Friday, December 21, 2012

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)

http://lawprofessors.typepad.com/legal_profession/2012/12/the-maryland-court-of-appeals-has-found-no-misconduct-and-dismissed-a-case-involving-allegations-of-misconduct-against-an-att.html

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