March 23, 2012
Judge Censured For Committing Truth
A Laramie municipal court judge has been publicly censured by the Wyoming Supreme Court.
The judge attended a meeting of the city council. He suggested that the council take up the issue of towing charges.
The judge said
...quite frankly the towing people are gouging 'em. If you can make some amendments to the ordinance dealing with that as to the maximum amount, anything else is usurious or ridiculous or unconscionable.
The Kansas Court of Appeals has affirmed the dismissal of a declaratory judgment action brought by a national law firm located in Maryland.
The law firm (and Kansas attorneys that it employs) offer debt relief services. They are the subject of complaints from several Kansas clients. The complaints triggered an investigation by the state banking commissioner that the lawyers possibly have engaged in unregistered credit and debt management services.
They responded by filing the declaratory judgment action, contending that only the Kansas Supreme Court had the the authority to regulate the conduct of lawyers and law firms.
The court here agreed with the lower court that the law firm had failed to exhaust administrative remedies. (Mike Frisch)
March 22, 2012
Prosecutor Ethics Symposium At Georgetown Law
Symposium sponsored by:
The Georgetown Journal of Legal Ethics
The Center for the Study of the Legal Profession
The Conscience and Culture of Prosecution
Monday, March 26, 2012
Georgetown University Law Center
Gewirz 12th Floor
9:00 A.M.-9:30 A.M.
Welcome & Check-In
9:30 A.M.-9:45 A.M.
9:45 A.M.-10:15 A.M.
Introduction and Screening from Documentary Filmmaker and Producer Ofra Bikel
10:20 A.M.-11:15 A.M.
Moderated by Abbe Smith • Professor of Law, Director, Criminal Defense and Prisoner Advocacy Clinic, Georgetown University Law Center
Ofra Bikel • Documentary Filmmaker and Producer
Paul Butler • Carville Dickinson Benson Research Professor of Law, George Washington University LawSchool
Angela J. Davis • Professor of Law, American University Washington College of Law
Bruce Green • Louis Stein Professor of Law, Fordham University School of Law
11:20 A.M.-12:00 P.M.
Keynote Address Manhattan District Attorney Cyrus Vance, Jr.
The Georgetown Journal of Legal Ethics
Anna Offit, Editor-in-Chief Erini Svokos, Symposium Editor
Contact Erini Svokos, firstname.lastname@example.org
Please RSVP at https://www.law.georgetown.edu/cle/showEventDetail.cfm?ID=280
Payment Stopped, Attorney Struck
The New York Appellate Division for the First Judicial Department accepted the resignation of an attorney and struck him from its rolls.
The admitted misconduct:
With respect to the complaint filed against him, respondent states that Harvey D. Wolinetz (Wolinetz) alleges that respondent represented Eliyahu Weinstein (Weinstein) in several complex commercial real estate transactions in which Wolinetz was also involved. At Weinstein's behest, respondent advised Wolinetz that Weinstein had deposited nine million dollars into respondent's escrow account and that the funds would clear the next day. While the funds had in fact been deposited, Weinstein subsequently stopped payment on those funds, making them unavailable. Respondent never so advised Wolinetz. Never having been advised that the funds were no longer in respondent's escrow account, Wolinetz went forward with loan transactions related to the real estate transaction to his detriment.
Non-Refundable Fee And Failure To Return It Draws Six-Month 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 six months for professional misconduct in his dealings with a criminal defendant from whom [he] demanded a “non-refundable” $15,000 fee advance, which [he] later refused to return despite withdrawing from the case without interviewing any witnesses, reviewing any discovery materials or negotiating a plea on behalf of the client.
In its 6-1 per curiam opinion, the court also ordered [the attorney] to refund all of the client’s $15,000 fee.
The court adopted findings by the Board of Commissioners on Grievances and Discipline that [his] conduct violated the state disciplinary rules that require attorneys to promptly refund unearned fees after withdrawing from representation, and prohibit an attorney from charging an illegal or clearly excessive fee; charging a “flat fee” without simultaneously advising the client he or she may be entitled to a refund if the a lawyer does not complete representation; and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
The court overruled [his] objections to the disciplinary board’s recommendation of an actual suspension from practice. It cited the aggravating factors that “[the attorney] acted with a dishonest and selfish motive, cooperated only grudgingly in the disciplinary process with an air of righteous indignation, was evasive and lied during his testimony at the panel hearing, refused to acknowledge the wrongful nature of his conduct, harmed vulnerable clients, and failed to make restitution.”
The court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.
Justice Terrence O’Donnell dissented, noting that [the attorney] had no prior disciplinary violations and submitted letters from more than 50 judges and attorneys attesting to his contributions to the legal profession, pro bono service, and reputation for honesty, good character and hard work on behalf of clients.
Justice O’Donnell wrote: “I offer no excuses for [the attorney's] conduct, which arose out of a fee dispute, but in sanctioning that conduct, I would accord greater weight to [his] long and distinguished career. ... Based upon these attestations and the facts in this case, I conclude that [his] conduct is an isolated incident in an otherwise unblemished 42-year legal career. In my view, an actual suspension from the practice of law is unnecessary to protect the public from future harm, but rather is excessive and punitive in light of the mitigating factors in this case. Therefore, I would impose a six-month suspension, all stayed, on the conditions that [he] commit no further misconduct and submit to fee arbitration to determine the amount of refund, if any, owed to the Bell family.”
The client was charged with several felonies artising from an assault on a police officer that allegedly took place during a "brawl in the stands" at a Cleveland Indians - New York Yankees game.
The client was a 19 year old from upstate New York (likely a Yankees fan) who had no ties to Cleveland other than the criminal charges, which he continues to deny. He found the attorney through a referral from a bail bondsman.
The court's opinion is linked here. (Mike Frisch)
Lawyer Blogs And Bar Discipline
The American Bar Association is doing a CLE program on the potential bar disclipline consequences of lawyer blogs:
If your law firm has a blog and you have not paid attention to the matter of Horace Hunter v. Virginia State Bar, you want to participate in this ethics CLE that addresses what amounts to a case of first impression in how blogs are interpreted under the Modern Rules of Professional Conduct.
Blogs have been around since the late 1990s, yet this recent cyberspace battle in Virginia is the first real challenge by a state bar to the often cloudy areas of interpretation. Is a blog advertising, marketing, editorial, personal, or business? Where does the First Amendment end and the Model Rules of Professional Conduct begin? Should a state bar look at a blog as marketing or something else?
This expert panel, including the plaintiff, Horace Hunter, features some of the profession’s leading voices in the world of legal ethics, blogging, and first amendment issues. Get a grasp on the numerous ethics issues up for discussion when examining the use of blogs by lawyers (“blawgs”) against the backdrop of state bar rules, ethics opinions, and court cases. Participation in social networking sites and its relationship to the Model Rules of Professional Conduct will also be discussed.
March 21, 2012
Former Prosecutor Disbarred In Michigan
The Michigan Attorney Discipline Board has increased a suspension of two years imposed by a hearing panel and ordered the disbarment of a former prosecutor convicted of a felony involving misconduct in office. The Board's opinion is linked here.
Detroit News has the story:
Wayne County's former chief drug prosecutor has been disbarred after the state Attorney Discipline Board ruled Tuesday that her two-year suspension for lying in court was too lenient of a punishment.
Karen Plants conspired with two Inkster narcotics officers to lie about the conduct of an informant in a case stemming from a 2005 cocaine bust. Plants pleaded guilty and was sentenced to six months in the Wayne County Jail. The two officers pleaded guilty to misdemeanors.
Mary Waterstone, the judge who presided over the case and allegedly knew about the lies, has since retired and is appealing her charges of misconduct in office.
A hearing panel in April decided to suspend Plants' law license for two years, but the state's attorney Grievance Administrator argued that the punishment wasn't strong enough.
"The hearing panel found 'that the respondent . . . committed misconduct in offce (sic) by knowingly allowing false testimony to be given during a trial and by making misleading arguments to a jury' and imposed a suspension of two years, ordering that the suspension would be effective as of the date of her March 2, 2011 guilty plea," the Attorney Discipline Board wrote in its 48-page ruling. "The Grievance Administrator has petitioned for review, arguing that disbarment is the appropriate sanction. We agree."
Plants' misconduct came to light in 2006 in a previously sealed transcript of a private 2005 conversation in Waterstone's chambers, in which Plants informed the judge about the lies. The judge said she would allow them to go unreported to protect the life of the informant.
The transcript was uncovered when lawyers for the convicted drug dealer, Alexander Aceval, launched a series of unsuccessful appeals.
Plants can reapply for her license after five years but will have to appear before a panel and retake her bar examination.
There are concurring and dissenting opinions on the sanction issue. (Mike Frisch)
Threat Draws Admonition
The New Jersey Supreme Court has directed its Disciplinary Review Board to issue a letter of admonition to an attorney who threatened a client with criminal charges to obtain an improper advantage in a civil matter.
The attorney was engaged in an attempt to collect a fee. He sent the client a letter excerpted here:
[I]f I do not receive payment [in two days] I will be forced to file a Complaint in Civil Court and will file criminal charges for theft of services against you. Should I be forced to take this action, you will incur additional costs.
The client testified that she was "pretty upset" about the threat and contacted the attorney to send her a bill.
The attorney also did not have a writing setting forth the basis and rate of his fees. (Mike Frisch)
"Such Steps As Are Necessary"
A new judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 6 - 2012
RE: Does the Code of Judicial Conduct require a municipal judge to transfer an employee to another department because the employee’s spouse is undergoing a criminal investigation.
The spouse of an employee of a municipal court is being investigated by a federal agency. While the employee is not being investigated, there is a concern that the employee has access through the South Carolina Law Enforcement Department to National Crime Information Center (NCIC) database. The database contains information regarding the employee’s spouse and others who are targets of the federal investigation. A municipal judge inquires as to whether the Code of Judicial Conduct requires the judge to transfer the employee to another department in order to avoid the appearance of any impropriety.
A judge must require court staff to observe the same standards of fidelity and diligence that apply to the judge.
Canon 3C(2) states that a “a judge shall require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.” The term “require” means “a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control.” Rule 501, SCACR, Terminology. The Judge must take such steps as are necessary to ensure that “the standards of fidelity and diligence” of the judicial office are maintained.
March 20, 2012
Persistence Pays Off
A rather remarkable personal odyssey has ended in the admission of an applicant to the New York Appellate Division for the First Judicial Department. The applicant was admitted in New Jersey in 2005, as well as in several federal courts.
The court described the background story:
Petitioner, a twice-convicted felon, submitted his tenth renewed application to the Committee on Character and Fitness for admission to the bar. The unusual and lengthy history of petitioner's efforts to gain admission to the New York bar has been affected by differing views of whether petitioner has the moral character and fitness to practice law. The impediment to approval has been the serious crimes committed by petitioner years ago. In prior applications, we judged the passage of time to be insufficient to evaluate the success and sincerity of his rehabilitation.
The salient events and ensuing criminal trial conducted over a quarter century in the past can be briefly summarized. Principally, petitioner was convicted in federal court in connection with his operation of a business from about 1980 to 1982 that had the appearance of legality but which was actually an illegal enterprise for distribution of Quaaludes. Petitioner ran putative sleep clinics where he would direct drug purchasers to physicians participating in the scheme, who would then write prescriptions for the purchasers, which would be filled by participating pharmacies. The scheme was both extensive and financially successful and allowed petitioner to lead a flamboyant lifestyle, including his own extensive drug use. However, his life increasingly spiraled out of control and, as federal authorities closed in, he entered into a despondent emotional state that manifested itself in criminal acts committed in July 1983 against his former girlfriend, who also was involved in the drug distribution scheme. Although the girlfriend had separated from petitioner and moved out months earlier, she yielded to his request to see her again. When they met, he displayed a gun and kept her in her apartment for more than seven hours until she tried to escape while he was in the bathroom. As she jumped from the second floor apartment and tried to flee (seriously injuring herself), petitioner fired five or six shots in her direction but did not hit her. According to petitioner's testimony, he had told her that he intended to commit suicide.
Petitioner was arrested, and in 1985, after a jury trial in Richmond County, he was convicted of attempted murder in the second degree, burglary in the first degree, unlawful imprisonment in the first degree, criminal possession of a weapon in the third degree and criminal use of a firearm in the first degree for which he was sentenced to 12½ to 25 years (People v Wiesner, 129 AD2d 753 , lv denied 70 NY2d 658 , lv dismissed 71 NY2d 1034 ). In 1987, he pleaded guilty in the Southern District of New York to conspiracy to violate federal narcotics laws and to distribution and possession of Quaaludes. He was sentenced to time served, having been in federal custody since his December 1984 arrest.
After his release from prison, in a remarkably short period of time, petitioner obtained a college degree and a law degree from CUNY School of Law, and passed the bar in 1994. These academic achievements reflect well on petitioner's intelligence and competence, and demonstrate his capacity to reassert control over his future. However, these achievements, while commendable, do not resolve the issue we must determine, which is whether petitioner has been sufficiently rehabilitated to satisfy the character and fitness requirement set forth in Judiciary Law § 90 for admission to the bar.
As to admission:
The amount of time during which petitioner has been beneficially engaged in his profession, including pro bono and community work, coupled with the persuasive and often heartfelt testimony of witnesses who have developed a deep familiarity with him — some of whom by experience and training are well equipped to scrutinize his personal development — persuade us of the success of his rehabilitation. It is telling that petitioner's character references hailed from respected positions of advanced achievement and, themselves, enjoy reputations for high moral character. While readily conceding that this Court cannot foretell the future, we return to the earlier observation made that we cannot reach into the internal workings of petitioner's mind to gauge his character, but must generally rely on his conduct as an accurate manifestation thereof. Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society — matters to which all witnesses have attested — as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement set forth in Judiciary Law § 90.
Further, petitioner's expressions of remorse, which are both extensive and have the ring of candor, were consistently corroborated by the testimony of the witnesses. Petitioner's memories and perceptions of his actions and motivations on the night he fired shots towards his fleeing former girlfriend, remain consistent with his earlier testimony that he did not intend to hurt and shoot her. The subcommittee elicited that petitioner at that stage in his life was constantly intoxicated by drug use, primarily amphetamines and Quaaludes, and he had taken an entire bottle of 30 prescription pills (Tenuate Dospan) on the day in question. This was not a drug he was accustomed to taking, and the effect on him was unfamiliar. He described himself as "super-wired," and appreciated how this might have frightened his former girlfriend. However, at no time did petitioner try to justify his actions as being the consequence of intoxication; rather, it was the subcommittee that elicited this contextual information. Although petitioner recalled what he perceived to be his intent, his memory was blurred as to many events of the evening.
The subcommittee, having had the opportunity to scrutinize petitioner's demeanor during his testimony and to examine him, summarized in its report that petitioner was "stoned" on drugs at the time, that he was not being intentionally untruthful in his characterization of the events of that evening as he recalled them, and that, at the time of the incident, he was obviously in a highly agitated state, enhanced by the drugs he had taken. Significantly, the record also reflects that there is not one scintilla of evidence that he acted violently or even recklessly with attendant violent result on any other occasion. All witnesses, to the contrary, describe a peaceful and considerate, if hyperactive, person. The subcommittee concluded that petitioner "expressed palpable remorse for his past criminal conduct" and that his "present respect and passion for the law were abundantly obvious from his testimony."
Based on this record, the dissent nevertheless would impose on this particular petitioner a threshold for moral character that suggests an endless quest in which petitioner will never succeed. The dissent, although casting its net wide in reviewing how moral character has been variously defined, appears to employ a much narrower standard as it drills down decades into the past to give new life to 30-year-old crimes to conclude that petitioner has not fully accounted for that past and, thus, lacks candor. The dissent devotes a substantial portion of its writing to extensively detailing petitioner's prior illegal conduct surrounding the detention and shooting incident involving his former girlfriend, in effect, trying petitioner all over again for the crime of attempted murder and related counts committed well past a quarter of a century ago; but for which petitioner had pleaded guilty and served time for these crimes ages ago. Moreover, the dissent's conclusion that petitioner has started the journey towards rehabilitation but is "not there yet," begs the question: how is petitioner to get "there." In the dissent's formulation, it seems that petitioner must testify that he intended to kill his former girlfriend and shot at her, fortuitously missing, in furtherance of that intent. However, petitioner's consistent testimony has been to the contrary. Perhaps his drug intoxication at the time confused his motives as well as his memory, or perhaps he sincerely believes that the way he remembers the event is the truth. Perhaps, in fact, it is the truth. We really cannot know. However, with respect to what petitioner truly believes, this Court cannot ignore that his sheer doggedness in adhering to his earlier, somewhat muddled, explanation has likely not helped him over the past many years during which he has sought admission. Yet, there was little incentive for petitioner to testify that he lacked culpable intent, especially since he was already convicted of attempted murder in the second degree, on a plea of guilty, even if it was an Alford plea. Although the dissent dismisses our review of the testimony as paying mere "lip service" to candor, to the contrary, we have carefully evaluated petitioner's candor without resorting to any preconceived assumptions. In the final analysis, the dissent seems to be speculating about petitioner's mindset, and to get "there," it seems that petitioner would have to change his testimony to conform to the dissent's expectations. However, we cannot rest our analysis on the dissent's preferred outcome. The dissent characterizes our finding as a "whitewash," but, as is evident in our analysis and discussion above, we have scrutinized an extensive record to arrive at what we find to be an appropriate and just result.
The lengthy dissent concludes:
I have never suggested that petitioner's rehabilitative efforts and accomplishments be ignored; I recognize that petitioner has started down the road to redemption and rehabilitation. But, he simply has not gotten there. Despite the lengthy period of time that has elapsed, and petitioner's unblemished professional record, the grant of his application is premature, because he has not established his complete rehabilitation and will not be able to do so until his testimony fully acknowledges, and either admits, explains, or challenges the evidence contained in the trial transcript as to his past criminal conduct, rather than simply skirting around it. The majority has, in effect, accepted a new, watered-down standard for admission. It accepts that the mere passage of a lengthy period of time after an applicant completes a term of imprisonment for a serious felony conviction, during which period the applicant lives an unblemished life, combined with a murky expression of remorse and little acknowledgment of his wrongdoing, is enough to warrant admission to the bar. I do not believe that has ever been the standard for bar admission in New York, nor should it be now.
The majority opinion notes the extensive favorable character testimony on behalf of the applicant. The opinion notes, and the dissent concedes, that he has practiced in a competent and ethical manner since his admission in New Jersey. (Mike Frisch)
Disbarment Order Overturned For Due Process Violation
In an appeal from a Disciplinary Hearing Commission order of disbarment, the North Cartolina Court of Appeals reversed based on its determination that the due process rights of the accused attorney had been violated.
The State Bar filed a complaint alleging that the attorney had "knowingly misrepresented the seller's $7,400 loan to the buyer as a down payment on the HUD-1 statement." The State Bar moved to compel discovery responses. The attorney sent the DHC this e-mail in response:
I reviewed your bogus order to compel. I will not be producing anything. in fact, I will never be in communication with any of you people ever again.
I will not be at the February hearing.
I am moving on with my life. You have no power over me. You are mistaken to think that you do. You are fully aware that Mrs. [Leanor] Hodge [the attorney handling the matter for the State Bar] is lying. Apparently, this is status quo.
At the hearing, the State Bar presented evidence of fraud that differed in material respects from the allegations.
The court here held that the lack of notice amounted to a due process violation. The court further held that disbarment could not be imposed based on the violation of the order to compel discovery.
You don't often see such holdings in bar discipline cases. (Mike Frisch)
When Federal Prosecutors Need Ethics Advice
One interesting aspect of the recently-released report into prosecutorial misconduct in the case against Senator Ted Stevens provides some insight into the process by which line Assistant United States Attorneys obtain ethical advice from Main Justice.
The report (at pages 212 through 256) describes the involvement of the Professional Responsibility Advisory Office ("PRAO") and the office's advice on Brady obligations concerning key witness Bill Allen.
The DOJ web page sets out PRAO's mission:
The mission of the PRAO is to provide prompt, consistent advice to Department attorneys and Assistant United States Attorneys with respect to professional responsibility and choice-of-law issues.
The major functions of PRAO are to:
Provide advice to government attorneys and the leadership at the Department on issues relating to professional responsibility.
Provide coordination with the litigating components of the Department to defend Department attorneys and Assistant United States Attorneys in any disciplinary or other hearing where it is alleged that they failed to meet their professional responsibility obligations.
Serve as liaison with the state and federal bar associations in matters related to the implementation and interpretation of 28 U.S.C. 530B (the Ethical Standards for Attorneys for the Government Act) and any amendments and revisions to the various state rules of professional conduct.
Conduct training for Department attorneys and client agencies to provide them with the tools to make informed judgments about the circumstances that require their compliance with 28 U.S.C. 530B (the Ethical Standards for Attorneys for the Government Act) or that otherwise implicate professional responsibility concerns.
Here, the report notes that the prosecutors twice sought PRAO's advice on their disclosure obligations. The advice given was based on faulty premises and thus did not provide safe harbor to the prosecutors.
The form that PRAO uses to summarize the questions posed and memorialize the advice given is set forth in the report. (Mike Frisch)
March 19, 2012
More False Binaries: Teaching versus Experience
Posted by Jeff Lipshaw
Apropos of Bill Henderson's post at The Legal Whiteboard on whether "cooperation" can be taught, the Wall Street Journal's special Monday section today featured a series of "yes-no" debates relating to small business, including the question: "Can Entrepreneurship Be Taught?" Not surprisingly, a Harvard Business School professor takes the affirmative and a Silicon Valley venture capitalist takes the negative.
Yes-no questions of this kind, like law school rankings, make for fun reading and water cooler debate, but ultimately try to digitize the analog. The problem in both cases comes from confusing (a) the model with the reality, and (b) the data marshalled for argument (the "is" or the "descriptive") with theorist's theory (the "ought" or the "normative"). Indeed, rankings and binary debate questions emphasize the twin problems differently. With rankings, the more apparent issue is the former: confusing the model with the reality. The more subtle issue is whether the theory of the ranking holds water, even as to data relatively immune from manipulation (e.g., is peer reputation a self-reinforcing loop?) When looking at a debate question like "Can entrepreneurship be taught?", the more apparent issue is the latter. It's pretty easy to spot the normative focus. What is more subtle is the falsity of the "yes-no" model itself - as though "teaching," "experience," and "entrepreneurship" have objective definitional boxes such that it's meaningful even to debate the issue in that form.
As I reflect back on my career in corporate management, it occurs to me that part of my job was to puncture false binaries in organizational disputes over things like territories, responsibilities, causation, credit, or blame, often by recasting the question from "us or them," "inside or out," "team or individual," "cash or stock," "employees or shareholders" into another conceptual model (i.e., another theory of the problem). As I observe my present career in academia, I see the same kinds of false binaries in doctrine, pedagogy, and administration. Are lawyers, by training, unusually inclined to delight in just such conceptualizations? No, talk to an engineer - mechanical, civil, electrical, organizational, financial, or transactional cost (pace Ron Gilson) some time. Nevertheless, are false binaries a problem among lawyers and in legal education? If so, who is competent to deal with them?
[Cross-posted at The Legal Whiteboard]
Effort At Admission By Motion Ends With Disbarment
The Maryland Court of Appeals has disbarred an attorney admitted in 1997. The misconduct involved the attorney's dishonesty in connection with her efforts to waive into the District of Columbia Bar.
In the D.C. admission, questions arose concerning the attorney's compliance with the rule governing unauthorized practice in the District. The attorney sought advice from the general counsel of her law firm (Drinker Biddle) and then admitted that she had submitted false documents.
[The attorney] has stipulated that she fabricated exhibits to her [D.C.] bar application to advance her misrepresentations to the Admissions Committee concerning her compliance with D.C. Rule 49 - actions that involve dishonesty, fraud, deceit, and misrepresentation. An applicant's fabrication of evidence designed to mislead a bar examiner is prejudicial to the administration of the laws governing the practice of law.
[The] misconduct was not a reflexive exculpatory statement of one unexpectedly confronted with a misdeed. Rather, it was a carefully contrived effort that required a detailed alteration of samples of her past correspondence spanning more than a decade and several law firms.
The Off Chance
A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.
The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.
There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case) had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.
The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.
The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:
On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.
New York City's Indigent Representation Plan Approved
A decision from the New York Appellate Division for the First Judicial Department:
In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan,and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.), is not arbitrary and capricious or irrational (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 ), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18-B of the County Law (as amended by L 2010, ch 56, pt E, § 3) or Municipal Home Rule Law § 11(1)(e).
The revised plan is a lawful "combination" plan under County Law § 722(4), providing indigent representation under the "private legal aid bureau or society" option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the "plan of a bar association" option of § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide "conflict counsel." Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13-03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 "Bar Plan," to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts (see 43 RCNY 13-05).
There is a dissent:
This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called "conflict cases" - cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised Title 43 of the Rules of the City of New York by adding Chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.
Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City's ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City's new plan violates County Law § 722 and Municipal Home Rule Law § 11(1)(e). I agree.
Reprimand For Trust Account Lapses
The Indiana Supreme Court has imposed a public reprimand of an attorney engaged in a solo family law practice. The attorney had relied on a paralegal to set up her client trust account and establishing the means to have clients psy by credit card.
As the attorney admitted, the reliance was a mistake. Among other lapses, she failed to maintain required records, made disbursements to "cash" or "self," and failed to keep a nominal account balance. The account became overdrawn due to automatic credit card processing fees.
The attorney was at first uncooperative and then "provided inaccurate and misleading information" to the bar authorities.
The court found that no client suffered a loss. The attorney did not engage in dishonest conduct and has educated herself on the proper operation of a client escrow account. (Mike Frisch)
March 18, 2012
Divided Mississippi Court Grants Conditional Readmission
An interesting reinstatement petition has convinced a majority of the Mississippi Supreme Court to grant readmission to an attorney disbarred in April 2003 for misappropriation of client funds. The misconduct involved the petitioner's use of money intended for his client's bail premium.
The bail was reduced and the premium paid, but there were nearly $5,000 left over. The petitioner failed to return or account for the unused advanced expenses.
The petitioner had a record of discipline prior to disbarment that included three informal admonitions, two private reprimands and three public reprimands.
In July 2004, he entered a nine-month in-patient treatment program for alcoholism. He has maintained sobriety since completing the program.
The majority noted that he had failed to notify clients and courts of his disbarment, but found the lapse attributable his active alcoholism at the time. The majority also concluded that he had made sufficient restitution to his victim and was not obligated to pay them interest.
The majority rejected the State Bar's contention that the petitioner was obligated to seek out other clients to explore possible restitution obligations. The majority felt that such contacts from the distant past might be unwelcome.
Presiding Justice Carlson wrote the dissent:
I do not think [the petitioner] is ready for this honor.
The dissent gives petitioner credit for his recovery but notes significant questions about the suffiency of restitution and past debts. The dissent would not preclude eventual granting of the petition and sets out a "Roadmap to Readmission."
Two justices joined the dissent.
Readmission is conditioned on passing the Mississippi bar examination and the MPRE. (Mike Frisch)