Friday, March 9, 2012

Judge May Ethically Blog Subject To Constant Public Scrutiny

A recent opinion from the Florida Judicial Ethics Advisory Committee:


May a judge publish a blog that reports on Florida Supreme Court and District Court of Appeal cases as they are released, where the entries are intended to be neutral, nonjudgmental, brief summaries of the facts and holdings, with a link to the full opinion of each case?



The inquiring judge proposes to publish a blog where the judge will be reporting on cases as they are released by the Florida Supreme Court and the District Courts of Appeal. It is not the inquiring judge’s intent to editorialize, criticize, or otherwise evaluate any of the opinions. Instead, the blog would only alert the reader to the release of the opinion and briefly describe what the opinion states. The blog would also alert the reader to changes in the rules of procedure and the Evidence Code.

After discussing prior opinions, the committee notes:

If all cases to be included in the present inquiring judge’s blog were final (i.e. no discussion of pending or impending cases would be included) nothing in the present inquiry suggests the inquiring judge would be placing on the proposed blog anything that could not be included in any other teaching activity.

It is not practicable to list all the provisions of the Code that could apply to a judge’s blog, and a judge must expect to be the subject of constant public scrutiny. Moreover, the Committee does not screen, comment on or approve the content of written material or speech, and likewise will not review in advance the content of any blog.  So, before publishing material on the blog, the judge should carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person. The Committee also advises that an interactive blog may invite inappropriate comment by the judge and therefore the judge would be well-advised to exercise caution in engaging in such activity.  Additionally, the judge may consider adding a disclaimer to the blog that clarifies the judge does not endorse or vouch for the comments of others on the blog, and that such comments do not represent the views of the judge.      

(Mike Frisch)

March 9, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

A Mockery In Nebraska

The Nebraska Supreme Court has disbarred an attorney who had practiced for over a decade on a suspended license. Over that period of time, the attorney engaged in "at least" 65 acts of dishonesty:

Every pleading, every court appearence, every meeting with a client constituted a separate act of dishonesty.

The court concluded that disbarment was appropriate because the attorney's conduct made a "mockery" of the disciplinary systems precepts of self-reporting and honesty. (Mike Frisch)

March 9, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Signs Of Disrespect

The web page of the Utah Bar Journal has this report of a disciplinary sanction:

On September 21, 2011, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against [an attorney] for violation of Rules 1.1 (Competence), 3.5(d) (Impartiality and Decorum of the Tribunal), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
In papers to the court, [the attorney] made continued miscitation of statutes which was more than a mere “typo.” The miscitation was noted by the District Court and not corrected on appeal. [He] intentionally omitted the title of “judge” in referring to Justice Court Judges as a sign of disrespect and in protest intended to disrupt the court room and the administration of justice. In responding to the OPC’s inquiries, [he] utilized the lowercase “j” in the word “judge,” continuing the showing of a lack of respect. [His] behavior throughout the process was disrespectful, unprofessional and intended to prejudice the administration of justice. [He] referred to judges as “revenue collectors in black dresses.” [He] submitted a declaration of his client that contained disparaging remarks. The remarks called opposing counsel a “lying piece of trash” and made other inappropriate and unprofessional comments. [He] also used derogatory language to describe the investigation at the OPC. [He] repeatedly cited the OPC’s investigation as “asinine” and “absolute nonsense.” [He] violated the Rules of Professional Conduct knowingly and intentionally. The level of injury is significant in that the profession as a whole (and the public) is affected by this negative behavior and it contributes to an unprofessional view of lawyers.

(Mike Frisch)

March 8, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Barbour Pardons Upheld

The Associated Press reports:

The Mississippi Supreme Court upheld the pardons issued by former Gov. Haley Barbour during his final days in office, including several that freed convicted killers.

The Republican pardoned 198 people before finishing his second term Jan. 10, including four convicted murderers and a robber who worked as inmate trusties at the Governor's Mansion. Of those pardoned, 10 were in jail at the time.

Democratic Attorney General Jim Hood challenged the pardons. Hood argued before the Supreme Court on Feb. 9 that some pardons didn't meet the requirements of the Mississippi Constitution, which says people seeking pardons must publish notices for 30 days in a newspaper.

In a 6-3 opinion, the justices wrote "we are compelled to hold that — in each of the cases before us — it fell to the governor alone to decide whether the Constitution's publication requirement was met."

The 10 people who were incarcerated when Barbour pardoned them had the most at stake. Among those, five have been held in prison on a temporary restraining order pending the outcome of Hood's legal challenge. It was not immediately clear whether they would not be released.

The other five had already been released by the time Hood persuaded a lower court judge to issue that restraining order.

At the heart of the pardon dispute was Section 124 of the Mississippi Constitution, which says "no pardon shall be granted" by the governor until the convicted felon applying for the pardon publishes notice of that application for 30 days in a newspaper in or near the county where the crime was committed.

Hood contended that if ads weren't run in daily papers every day for 30 days, or weekly newspapers once a week for five weeks, the pardons weren't valid.

Barbour, who once considered a 2012 White House run, was limited to two terms as governor. In addition to the pardons, he also granted medical release and conditional clemency to some inmates, but they weren't required to give public notice.

The opinion is linked here. (Mike Frisch)

March 8, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Indifference Breeds Suspension

The sanction imposed in a bar discipline case can be as much the result of the attorney's attitude to the disciplinary process as the nature of the underlying misconduct.

This observation is supported by a decision of the Oklahoma Supreme Court:

In the case at hand, the Respondent has not been previously disciplined. The trial panel report and the Complainant's brief-in-chief were sent to the Respondent, yet he has repeatedly failed to respond. His actions show a blatant disregard for the disciplinary process and for the Court. At his deposition, Respondent also assured the General Counsel's office that he would hand over Mr. Locklear's documents to them, yet he failed to do so. When asked the last time he had spoken with his client, the Respondent replied, "probably about 18 months." He was then asked if he could give a reason for his lack of communication, to which he simply answered, "no." Assistant General Counsel Rossier continued, "Did you do any work in the case at all to earn your fee?" To which the Respondent replied, "I have not." Respondent's blatant disregard for his client and the Court warrant suspension of two years and one day.

(Mike Frisch)

March 8, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Staying On Sidelines Dooms Appeal

The Wisconsin Supreme Court unanimously (with the Chief Justice concurring and Justice Prosser not participating) held that the United States had failed to preserve appellate review of the case.

The question:

This case requires us to answer a threshold question concerning whether an appeal in this insurance company rehabilitation case may go forward.  The court of appeals granted the motion of the Office of the Commissioner of Insurance (Commissioner) to dismiss the appeal by the United States. The Commissioner had argued that the appeal should be dismissed either on the grounds that the notice of appeal was fundamentally defective such that the court of appeals had no jurisdiction or on the grounds that the United States had waived its right to appeal issues by failing to appear in the circuit court.  The United States Department of Justice attorney who signed the notice of appeal was not admitted to practice law in Wisconsin and had not obtained pro hac vice admission. The court of appeals concluded that the notice of appeal did not include a signature of an "attorney of record" as Wis. Stat. § 802.05 requires.  The court of appeals did not decide the waiver issue but dismissed on jurisdictional grounds.  The United States petitioned this court for review, which we granted.  We affirm the court of appeals on the basis of waiver.

The conclusion:

What is inescapable in reviewing the record in this case is the sense that the United States almost begrudgingly took steps "to preserve its right to appeal" in only the most technical sense while, ironically, overlooking fundamental appellate principles establishing what parties must do to preserve that right: raise their issues in the circuit court in the first instance.  The court of appeals dismissed the appeal on the basis of an unauthorized signature on the notice of appeal.  In reaching our conclusion, we focus not on the signature, but on the fact that the notice of appeal itself was the only effort by the United States to involve itself with the circuit court.  It did, as noted, attempt to remove this matter to federal court.  Despite its apparent outrage at the injunction (in one filing to the court of appeals it stated, "[W]e are not aware of any other creditor that was so mistreated"), it remained on the sidelines while the rehabilitation was proceeding in the circuit court and chose not to raise its objections until after the final order was entered. 

The United States conceded at oral argument that it made an intentional decision not to litigate any of the issues involved in the circuit court.  Our case law is clear and consistent——failure to preserve issues means that they are waived.  Applying well-established principles of law that apply equally to the government when it is a party, we hold that such a decision precludes the United States from pursuing relief in the court of appeals. We therefore affirm the decision of the court of appeals to dismiss the United States' appeal.

(Mike Frisch)


March 8, 2012 in Law & Business, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Deception And Accusations Result In Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended the law license of [a] Cleveland attorney...for 12 months for multiple violations of the state’s Rules of Professional Conduct in two separate cases.

In a 7-0 decision authored by Justice Yvette McGee Brown, the court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] intentionally deceived the Cuyahoga County Domestic Relations Court when he filed an ex parte motion to amend his client’s complaint in a divorce case. Although the motion indicated that the sole purpose for the amendment was to include additional parties, [he] used the amended pleading to surreptitiously insert an answer to a counterclaim seeking to enforce a prenuptial agreement that had been filed by the opposing party two years earlier, but that [he] had failed to respond to within the time limit set by the rules of civil procedure.

Justice McGee Brown wrote: “[the attorney's] conduct in seeking an ex parte order cannot be justified by fear of concealment or dissipations of assets. The board correctly concluded that [he] unjustifiably alleged the existence of the prenuptial argument in the amended complaint without any mention of the issue in his motions for leave to amend the pleadings.  By insisting that he slipped the prenuptial-agreement argument in under the cover of a legitimate issue instead of a flimsy façade, [he] largely distracts from the core problem.  He was not honest with the court when he amended the complaint to add a defense that he might have otherwise waived.  Further, we reject [his] contention that the ultimate settling of the case somehow legitimized his unscrupulous procedural tactics.”

The court also affirmed the board’s finding that in a second case [the attorney] directed a client, Jeffrey Rymers, and a subordinate lawyer in his firm, Nicholas Gallo, to file sworn affidavits, and that [he] personally filed a memorandum in the domestic relations court that recklessly accused Cuyahoga County Common Pleas Court Judge Eugene Lucci of intimidation and abuse of his judicial office after Lucci filed a motion seeking to disqualify [him] from representing Rymers in a pending case based on an alleged conflict of interest.

With regard to [his] accusations, Justice McGee Brown wrote: “The board determined that [he] had personally instructed his subordinate associate to prepare a motion to strike Lucci’s motion to intervene and to prepare the affidavits claiming that Lucci had threatened and intimidated (Rymers). The board found that the statement regarding intimidation was completely false and irrelevant to the legal issues presented in the motion and that [he] had impugned Lucci’s judicial integrity by accusing him of violating the Rules of Judicial Conduct in an improper forum.  The board further found that the excerpt of correspondence from Lucci’s counsel was taken out of context and used ‘in a deliberately misleading manner to imply a threatened abuse of judicial status that was not made.’ The board concluded that [he] had made deliberate misrepresentations to the domestic relations court regarding the conduct of both Lucci and Lucci’s counsel with the intent to deceive the court.”

The court adopted the board’s conclusions that [his] actions violated, among others,  the state disciplinary rules that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; failing to disclose known material facts to a court in an ex parte proceeding, and making a statement that impugns the integrity of a judicial officer that the attorney knows to be false or with reckless disregard as to its truth or falsity.

In support of the court’s unanimous holding that an actual, rather than a stayed 12-month license suspension was the appropriate sanction for [his] misconduct, Justice McGee Brown quoted from the court’s 1995 decision in Disciplinary Counsel v. Fowerbaugh.

She wrote:  “[The attorney's] six violations of the Rules of Professional Conduct stemmed from a course of conduct that was replete with dishonest, deceptive, and disrespectful acts. When an attorney engages in such conduct and violates Prof.Cond.R. 8.4(c), ‘the attorney will be actually suspended from the practice of law for an appropriate period of time. A lawyer who engages in a material misrepresentation to a court ... violates, at a minimum, the lawyer's oath of office that he or she will not “knowingly employ or countenance any ... deception, falsehood, or fraud.” ... Such conduct strikes at the very core of a lawyer's relationship with the court and with the client. Respect for our profession is diminished with every deceitful act of a lawyer.’”  

Justice Terrence O’Donnell joined the court’s decision, but also entered a separate opinion, joined by Chief Justice Maureen O’Connor and Justice Evelyn Lundberg Stratton, in which he responded to an assertion by counsel for [the attorney] during oral argument that ex parte communications (communications between counsel for one party and the judge outside the presence of opposing counsel) were a common practice in proceedings before the Cuyahoga County Domestic Relations Court.

Justice O’Donnell wrote: “Participating in unauthorized ex parte communications is prohibited conduct subject to sanction. Our adversarial system of justice is dependent upon attorneys who respect, understand,  and adhere to the Ohio Rules of Professional Conduct and impartial jurists who strictly adhere to the Code of Judicial Conduct and who resist ex parte engagements. Counsel and judges are reminded of their obligation to adhere to the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct in this regard and to avoid the appearance of impropriety.

The opinion is linked here. (Mike Frisch)

March 8, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2012

Confession Of Juror Bias Brings New Trial

A juror who had served on a jury that delivered a defense verdict in a medical malpractice case went into a bar and spoke to a member of the Bar on the day that the verdict was rendered. A discussion of the juror's service ensued.

As a result, the Oklahoma Supreme Court has ordered a new trial.

The court described the incident:

In the case at hand, a jury returned verdicts in favor of the defendants on plaintiffs' medical malpractice claims. Plaintiffs raised the issue of juror bias for the first time in their motion for new trial. The record of the evidentiary hearing on the motion for new trial reveals that plaintiffs did not learn of the bias on the part of a particular juror until after the verdicts were rendered and the jury discharged. The record reflects that the juror in question went to an Oklahoma City bar later in the day after the trial was concluded. It is undisputed that the juror talked to another individual at the bar about his service on the jury in this case. The other individual was an attorney and a member of the Oklahoma Bar Association. This attorney was employed as a deputy general counsel for an agency of the State of Oklahoma and had no connection to the case or the attorneys for the parties.

According to this attorney, the juror related, inter alia, that (1) the plaintiffs would have never won the case with him (the juror) serving in the case, (2) he (the juror) was not impartial despite stating in voir dire he could be, and (3) he (the juror) wanted to "play the judicial system" and believed plaintiffs had the burden to prove the defendants intended harm beyond a reasonable doubt before they could recover. The attorney also related that the juror expressed his dislike for African Americans. The plaintiffs in this case are African Americans.

The juror also had been untruthful in the voir dire.

The Court:

One of the significant facts in this case is that the disqualifying bias was disclosed by the juror himself, and not by other jurors repeating statements made by the juror during deliberations. Another significant fact is that the juror spontaneously disclosed the bias to a person unconnected to the parties and their counsel, and not in response to prying questions by the parties or their counsel. We stress these points to limit our holding in this case to cases with comparable circumstances.

We also stress these points to make it clear that this Court does not condone jurors impeaching verdicts, or disclosing statements made by other jurors during deliberations. Neither do we endorse efforts by the parties or their counsel to discover a juror's thoughts or personal decision-making process. In a few words, the shocking circumstances of this rogue juror are an absolute factual anomaly that we hope is never to be seen again in Oklahoma jurisprudence. We caution that we will not permit the holding in this case to be used to manufacture a ground for new trial, but we are likewise not hesitant to afford the remedy of new trial free from bias, if such circumstances are ever repeated.

A concurring opinion states in part:

The facts of this case, must be viewed very narrowly. The juror openly volunteered to a total stranger his predilection to deny the litigants a fair trial. The stranger happened to be a member of the Oklahoma Bar Association whose very oath as an attorney includes the support and defense of the Oklahoma Constitution. If we allow the open, intentional destruction of the justice system, by jurors whose agenda is to deny to others the basic principles of equality and justice by reason of personal bias or prejudice concerning a party, we erode the pillars of our constitution.

There is also a dissent. (Mike Frisch)

March 7, 2012 | Permalink | Comments (2) | TrackBack (0)

Untracked Changes

The Montana Supreme Court reversed a grant of summary judgment to an attorney and firm in a legal malpractice suit.

The attorney was retained to represent an individual client (and entities created on his behalf) in a boundary negotiation with a golf course. The client wished to develop adjacent property.

The attorney submitted a draft agreement to opposing counsel. The attorney for the golf course made a series of untracked changes in the agreement and returned it. The attorney did not review the changes and had the client sign it with the changes.

Thereafter, things went poorly for the client. The deal went south and the client lost his home. He filed a pro se suit against the attorney in the name of the entity. He then retained counsel, who filed suit in another county.

The key question was whether, for statute of limitations purposes, the suit initiated through counsel related back to the pro se suit. The court rejected the contention that the pro se suit in the name of the entity was a nullity. Rather, the remand directs the lower court to consider factors in resolving the "relate back" issue.

Practice pointer: Always make sure there are no untracked changes of opposing counsel in a document you have your client sign. (Mike Frisch)

March 7, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Rule 4.2 Violation Draws Sanction, New Trial

The Washington Court of Appeals Division I has ordered a trial de novo in a personal injury matter in which the plaintiff prevaied in mandatory arbitration.

The order was the result of unauthorized communication with a represented party. The court concluded that Rule 4.2 was violated notwithstanding the fact that the defendant initiated the contact. Plaintiff's counsel had the represented party execute a declaration in the matter. He was sanctioned by the trial court and directed to pay $3,000.

The court here declined to disturb the sanction and rejected a variety of challenges to the application of the "no contact" rule.  (Mike Frisch)

March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Attorney "Gets It" And Avoids Disbarment

The South Carolina Supreme Court declined to disbar an attorney who engaged in serious misconduct in light of his efforts to recover from his drug addiction:

The Panel recognized that disbarment was ordinarily the appropriate sanction for a lawyer who misappropriated client funds or whose failure to supervise staff resulted in their misappropriation of client funds.  While it found the facts demonstrated a pattern of serious misconduct over a significant period of time thereby warranting a substantial sanction, it also found mitigating circumstances.  First, respondent made a good faith effort to make restitution once the disciplinary investigation revealed the trust account issues, resulting in full restitution and no client losses.  Second, respondent cooperated fully.  Third, respondent presented significant and compelling evidence in support of his good character and reputation from fellow Bar members.

The Panel also found that respondent's use of illegal drugs was a significant causative factor in his ethical misconduct, but that his "subsequent rehabilitation is so substantial and compelling that it should be considered in mitigation."  We agree that respondent's actions following his arrest have been exemplary, demonstrating most especially a sincere and diligent effort to overcome the substance abuse issues which led to his misconduct.

Respondent was arrested on a Friday, sought counsel from an attorney known to the local Bar as an expert on substance abuse issues on Tuesday, began attending AA meetings on Saturday, and self-reported his arrest.  He immediately entered an intensive rehabilitation program run by MUSC. Respondent went to 90 AA meetings in his first 90 days, completed the rehabilitation program, began counseling sessions with one of the MUSC therapists (which continue years later), and attended Wednesday night relapse prevention meetings. Respondent has worked on a golf course grounds crew during his suspension.

Respondent’s AA sponsor and Robert Turnbull, director of the Lawyers Helping Lawyers Program, testified on respondent’s behalf before the Panel.  The sponsor testified to respondent’s deep and abiding commitment to the tenets of AA.  Mr. Turnbull praised respondent’s efforts to maintain his sobriety, testifying the respondent was one of the few attorneys he has worked with who “gets it.”

The court imposed an eighteen-month suspension. (Mike Frisch)

March 7, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Exactly Disbarred

The New York Appellate Division for the First Judicial Department has accepted the resignation and removed from its rolls an attorney convicted in an investment fraud scheme.

The court described the conviction:

...respondent pled guilty, in the United States District Court for the Southern District of New York, to conspiracy to commit money laundering (18 USC § 371; 18 USC §§ 1956[a][1][A][i], [B][i]), stemming from his allowing his client, former investment advisor Kenneth I. Starr, to use respondent's escrow accounts in furtherance of Starr's illegal use of investor funds, by wiring illegally-obtained funds into and out of those accounts.

The court concluded that the crime was sufficiently dissimilar from any state felony so as to avoid automatic disbarment, as Departmental Disciplinary Committee had argued.

The result was appropriate in light of the attorney's admissions:

The Committee relies on an admission by respondent that he knew that a substantial portion of the funds being wired by Starr were the proceeds of unlawful activity, and knew that allowing Starr to do so was illegal, and another more specific admission that he allowed Starr to transfer into the account $1 million stolen from a talent agency executive, and at Starr's direction respondent himself transferred the same amount from the account to the bank account of a certain actress. However, these statements fail to establish that respondent admitted acting with the intent to defraud Starr's investors. Scheme to defraud in the first degree, as defined by Penal Law § 190.65, requires an intent to defraud on the part of the offending party, as opposed to merely facilitating fraudulent conduct by a third party...

Acceptance of respondent's resignation now will expeditiously remove respondent from the roll of attorneys and dispense with the need for undertaking the protracted process that a serious crime hearing would entail, the better procedure here.

The court declined Departmental Disciplinary Committee's request that it order the attorney to pay restitution. (Mike Frisch)

March 7, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Touro Law Hosts Speaker 3/20 on Orthodox Jewish Lawyering and Change in the Profession

Touro Law Center's Jewish Law Institute features Nathan Lewin as part of its Distinguished Lecture Series, on Tuesday, March 20, at 5:30 pm.  Lewin, a renowned advocate of religious freedoms and frequent arguer before the U.S. Supreme Court, will deliver a lecture, "The Legal Profession and the Orthodox Jewish Lawyer: Change Over Half a Century." It is open to the public and more information is linked here.  [Alan Childress]

March 6, 2012 in Conferences & Symposia, Law & Society | Permalink | Comments (0) | TrackBack (0)

Get Mad, Get Even, Get Reprimanded

The Massachusetts Board of Bar Overseers has publicly reprimanded an attorney who got a letter from Bar Counsel concerning his availability to testify against another attorney who practiced personal injury law in the same locale.

The two attorneys had "a long history of personal animosity, principally over the sharing of fees when clients shifted their cases from [the reprimanded attorney] to [the other attorney]."

The reprimanded attorney "redacted the address and salutation of the letter and then anonymously distributed it and a printout of information about [the] disciplinary proceeding to a number of chiropractors the whom the respondent did business." The "redactions made it appear that the [chiropractors who received the altered letters were being asked to give testimony at [the other attorney's] disciplinary hearing."

A hearing committee had found that the conduct "was intentionally false, deceptive, and misleading..." The board agreed. (Mike Frisch)

March 6, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

You May Sue

The New Jersey Supreme Court has held that a suit for legal malpractice was not barred under a prior decision of the court.

The prior decision "did not erect an absolute bar to a claim of malpractice if a former client enters into a settlement with regard to the underlying action before obtaining a decision with respect to the complained-of conduct of the attorney." Unlike the prior case, the malpractice claim against one of the two sued attorneys "arose out of [the attorney's] post-settlement actions."

The case related to representation of the client in connection with a divorce property settlement agreement. The former client sued the first attorney she had retained as well as the attorney who was retained to succeed him. The court found both attorneys were not entitled to summary judgment. (Mike Frisch)

March 6, 2012 in Clients | Permalink | Comments (0) | TrackBack (0)

A Bad Odor

Another day, another dissent from the Wisconsin Supreme Court.

Today's case involves whether the stink from accumulated bat guano is covered by an insurance policy on a vacation home at Lake Tomahawk, Wisconsin.

 Justice Ziegler holds "no."

We conclude that the pollution exclusion clause in Auto-Owners' insurance policy excludes coverage for the loss of the Hirschhorns' home that allegedly resulted from the accumulation of bat guano. First, we conclude that bat guano falls unambiguously within the policy's definition of "pollutants." Second, we conclude that the Hirschhorns' alleged loss resulted from the "discharge, release, escape, seepage, migration or dispersal" of bat guano under the plain terms of the policy's pollution exclusion clause. Accordingly, the circuit court properly dismissed the Hirschhorns' complaint against Auto-Owners.

Justice Abrahamson, joined by Justice Bradley, dissents:

...instead of utilizing context to discern meaning, the majority uses a backward method. It first selects one dictionary definition from among many to define "'waste' [as] unambiguously includ[ing] feces and urine." Majority op., ¶35. The majority's selected dictionary definition ends the discussion of the meaning of "waste." The majority's approach fails in several respects. It fails to read words in the insurance policy in context to discern their meaning; it fails to read the insurance policy from the perspective of a reasonable insured; and it fails to construe ambiguities against the drafter and in favor of coverage.

(Mike Frisch)

March 6, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Misappropriation, Fabrication Gets Two Year Suspension

The Ohio Supreme Court imposed a two-year suspension of an attorney who misappropriated entrusted funds in two matters. The attorney also fabricated a fee dispute and made other misrepresentations in response to the bar complaint.

The attorney also must complete 12 hours of CLE in accounting and law office management and be subject to a year of monitored probation on reinstatement.

In an unrelated matter, the court permanently disbarred an already suspended attorney who stole trust funds while working as a paralegal. He pled no contest to resulting criminal charges. The court noted precedent holding that disbarment is the presumptive sanction for misappropriation.

This leads me to wonder why the first case (misappropriation plus dishonesty) departed from that presumption. (Mike Frisch)

March 6, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Bar Discipline Default Judgment Changes Proposed

The web page of the Ohio Supreme Court reports that the court is considering changes to the disciplinary system:

The Supreme Court of Ohio announced proposed rule amendments today to refine the existing default judgment process when a lawyer fails to comply with his professional duty to respond to disciplinary charges. Written comments on the proposed amendments will be accepted until April 3.

Recommended by the Board of Commissioners on Grievances & Discipline, the proposed changes are intended to meet two goals:

  • to encourage respondents to participate in the disciplinary process and do so more promptly.
  • to protect the public from a lawyer who has ignored his or her duty to cooperate with the disciplinary authorities or is attempting to manipulate or delay the process while continuing to practice law.

The amendments to the Supreme Court Rules for the Government of the Bar of Ohio concern Rule 5 Disciplinary Procedure and new Section 6a Default; Interim Default Suspension.

Under the proposed amendments, the secretary to the board would be required to certify the respondent’s default to the Ohio Supreme Court “within a reasonable period of time after the date the answer was due.” The court would have the authority to order an interim default suspension that would remain in effect for at least six months. The interim suspension could be lifted if the respondent files a motion for leave to answer the formal complaint and if the court remands the matter to the board for hearing. The entity bringing the misconduct charges also could initiate default disbarment proceedings during the first six-month period if it believes the respondent’s misconduct is so serious as to merit the permanent loss of his or her license to practice law.

If no motions are filed within six months, the interim default suspension would be converted to an indefinite suspension that would prevent the lawyer from seeking reinstatement to the practice of law for a minimum of two years.

Richard A. Dove, secretary to the board, said the board “believes the proposed amendments address the stated goals while promoting finality in disciplinary proceedings and protecting the due process rights of attorneys accused of misconduct. Moreover, the board believes the proposed amendments comport more closely to the manner in which other states handle disciplinary actions where the respondent is in default.”

The board also recommended changes to its probable cause process to allow more flexibility in reviewing and certifying complaints. Specifically, probable cause panels would meet between full board meetings and eliminate delays between when complaints are filed and certified.

View the text of the proposed amendments.

Comments should be submitted in writing to:

Rick Dove, Secretary
Board of Commissioners on Grievances & Discipline
65 S. Front St., Fifth Floor
Columbus, Ohio 43215

                                                                       (Mike Frisch)

March 6, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

How Not To Get Your License Back

The Wisconsin Supreme Court denied the petition for reinstatement of an attorney suspended for two years in 1999.

The court noted concerns expressed by the referee:

...the referee found that Attorney... had failed to meet several of the criteria for reinstatement. Many of the criteria are interrelated, as evidenced by the referee's comments. The referee expressed an overriding concern about the manner in which Attorney...presented her reinstatement petition. According to the referee, Attorney...did not follow basic lawyering standards for presentation and refutation of documentation or witness procurement and preparation. More specifically, Attorney...did not present witnesses or exhibits either to support her petition or to refute an adverse exhibit offered by the OLR. The referee expressed concern that Attorney...twice incorrectly stated that the sole issue before the referee was whether she satisfied the supreme court's order with respect to having her mental health issues under control. The referee explained: "In her demeanor was both casualness about the reinstatement process and an unsubstantiated confidence in her readiness to resume practice."

The referee also indicated that there were incomplete disclosures in the petition. (Mike Frisch)

March 5, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

DOJ Official Admonished

A Subcommittee of the Virginia State Bar has admonished a Department of Justice official for drafting a statement denying that Monica Goodling had improperly used political affiliation in selecting potential employees for career position at the Department.

The pertinent portion of the report of the DOJ Inspector General in the matter is linked here.

The attorney admitted that he had personal knowledge to the contrary.

in July 2009, the District of Columbia Bar Counsel informally admonished the attorney for the same conduct.

The conduct was founf to be in violation of Rule 8.4(c) in both jurisdictions. (Mike Frisch)

March 5, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)