He went to AA as directed, although he did not think he had an alcohol problem. However, he dropped out because he is an atheist and does not believe in a "higher power."

The board indicated that a lesser sanction would have been proposed if the attorney had complied with treatment conditions. (Mike Frisch)

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

Worst To First

Readers of this blog may recall that I recently severely criticized a District of Columbia hearing committee for absolving four attorneys on charges of elder abuse by failing to deal with the evidence and attacking the complainant and Bar Counsel rather than resolving the case.

With typical understatement, I called the report the worst in D.C. bar history.

Bar Counsel has appealed the case to the Board on Professional Responsibility. Hopefully, justice will eventually prevail.

Well, I have just read another hearing committee report that is the exact opposite -- a thoroughly professional, 201 page analysis of the charges in two matters with a well-reasoned and appropriate recommendation of disbarment.

The main charges involve the attorney's representation of a plaintiff in a sex harassment case.

When the client became concerned about the attorney's behavior (in particular, his disrespect for a Superior Court judge), she discharged him.

He retaliated with a  campaign to destroy her with court process that must be read to be believed. He instituted frivolous litigation, breached confidentiality, made false statements and created false evidence. As the client testified, the attorney 's conduct turned her life upside down.

The hearing committee's report may be found at this link by inserting the attorney's name --Ellis S. Frison.

Comment from Stephen Williams:

The Court of Appeals is exclusively charged with regulating the practice of law in the District of Columbia. Short of Congress removing this authority from the Court, the Court is the only entity that is able to fix this problem. And yet, you repeatedly refuse to lay these shortcomings at the feet of the Court which is where it really belongs.

Stephen

UPDATE: I respectfully disagree with the above comment. My article No Stone Left Unturned is premised on the proposition that the D.C. Court of appeals made a fundamental error in creating and deferring to a board dominated by volunteer lawyers.

When the court issues an opinion that I disagree with, I say so --here's an example. (Mike Frisch)

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

Saturday, December 22, 2012

The Trouble With Tribble

The Vermont Supreme Court reversed the conviction of defendant Dennis Tribble, who had admittedly shot his neighbor to death.

The court concluded that the defendant's right to confrontation was violated by allowing a videotape of the testimony of a key prosecution witness to be played for the jury.  The witness was out of the country but willing to return. The error was not harmless.

Counsel did not object to the videotape, but the client did.

The court also addressed a disagreement between client and counsel over trial strategy and concluded that the client's wishes must prevail:

...we conclude that defendant here—having been found competent to assist in his own defense—retained final authority over the decision to present a diminished capacity case.  Plainly, as other courts have recognized, the fundamental right to maintain a plea of complete innocence would be impaired, if not eviscerated, if counsel were allowed, over defendant’s objection, to assert a defense seeking a less serious conviction.  Indeed, as the parties here clearly understood, evidence of defendant’s delusional disorder directly undermined the self-defense theory that defendant preferred by discrediting the claim that his perception of the threat was a reasonable one.  The basic right to contend for outright acquittal that bars defense counsel from overriding a defendant’s objection to instructing the jury as to lesser-included offenses applies with equal force to preclude the assertion of a theory, such as diminished capacity, that supports conviction on a lesser-included charge contrary to a defendant’s express wishes.  Moreover, like insanity, a defense of diminished capacity based on mental impairment is a highly personal and potentially stigmatizing one, and should remain the prerogative of an otherwise competent defendant in the final analysis.  Accordingly, we conclude that the trial court here erred in authorizing defense counsel to assert the defense contrary to defendant’s wishes.    

(Mike Frisch)  

December 22, 2012 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2012

Jealousy Not Sex Discrimination

The question of the day comes from the Iowa Supreme Court:

Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?

The answer:

...we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.

The employee was hired in 1999 as a dental assistent in the employer's dental office. She worked there capably for over 10 1/2 years. However, the employer had complained that she dressed in a "too tight" and revealing manner.

During the last six months of her tenure, they "started texting each other on both work and personal matters outside the workplace." The employee denied that she flirted with the employer although there was some sexual banter between them.

When the employer was with his children for a Colorado Christmas, Mrs. Employer found the text messages.

There ensued a confrontation between them and pastoral counseling. As a result of the perceived ongoing threat to the marriage, the employee was terminated.

The court concluded:

...the issue is not whether [employer] treated [employee] badly. We are asked to decide only if a genuine fact issue exists as to whether [employer] engaged in unlawful gender discrimination when he fired [employee] at the request of his wife....we believe that this conduct did not amount to unlawful discrimination...

(Mike Frisch)

December 21, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

What We DON'T Have Here Is A Failure To Communicate (Over A Dissent)

The Maryland Court of Appeals has found no misconduct and dismissed a case involving allegations of misconduct against an attorney who had represented several correctional officers in a pay dispute.

The hearing judge (whose findings are recited in full and great detail) had rejected all charges except for a failure to communicate with one officer. The court majority found no violation:

[The attorney's] exception implicates the application of Rule 1.4 to the process of counseling a client.

To out knowledge, this is our first foray into the role of lawyer as counselor...the hearing judge erred in not viewing counseling [the client] as a process, which occured over a period of time...our analysis must take into account the entire interaction between [the attorney] and [the client] and the information that was communicated durationally.

Under the circumstasnces, the court concluded that the attorney was not obligated to reiterate information that had previously been provided to the client.

The court rejected a number of contentions raised on appeal by Bar Counsel. In particular, the court rejected allegations of excessive fees.

Bar Counsel contented that the attorney engaged in misconduct by collecting legal fees while his professional corporation was in default of licensing obligations. The court found that the fee collections were "inextricably linked" to winding up the corporation.

A dissent would find the failure to communicate and impose a 30 day suspension.

The hearing judge's view of one expert witness on the reasonableness of fees is a primer on how not to persuade:

In addition to [the expert's]... lack of experience in the county employment area, his persuasiveness and credibility was undermined (if not obliterated) by his demeanor on the witness stand. The vigor and even anger with which [he] testified was stunning. He came across to the court as an advocate rather than an objective expert rationally analyzing the facts. Under fair and reasonable cross examination, [he] became angry, accused Respondent of fraud and opinied unreasonably that the outcome of [the client's] case was "disastrous."

(Mike Frisch)

December 21, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sanctions For Practice Restriction Agreement

The New Jersey Supreme Court has reprimanded two attorneys and admonished a third for violations of New Jersey Rule 5.6 (agreement restricting right to practice).

Two of the attorneys (a senior and junior) had moved to disqualify the third attorney in litigation. An agreement that violated Rule 5.6 was reached and the motion to disqualify was withdrawn. The attorney who agreed to the restraint on her practice did so because she was unaware of the rule and planned to move to Portugal anyhow. However, the Portugal move fell through.

The junior lawyer got the admonition; the senior attorney that proposed the agreement and the attorney who agreed to it were reprimanded. (Mike Frisch)

December 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Smokeable Pocketknife

The Illinois Administrator has recently filed a complaint alleging a number of ethics violations including misleading advertising and office signs and violation of a civil protection order

He is also charged with this:

On February 7, 2011, Respondent entered a federal building at 101 W. Congress in Chicago to handle an immigration matter. At that time, he submitted to a routine security search to enter the facility and had in his possession two grams of marijuana. Federal Protective Service officers discovered that Respondent had the marijuana and detained him. The officers then cited Respondent with violation of 41 CFR 102-74.400 and released him. The matter of Respondent's violation of 41 CFR 102-74.400 was docketed by the Clerk of Court for the U.S. District Court for the Northern District of Illinois as case number H5036487.

On May 9, 2011, Respondent pled guilty to violation of 41 CFR 102-74.400 in case number H5036487, and Magistrate Sidney Schenkier sentenced him to a fine of $175, plus payment of $25 in court costs.

Finally, he is charged with falsely claiming to disciplinary authorities that the above incident involved a pocketknife rather than marijuana. (Mike Frisch)

December 20, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Boating Recusal Issue Explored

Also from the Florida Judicial Ethics Advisory Committee:

ISSUES

1. Must a judge recuse from all cases involving a  bank whose loan collection official is the judge’s close personal friend,  whether or not the bank official appears in the case as a witness or bank  representative, where the official is a member of a local social club to which  the judge belonged until three years ago and the official frequently socializes  with the judge and the judge’s spouse in each other’s homes, around town and  while boating?

ANSWER: No,  but the judge must recuse from any cases in which the judge’s friend appears as  a party, witness or representative of the bank, or any case in which the judge’s  impartiality might reasonably be questioned.

2. If the judge is  not required to recuse from the bank’s cases, must the judge disclose the  relationship to the parties in cases involving the bank?

ANSWER: Yes.

3. Must a judge  recuse from cases involving the attorney and law firm which represented the  judge, the judge’s mother, and the judge’s brother in a personal injury case which  settled without going to trial?

ANSWER: Yes,  for a reasonable period of time.

4. Must the judge,  upon no longer being required to recuse from cases involving the attorney and law  firm, disclose that relationship to the parties in a case in which that attorney  or law firm appears?

ANSWER: Yes,  for a reasonable period of time.

FACTS

The  inquiring trial judge is a friend of the sole or primary loan collection  officer at a local bank.  The judge and  the friend were both members of a local social group until the judge resigned from  the group approximately three years ago.   The judge and the friend frequently socialize in each other’s homes with  their spouses and around town and while boating in excess of a dozen times each  year.  The bank appears in court on a  variety of matters, including collections, foreclosures, and repossessions.  The judge’s friend has never appeared before  the judge as a witness or bank representative.   

Historically,  the judge has been recusing from the bank’s cases without requiring a hearing.1  Recently, the judge granted a motion to  disqualify from a case in which the bank was a party, wherein the motion  asserted essentially that the judge “had a past and ongoing social relationship”  with the bank’s primary or sole collection officer.  The judge asks if recusal is required or  whether the judge may simply disclose the relationship in all future cases in  which the Bank is a party and then rule on any motions to disqualify which may  be filed.

In  an unrelated inquiry, the judge states that, until recently, a local insurance  defense attorney and the attorney’s law firm represented the inquiring judge,  the judge’s mother, and the judge’s brother in a personal injury case against  them.  The case settled without going to  trial.  The judge has been recusing from  all cases involving that firm without a hearing and plans to do so for two  years after the firm concluded its representation of the judge and the judge’s  family members.  The judge asks whether  recusal is required in such circumstances without a motion to disqualify or  hearing.  The judge further asks how long  it is necessary to disclose the representation by the attorney and the firm in  cases where the attorney or the firm appears.

The opinion is linked here. (Mike Frisch)

December 20, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Host, No Show

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUE

Whether the  inquiring judge may attend a religious organization’s fundraising dinner, after  the organization mailed invitations listing the inquiring judge as one of  several “hosts” without notifying the judge before the mailing?

ANSWER: No.

FACTS

The inquiring  judge and the judge’s spouse have attended a religious organization’s gala  dinner over the years.  The gala dinner  serves a fundraising purpose for restoring, preserving and supporting the religious  organization’s continued success.  The  inquiring judge’s spouse purchased an eight-person table for a considerable  amount of money before the invitations went out.  The invitations which were mailed by the gala  planning committee, of which the inquiring judge is not a member, clearly were  soliciting funds.  Included with the  invitation was a list of ten donors labeled as “hosts.”  The inquiring judge was listed as one of the  “hosts” with an abbreviated designation of title for Honorable (“Hon.”), along  with the inquiring judge’s spouse’s name.   Neither the inquiring judge nor the judge’s spouse authorized the committee  to send the invitations including the inquiring judge’s name.

The inquiring  judge quickly notified the committee of the mistake.  The inquiring judge directed the committee to  discontinue using the judge’s name in any further mailings for solicitation of  funds.

The inquiring  judge asks if the Code of Judicial Conduct would prohibit the judge’s attendance  at the gala dinner given the invitation’s listing of the judge as one of the  “hosts.

(Mike Frisch)

December 20, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Opinion Letter

The New York Appellate Division for the Second Judicial Department accepted the resignation and struck from its rolls an attorney convicted of securities fraud:

The factual basis for Mr. Krome's plea was his knowing and willful participation in the creation of materially false and misleading documents, including an opinion letter, in order to facilitate the issuance of, and remove trading restrictions on, shares of stock in a corporation named CO2 Tech, Ltd., and have "free trading" shares of CO2 Tech, Ltd., stock issued for sale to the public.

The attorney admitted that he could not defend against the resulting disciplinary charges. (Mike Frisch)

December 20, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2012

Buying Into License Revocation

In a case involving misconduct of "epic proportions," a unanimous Wisconsin Supreme Court imposed the sanction of license revocation.

The case involved an attorney who purchased a law practice in 1999. He had previously been a shareholder in the practice and was aware that the seller attorney had a (to put it charitably) non-compliant trust situation:

Attorney Weigel stated that before he bought out Alvin Eisenberg, he understood the trust account was running a deficit but he claimed he did not know the full extent of the deficit.  In his testimony at the hearing, Attorney Weigel said that when he and his partners bought Alvin Eisenberg out, "I would have believed the problem to be closer in the $200,000, $250,000 range.  After we bought him out and some other things started to come to light, it was obvious that we were closer to the million dollar range than the $250,000 range."  When asked how long after the March 1999 buyout Attorney Weigel came to the conclusion that the trust account was running closer to a million dollar deficit, he estimated "somewhere over the course of six months or so," which would have meant late 1999 or early 2000.  When asked whether he gave any thought to reporting Alvin Eisenberg to the relevant authorities and walking away, Attorney Weigel responded, "I thought of it but just made a moral decision not to do that."

Rather than bring the practice into compliance, the attorney engaged in a thirteen year practice of "robbing Peter to pay Paul" by paying trust funds owed to clients and providers on a "squeakiest wheel" basis.

As to sanction:

A six- or seven-figure deficit in an account that holds client funds is an ethical failure of epic proportions.  We agree with the OLR that it would be difficult to imagine a more aggravated pattern of misconduct than the one presented here.  We agree with the OLR that any sanction less than revocation would undermine the public's confidence in the honesty and integrity of the bar.

(Mike Frisch)

December 19, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

9,450 Clients To Notify

The North Dakota Supreme Court imposed the stipulated discipline of a six-month suspension for an attorney's conduct in failing to comply with the notification obligations of an earlier suspension:

After his October 1, 2008, suspension, he filed an affidavit with this Court attesting that he had served 106 notices to clients, as required by N.D.R. Lawyer Discipl. 6.3. However, he testified at the hearing resulting in the 2008 suspension, that as of the day before the hearing, his law firm "had like 9,450 [clients] or something along those lines." By letter dated April 30, 2009, Disciplinary Counsel asked [him] to explain the apparent discrepancy in the number of clients. In a response dated May 20, 2009, [he] revealed that on May 15, 2008, he "sold Bradley Ross Law and its clients to Facemyer and Associates in Utah." He also revealed that "on or before September 17, 2008, all remaining Bradley Ross Law clients and there [sic] files had been transferred to Facemyer and Associates."

This information led to a request for information demonstrating compliance with the suspension order, and

[The attorney]admitted that his failure to provide the requested information until September 10, 2012, violated N.D.R. Prof. Conduct 8.1(b), which provides that a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority. He also admitted that his failure to provide clients with notice, by certified mail, of the sale of his law firm violated the notice provisions of N.D.R. Prof. Conduct 1.17(c), but that the actual or potential injury resulting from the violation was substantially alleviated by [his]efforts to provide notice by other means.

To attorneys that prosecute and defend bar discipline cases, this opinion deals with a recurring issue. Often, a suspended attporney's failure to substantially comply with notice obligations turn a short suspension into a lengthy one.

In D.C., many suspensions/disbarment never start to run for reinstatement purposes because of the attorney's failure to certify compliance with such onligations. (Mike Frisch)

December 19, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Over Dissents, Judge Gets Off With Censure

Over a series of vigorous dissents as to the adequacy of sanction, the New York Commission on Judicial Conduct has censured Bronx County Surrogate Court Judge Lee Holtzman.

This press release summarizes the case, which involved his failure to act when learning that one of his appointees had "improperly taken excessive fees, and fees in advance of doing work on...estates, resulting in negative balances of $300,000 to $400,000."  

By allowing his appointee to stay in the position of trust, the judge abdicated his ethical responsibilities.

The money came from the estates of persons who died without a will.

Dissents call for the judge's removal from office.

From member Richard Emery:

What I do know is that this is one of the most egregious cases that has ever been litigated before this Commission during the nine years I have served. To allow respondent to escape removal on these undisputed facts out of deference or undue leniency towars a retiring judge degrades our function to a degree that I have not yet witnessed. Respondent's favoritism towards Lippman [the appontied attorney] should not be compounded by our favoritism towards him.

The censure will allow the judge to retire. (Mike Frisch)

December 18, 2012 | Permalink | Comments (0) | TrackBack (0)

To Live And Work In D.C.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.

The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.

She then sued AO, arguing that the geographic limitation was unconstitutional.

The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.

The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)

December 18, 2012 in Current Affairs, Hiring, Interviewing, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

With God As My Witness

The New Jersey Supreme Court has imposed a public reprimand of an attorney who threatened to institute a civil RICO action and criminal charges against his wife and her counsel in an emotionally-charged divorce matter.

The attorney sent an e-mail that ended:

...this fight will happen on my schedule. If the complaint isn't filed today or tomorrow, don't think its going away. With God as my witness, I swear that this will not end until you are in jail for perjury and Jennifer and Sal are disbarred for suborning it.

The attorney also violated Rule 4.2 by sending a copy of the e-mail to his wife, a represented party. (Mike Frisch)

December 18, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)