Saturday, March 31, 2012

The Inner Experience of Being a Lawyer

Posted by Jeff Lipshaw

I am working on an article that considers the relationship of information, like that disclosed in a securities offering, to the internal judgment of the investor who has to make a decision whether to invest based on that information.  The empirical studies suggest that more information is better on a macro-basis, when all of the actors are black-box monads, and we get to think of them on the whole as rational (hence, Richard Posner's memorable dictum that in rational actor analysis the internal experience of the actor is irrelevant - "it would not be a solecism to speak of a rational frog").  On the other hand, the overwhelming thrust of behavioral economics is that human beings manage, on an individual micro basis, to have a far less rational connection between the available objective information and the individual's judgment.  Nevertheless, even behavioral economics takes an objective, external analytic stance; it's proposing a theory for putatively non-rational action, not providing a protocol for someone actually making a decision.  In other words, does getting a lot of information about my tendency to use heuristics and biases have an impact in reducing the impact of heuristics and biases in my decision-making?  I'm a long-term skeptic on that one, and the fact that almost every book I've seen on behavioral economics and judgment in law or business ignores or punts on this issue (see Bazerman, Brest, etc.) tends to confirm my skepticism.

It's therefore not surprising to me that legal education, with its emphasis on objective after-the-fact judgmentalism, just eats up prediction seeking social science, whether of the rational actor or more nuanced variety.  Why?  Because that's exactly what lawyers' lawyers, whether transactional or litigative, are supposed to do:  predict the legal effect of actions in terms of their likelihood of being deemed, after-the-fact, the proximate cause of something bad or good.

Imagine my delight, then, in getting the January, 2012 issue of Entrepreneurship Theory and Practice (Vol. 36, No. 1, a perk of my membership, thanks to Tony Luppino at UMKC, in the United States Association for Small Business and Entrepreneurship) devoted to "The Heart of Entrepreneurship."  The second article, "Framing the Entrepreneurial Experience," by Michael H. Morris, Donald F. Kuratko, Minet Schindehutte, and April J. Spivack, highlights the affective aspects of entrepreneurship, not from the standpoint of an objective analysis of the entrepreneur, but from the standpoint of the lived experience of the entrepreneur "as actor in an unscripted temporal performance who continually encounters novelty."  The authors suggest,

If entrepreneurship is fundamentally experiential, we know surprisingly little about the nature of the experience.  What is it like to be "in the moment" as a venture takes form? ... As a lived experience, we highlight the critical role played by idiosyncratic events are frequently uncontrollable and unpredictable.  Lichtenstein et al. (2007) make it clear that such events are at the essence of entrepreneurship, and give rise to patterns and punctuating moments.

My suspicion for a long time has been that lawyers engage in a form of attribution error when encountering dealmakers, entrepreneurs, and business people generally.   If you look at your business client as a black-box monad, you are likely to attribute your own affective experience (or lack thereof) without considering that the inner experience and circumstances of the client is significantly different than your own.  In other words, my job as a lawyer is to explain and blame (in retrospect) the causes of the uncontrollable and unpredictable, or to use some legal science before the fact to place myself prospectively in the after-the-fact position so as to avoid the circumstance in which my client or I might be the subject of that blame.  (In the venture capital term sheet, that becomes the wrangling over the representations and warranties and the anti-dilution clause.)  And when my client is wholly uninterested in any of that, it must be because she is just weird, flighty, unorganized, naive, ethereal, or whatever.

Oh, and it's not just lawyers and entrepreneurs that have this attribution problem.  I'm pretty sure that the Wall Street lawyers we used to hire to help on our deals scratched their heads and wondered why I, as the general counsel of the company, had no apparent interest in the interstices of the environmental representation (as opposed, say, to the financial statement representation or the post closing price adjustment mechanism), or why in the critical moments just before we were to sign and wire funds, I would politely blow off what might otherwise be reasonably considered a helpful clarification of some of the wording.

Obviously, moot courts, trial teams, mock negotiations (like Karl Okamato's Transactional Meets), and clinical experiences offer the chance for students to live the inner experience of a real lawyer. The bigger challenge is learning to bridge the objective-subjective divide when dealing with others. Bill's words from a previous post are more profound perhaps even than Bill thought:

For those of us who accept change as the one bankable constant, change is less a threat than an opportunity. Over the next five to ten years, maybe slightly longer, a more sustainable Post-Langdellian business model for legal education will emerge. This new model will likely place a higher emphasis on communication, collaboration, and problem solving, which are the skills needed to price, allocate, manage, or engineer around legal risk or legal problems. Winning a case in court is only a sliver of the calculus. Technology and new pedagogy will pack a much better education into three years. At least some scholarship will be highly applied. And at the best schools, teaching, service and scholarship will merge, and the most valuable faculty will be less ivory tower. It will be an exciting place for students, professors and alumni.

Maybe it takes a law school pedagogy that is somewhat less rational, analytical, reductive, and behavioral, and somewhat more personal, emotional, affective, and experiential.

[Cross-posted at Legal Whiteboard.]

March 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, March 30, 2012

One Man's Crusade Leads To Public Reprimand

A Maine attorney who was admitted in 1977 was sanctioned with a public reprimand by the Maine Supreme Judicial Court. It is not your every day bar discipline case.

The attorney represented a client in a partition matter. A settlement was achieved but the attorney's client failed to honor the terms. The attorney withdrew from the representation.

The client then made a threat to put a bullet in the head of the opposing party. The attorney reported the threat to her counsel and became convinced his former client was a serial killer.

The Court:

Approximately two months after Mr. Cote’s withdrawal from the case, Mr. Holland shot and killed Derek and Gage Greene. The shooting took place on June 30, 2009, and the grand jury returned an indictment on July 10, 2009. Mr. Holland was subsequently convicted of the murders and is serving a double life sentence.

From that time forward Mr. Cote engaged in an extensive investigation of Mr. Holland’s past. He is convinced Mr. Holland is a serial killer responsible for many deaths and in at least one case another individual was wrongly convicted of the crime. In addition, he represented Tammy Cole, the mother of the Greene brothers, in a wrongful death action against Mr. Holland. Mr. Cote acknowledges he obtained confidential information from Rory Holland. He knew what assets Mr. Holland owned and which were subject to encumbrances. Having dealt with Mr. Holland’s extreme behavior in the partition action, Mr. Cote was aware of Mr. Holland’s tendency toward violence and the manner in which he handled litigation. Mr. Cote embarked on a one-man crusade studying various missing persons records and attempting to connect Mr. Holland to other crimes. He also received access through Susan Varney to a home she had shared with Mr. Holland and obtained over sixty videotapes and a computer from that home. Mr. Cote then turned over the videotapes and computer to the police investigating the murders. Mr. Holland filed a motion to suppress regarding the tapes and claims he did not testify at the trial as a result of the ruling on the motion.

This Court finds that Mr. Cote has violated Rules 1.9 and 8.4(d) of the Maine Rules of Professional Conduct because he had confidential information from his representation of Mr. Holland which he used against Mr. Holland in the subsequent action.

The client was convicted of two unrelated murders and is serving a life sentence.

Boston.com has this story about the client. (Mike Frisch)

March 30, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Both Prosecutor And Defense Counsel Suspended

In an unusual twofer, the Wisconsin Supreme Court has imposed professional discipline on both the prosecutor and defense counsel in a criminal case. The underlying case involved charges of vehicular negligent homocide.

The prosecutor was suspended for 30 days, primarily for making false representation about the disclosure of accident scene photographs. The referee had propsed a public reprimand.

It being Wisconsin, there was some expressed disagreement among the justices.

Chief Justice Abrahamson concurred and commented on Justice Prosser's concurrence/dissent;

The lawyer discipline system, including the work of the Office of Lawyer Regulation (OLR), the Preliminary Review Committee, the referees, and this court, like any system, has its strengths and also its opportunities for improvement.  Reasonable people can and do disagree about the virtues, the snags, and the changes needed.

But I am disappointed when a justice of this court unfairly and wrongly undermines the lawyer discipline system, a decision of this court, and the actions of the justices joining the per curiam opinion with unwarranted, unfounded accusations. I therefore write in response to Justice Prosser's concurrence/dissent.   

The concurrence/dissent charges that the "handling of [the Humphrey] case has been so irregular that it is unfair to the attorney and seriously undermines confidence in the lawyer regulation system, especially the actions of this court."  See concurrence/dissent, ¶¶132, 159.

The concurrence/dissent does not and cannot back up this harsh charge.  

In spite of the storm and fury and nasty insinuations about the court's actions, it turns out that the concurrence/dissent disagrees only with the imposition of a 30-day suspension.  The concurrence/dissent joins the opinion of the court in concluding that Attorney Humphrey violated the Rules of Professional Conduct twice, by misrepresentations to the trial court.

Justice Prosser, in part:

When [prosecuting] Attorney Humphrey's case was argued on April 10, 2008, Justice Annette Kingsland Ziegler did not participate.  She did not participate because [defense] Attorney Sommers had been a candidate for the supreme court against Justice Ziegler in 2007.  Justice Ziegler apparently decided that if she should not sit in the Sommers case, she should not sit in the Humphrey case either.  This reduced the size of Humphrey's court from seven to six.

Justice Louis Butler did sit in the Humphrey case, but when this court decided to hold the release of any decision on Attorney Humphrey until reaching a decision on Attorney Sommers, it effectively knocked the departing Justice Butler off the case and reduced the size of the court to five.

The decision to hold Attorney Humphrey's case in abeyance had another unfortunate effect: Attorney Humphrey was left twisting in the wind for three and one-half years while this court struggled to resolve the intractable Sommers matter.

Attorney Humphrey played no part in this delay.  He simply paid the price for it.  The court should have separated the two cases and granted Humphrey's motion for reargument.

Beyond the unseemly delay and its adverse effect on Attorney Humphrey, this court has created the spectacle of invalidating one of the three counts against Attorney Humphrey but nonetheless increasing his discipline from a proposed public reprimand to an unprecedented 30-day suspension...

The defense attorney was also suspended for 30 days in a unanimous opinion, with Justices Ziegler and Gableman not participating. The opinion in that case discusses the complications caused by the separate hearings held in the two matters.

The defense counsel made allegations against the prosecutor, the trial judge, the Office of Lawyer Regulation and the referee appointed to hear the disciplinary case. The primary misconduct involved an in-court tirade and accusations against the judge:

Further context for these remarks [quoted in the opinion] was obtained at the 2009 evidentiary hearing before the referee.  Judge Pekowsky testified that throughout [defense] Attorney Sommers' statements, Attorney Sommers was not looking to Judge Pekowsky but was speaking to "his" (i.e. Attorney Sommers') audience in the courtroom and that the entire courtroom was "frozen" during Attorney Sommers' tirade.  Judge Pekowsky testified that the deputies in the courtroom kept getting closer to Attorney Sommers and he was afraid they would confront Attorney Sommers and cause a fight.  Judge Pekowsky recalled that at one point during the May 24, 2004 hearing Attorney Sommers was so loud——louder than anyone Judge Pekowsky had ever heard speak "in any courtroom at any time before"——up to nine bailiffs rushed into the judge's courtroom "because they were concerned there was a huge fracas going on down here and somebody was going to get hurt and they had to intervene."  Judge Pekowsky estimated that "most of the second floor of the City County Building" was disrupted by Attorney Sommers' behavior.

There also was a violation of the rule governing trial publicity;

Attorney Sommers has every right to publicly criticize the district attorney's office.  However, engaging in pretrial publicity consisting of speculation, unproven allegations, and release of inadmissible evidence in a manner likely to prejudice the integrity of the judicial process may violate SCR 20:3.6. We conclude that the record supports the referee's conclusion that Attorney Sommers' actions during the Raisbeck matter violated [the Rule]...

The client was acquitted. (Mike Frisch)

March 30, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2012

Censure Proposed For Brady Violation By AUSA

A District of Columbia Hearing Committee has proposed a public censure of a former Assistant United States Attorney for failing to disclose that a witness who made an in-court identification of the defendant had earlier stated that he could not identify the perpetrator.

The hearing committee found a Rule 3.8(e) violation.

The opinion can be accessed at this link by inserting the name Andrew J. Kline. (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Stripped Of License

An attorney who owned a failing restaurant business decided to salvage the investment by turning it into a strip club named the Coyote Show Club. He solicited financial support from a client that he represented in a divorce and support matter. The client made a $25,000 loan.

The Pennsylvania Supreme Court concluded that the attorney violated ethical rules governing business transactions with a client and conflicts of interest as well as dishonesty and ordered that the attorney be disbarred. 

The Office of Disciplinary Counsel proved that the attorney had failed to disclose a number of relevant issues including the "staggering amount of unpaid debt" of the venture to the client and had never told the client that the investment was in a strip club.

The attorney called several witnesses to attempt to prove that the client knew about the strip club. A witness claimed that the client was present when the witness took his grandson to Coyote's for his 21st birthday. The evidence was rejected as incredible.

The attorney had also engaged in misconduct in an unrelated matter. The attorney neglected the client's matter and made false representations after the statute of limitations had run. as a result, the client testified that "her opinion of lawyers had changed for the worse."

The Attorney Disciplinary Board had recommended disbarment in light of the serious nature of the violations and the attorney's arrogance and lack of remorse. (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Absolute Quasi- Judicial Immunity For Conservators

Answering a question certified from the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court has held that a conservator appointed by the probate court is entitled to absolute quasi-judicial immunity only when executing a probate court order or where the actions are ratified by the court.

 Further, absolute quasi-judicial immunity "does not extend to attorneys appointed to represent respondents in conservatorship proceedings or conservatees." (Mike Frisch)

March 29, 2012 | Permalink | Comments (0) | TrackBack (0)

Judge Must Disclose But Not Necessarily Recuse

A recent opinion from the Florida Judicial Ethics Advisory Committee:

ISSUES

Whether recusal is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?

ANSWER: No, unless the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter.

Whether disclosure is required when the inquiring judge was an attorney representing the adverse party of an attorney/litigant over seven (7) years ago?

ANSWER: Yes.

FACTS

Approximately seven (7) years ago, prior to becoming a judge, the Inquiring Judge represented a client in a dissolution of marriage action. The adverse party was the client’s wife who was and currently still is a practicing attorney. The parties to the dissolution were adverse to each other on most every issue. The wife was represented by counsel as well. The Inquiring Judge represented this client for a little over a year before being withdrawn by court order from the case. The Inquiring Judge asks if recusal and/or disclosure are necessary when the attorney/former litigant later appears as an attorney of record in an unrelated case in front of that judge.

The rationale:

This opinion is limited to the question presented which is whether the Inquiring Judge is required on the judge’s own initiative to recuse from the matter. Based on the facts set forth by the inquiring judge, no motion to disqualify has been filed, and therefore the Committee has not been presented with the content of any such motion, nor would the Committee issue an opinion determining the legal sufficiency of any such motion.

Rather, this inquiry invokes Canon 3E(1) of the Code of Judicial Conduct which provides that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Although the prior opinions of the Committee on this subject do not involve facts related to this particular set of circumstances, our opinions suggest that recusal would not be mandated or required in this setting. The determination of whether the judge’s impartiality might reasonably be questioned depends on 1) the nature and extent of the relationship between the Inquiring Judge and the former client who is the ex-spouse of the practicing attorney, 2) whether there was any financial or monetary significance to the judge, 3) to what extent the action was contested, 4) whether any contempt proceedings and/or sanctions were initiated by or against this practicing attorney/litigant during the contested dissolution action, and 5) whether the judge was privy to information about the attorney/former spouse of the judge’s client that would affect the judge’s ability to be fair and impartial in the proceeding currently pending before the judge. Unless the Inquiring Judge feels that the previous contested litigation has affected the judge’s ability to fairly sit in judgment on the current unrelated civil matter, then recusal is not required. If, however, for example, the judge acquired information that causes the judge not to be able to give credence to an attorney in a case before the judge, then the judge should recuse.

But the inquiry does not end there. The Committee believes the Inquiring Judge should disclose to the parties and lawyers the past representation on the contested dissolution of marriage, and that the attorney was the adverse litigant many years earlier. The Commentary to Canon 3E of the Code of Judicial Conduct discusses the circumstances under which disclosure is appropriate: “a judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys the information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.”

(Mike Frisch)

March 29, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Billing Misconduct Draws Two Year Suspension

The New York Appellate Division for the Third Judicial Department has imposed a two-year suspension of an attorney who engaged in billing misconduct.

The attorney was an associate at a law firm. He prepared and submitted bills for work that he had not done. The bills were sent out to clients.

He presented mitigating evidence of "health issues and family problems." (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Financial Advice Is Business Transaction

The Florida Supreme Court has disbarred an attorney for "egregious misconduct" in his dealings with an elderly (and now deceased) client.

The attorney also was a financial advisor. He arranged for the sale of annuities to the client prior to her death and was named as personal representative and trustee in an instrument executed weeks before the client died.

The court found that the attorney had a significant personal interest and engaged in a conflict of interest.

The court also rejected the attorney's claim that Rule 1.8(a), the business transaction rule, did not apply to the financial planning services he provided to the client. The court further rejected the suggestion that the attorney need be a party to a transaction for the Rule to apply. (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Let My Client Go (Without An Ankle Monitor)

The Illinois Administrator has filed a four-count complaint alleging misconduct on the part of an attorney.

One count involves the following alleged false statement to a court:

...Respondent agreed to represent [client W.], who had been charged with Aggravated Battery with a Deadly Weapon, Unlawful Possession of Weapons by a Felon and Domestic Battery, in the Circuit Court, Adams County, Illinois...

As a condition of bond, W. was required to stay 1,000 feet from the victim and her residence and wear a GPS surveillance ankle monitor.

...Respondent appeared with W. in case no. 11 CF 589, before the Honorable Robert K. Adrian. Assistant State’s Attorney Jennifer Cifaldi ("Cifaldi") appeared on behalf of State. Cifaldi was not usually assigned to Judge Adrian’s Misdemeanor and Felony docket, but she was filling in for another Assistant State’s Attorney who was out of the office that day.

After case no. 11 CF 589 was called, Respondent made an oral motion to have the GPS monitor removed from W.’s ankle.

Respondent represented to the Court and Cifaldi that he had spoken to Adams County First Assistant State’s Attorney Gary Farha ("Farha") and that Farha did not oppose the removal of the ankle monitor.

Respondent’s statements to the Court that he had spoken to Farha about the removal of W.’s ankle monitor and that Farha did not oppose the removal of the monitor, were false.

Respondent knew that his statements...were false.

The attorney was admitted in 1977. (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Attorney To Nurse

The Ohio Supreme Court has imposed a one-year suspension of a sole practicioner who also was employed as a nurse.

The attorney working primarily as a nurse and not taking on new clients, but kept her trust account open. She deposited her nursing paychecks into the trust account and used the money to pay personal expenses. 

A series of overdrafts brought her to the attention of the Bar. The misconduct was exacerbated by her non-participation in the disciplinary proceedings.

The court held that the use of the trust account to pay personal expenses involved commingling. (Mike Frisch)

March 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2012

Paying For Nothing

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio has suspended the law license of [a] Medina attorney...for two years, with the final six months of that term stayed on conditions, for professional misconduct in his dealings with four different clients from whom he accepted fee advances but subsequently failed to perform the promised legal services.

In a 7-0 per curiam decision announced today, the court adopted findings by the Board of Commissioners on Grievances & Discipline that [he] failed to maintain clients’ unearned fee advances in a dedicated trust account separate from his law office operating account; failed to exercise reasonable diligence in representing his clients; failed to respond to his clients’ requests for information or keep them advised about the status of their cases; dismissed one client’s case without her knowledge or consent; missed the statute of limitations for filing suit on behalf of another client; and failed to answer a complaint against another client’s company, resulting in a $31,000 default judgment against the client.

As conditions for future reinstatement of his law license, the court required that [he] refrain from any further misconduct, submit evidence that he has completed a mental health evaluation, follow all resulting treatment recommendations, and provide proof to a reasonable degree of medical certainty that he is competent to return to the ethical and professional practice of law.

The opinion is linked here. (MIke Frisch)

March 28, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Brain Cyst Does Not Mitigate Intentional Misappropriation

The Utah Supreme Court has disbarred an attorney who "used his client's settlement money to cover his firm's operational expenses for four months."

The court found that the attorney had engaged in intentional misappropriation.

The mitigation evidence related to a cyst on the attorney's brain:

Even if the seeds of [the attorney's] brain cyst had been planted before childhood, there is simply no evidence before us that the cyst existed or significantly impaired [his] cognitive abilities when he took on [the client's] case. There is...no evidence to suggest that [his] impairment would have prevented or did prevent him from developing the requisite intent to misappropriate [the client's] funds for his own benefit.

The court indicated that a future case involving health-related issues might rise to the level of "truly compelling mitigation."

Here, the attorney's "long history of client trust funds issues and other bar discipline" and the "vague speculation" of his expert's testimony failed to establish a basis to avoid disbarment. (Mike Frisch)

March 28, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

The Social Network

A justice of the Massachusetts Supreme Judicial Court has disbarred an attorney convicted in California for distributing lewd material to a minor. The attorney failed to report the conviction to Bar Counsel.

The criminal conduct involved "lewd communications via a live video feed and social networking site with a person known by the Respondent to be fifteen years old."

Among the terms of the criminal probation is a requirement that he "give his probation officer all computer passwords used by him in all e-mail and social networking sites."

Napa Valley Register reports that the attorney was working as a sociology teacher when the conduct took place:

Napa police stated in court documents that the victim, a 15-year-old Napa boy, met [the attorney] online in April 2009 onStickam.com, a live video feed and social network site.

The victim had his age posted on his profile, the court documents show.

According to police, the suspect e-mailed photos of a naked male and asked the victim to “‘get naked’ for him via the live feed onStickam.com.’” They also talked by phone, police said.

 (Mike Frisch)

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

Attorney Engaged in Criminal Touching Of Client During Re-Enactment Of Accident

The New York Appellate Division for the First Judicial Department has imposed a nine-month suspension for the following criminal conduct:

In March 2007, respondent met with a client he was to represent in a personal injury action and requested that she re-enact the circumstances under which her accident occurred. During the demonstration, respondent inserted his hand beneath the client's clothing and touched her breast, and moved her hand over his groin area (outside of his trousers) in a sexual manner, without the client's permission or consent. Respondent then told the client not to tell anyone.

In June 2007, respondent was charged in a misdemeanor complaint with one count of forcible touching in violation of Penal Law § 130.52 and two counts of sexual abuse in the third degree in violation of Penal Law § 130.55. On September 22, 2008, he pled guilty to disorderly conduct (Penal Law § 240.20[1]), a violation, and was sentenced to a one-year conditional discharge.

The court noted:

Here, respondent did more than make offensive or suggestive comments. While consulting with a client, he engaged in non-consensual physical contact, groping the woman against her will and placing her hand on his groin for sexual pleasure. By this conduct, respondent failed to act in accordance with the high standards imposed upon members of the bar and his misconduct reflects adversely on his fitness as a lawyer and upon the legal profession. As the Referee found, while a mitigating factor, respondent did not establish that his depression caused his sexually abusive conduct toward his client (see Matter of Alongi, 276 AD2d 175, 177 [2000]). Although there have been instances in which this Court has censured attorneys for sexually related misconduct, such matters are inapposite because the abuse in those cases was not directed at a client (see e.g. Matter of Najdovski, 18 AD3d 27 [2005] [attorney censured for, inter alia, misdemeanor conviction of sexual abuse in the third degree for having made sexual advances to a woman who he had dinner and drinks with after she applied for a job in his firm]; Matter of Sims, 36 AD3d 304 [2006][respondent, convicted in New Jersey of violation of harassment for pinching secretary's buttocks and then censured in New Jersey disciplinary proceeding, censured by this Court]).

The hearing panel had proposed a three-month suspension. (Mike Frisch)

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

Negligent But Not Unethical

An attorney who improperly retained fees in a discrimination lawsuit settlement, failed to communicate with his client and failed to participate in the ensuing bar proceedings has been disbarred by the Maryland Court of Appeals.

The court left undisturbed the hearing judge's conclusion that the failure to ensure that the client's name was on the settlement check violated the duty of competence. As a result, the settlement proceeds were seized by the government to satisfy a pre-existing obligation of the attorney. The hearing judge believed that having the check in both the names of attorney and client was "standard practice." The failure to do so was negligent but not incompetent within the meaning of Rule 1.1.

The client "never received a dime." (Mike Frisch)

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

Affair Not Privileged

The Tennessee Supreme Court has imposed a one-year suspension of an attorney who represented a divorce client with whom he was having an affair:

[He] failed to adequately advise the client of the conflict or obtain a waiver of the conflict. [He] moved to quash a subpoena for text messages claiming attorney-client privilege, although that privilege did not apply. [He] also forged a client's signature to a document, notarized the signature and submitted the document to the Court. When discovered, [he] submitted an amended document but misrepresented to the Court that the only change was the corrected signature.

He must be evaluated by the lawyers assistance program and comply with all recommendations as a condition of reinstatement. (Mike Frisch)

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

Monday, March 26, 2012

Disbarment Recommended For Former Judge

The Louisiana Attorney Disciplinary Board has recommended the disbarment of a former disrtict court judge caught on tape in the course of an FBI investigation into the activities of a fellow judge.

The judge was assigned a rear end collision case where the plaintiff had claimed dental injuries. The claim was, to put it charitably, quite weak. The other judge corruptly persuaded her to enter a plaintiff's verdict as a favor to the plaintiff's attorney, who was a political supporter.

NOLA.com had this story on a hearing panel recommendation for an 18 month suspension:

Supreme Court justices removed Benge from the bench in November 2009 in finding she ruled favorably for plaintiff Philip Demma after a 2001 trial because of her personal relationships instead of the evidence. Demma alleged he cracked a tooth in a car wreck in Metairie in 1998, and Benge inherited the case when elected judge in May 2001.

Following the November 2001 trial, Benge confided in a fellow judge, Ronald Bodenheimer, her view that Demma's case was bogus and that she was leaning toward awarding him nothing. However, she expressed an affinity for Demma's attorney, who was a political supporter, and Bodenheimer urged her to award Demma something, saying he'd "be there" for her. Despite saying she would "zero" the case, Benge later awarded Demma $4,275.

The FBI, which was eavesdropping on Bodenheimer's phone calls as part of the "Wrinkled Robe" investigation of the Jefferson Parish Courthouse, recorded Benge's discussion. She was never charged with a crime, but federal authorities alerted the state's Judiciary Commission, leading to her being kicked off the bench. Bodenheimer later admitted to conspiring with Demma to influence Benge, but he was sent to prison for unrelated corrupt actions.

The hearing committee, whose members includes lawyers and a member of the public, found Benge ruled inappropriately in the Demma case but characterized her ruling as a compromise: She found that Demma cracked his tooth during the wreck, but she awarded him little money. The committee called it a "compromise," and in a split decision voted for the 18-month suspension.

Benge "has lost her position as a judge and her good name; she voluntarily surrendered her law license," public committee member John Uhl wrote in a concurring opinion. "How much more pain and suffering must (Benge) endure? What she has suffered is enough; it is time for mercy."

This post on Tulanelink.com attacks the case against the former judge. (Mike Frisch) 

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

Phobic Avoidance

The New Jersey Supreme Court imposed a three-year suspension with conditions in a matter involving an attorney whose trust account mismanagement led to a series of misappropriations.

The attorney had a record of prior discipline that included a 1988 private reprimand for a breach of confidentiality, a six-month suspension for negligent misappropriation and dishonesty in 1994 and a three-month suspension in 2001 for a false certification to opposing counsel regarding his services.

The attorney produced the testimony of a expert to the effect that his prior discipline had caused him to suffer from a "phobic avoidance" of his trust acount responsibilities.

The attorney's aggressive attacks on the hearing judges delayed the proceedings  and was considered an aggravating factor. The Office of Attorney Ethics called the attacks "wholly baseless" and "not simply lacking in civility, [but] unprecedented in their mean-spiritedness." eventually, the attorney entered into a disciplinary stipulation.

When trust account phobia becomes a mitigating factor, we can give up any pretense that self-regulation works.  (Mike Frisch)

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

Getting Involved In Ex-Wife's Litigation Leads To Reprimand

The Louisiana Attorney Disciplinary Board has imposed a public reprimand of an attorney for professional misconduct in connection with his wife's legal dispute with her ex-husband. A hearing committee had found no ethical violations.

The complainant in the bar case was the ex-husband.

The misconduct involved a draft proposed interim joint custody order that the attorney sent to his wife's counsel. The draft contained several false statements of material fact.The wife's counsel did not review the proposed order. Rather, he forwarded to the court without the false assertions being caught. The order got signed with the attorney's misstatements. It was vacated when the parties realized what had occured.

After the order was signed, the attorney had sought to enforce its terms and sent this communication to the ex-husband's lawyer:

Just to make sure [your client] knows the restrictions placed on his behavior, make sure he doesn't show up at my house, and make sure he doesn't make a scene. I suppose, if you are too chicken-shit to tell him yourself, I can tell him.

(Mike Frisch)

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