April 6, 2012
Former U.S. Attorney Suspension Explained
The Alaska Supreme Court has published its opinion explaining its reasons for imposing a 25 month suspension of a former United States Attorney for Alaska last year.
The attorney engaged in a conflict of interest and related misconduct in litigation against his former client, a doctor. He became friendly with the doctor's sister. He then represented the sister in litigation over a family trust in which the doctor was an opposing party.
The attorney made claims of improper conduct against his former client as well as other attorneys in the litigation. He called his former client "satanic." His allegations were found to have violated Rule 3.1 (meritorious claims).
The court found the former representation was substantially related to the family trust case. The court also set out in some detail its concerns about the attorney's mental health based on his accusations against the former client and opposing counsel..
The attorney had filed a pleading seeking that the Assistant Bar Counsel resign, that Special Bar Counsel notift his insurance carrier of his "prosecutorial incompetence," and that the Bar's counsel attend an annual seminar on abuse.
JuneauEmpire.com had this report of the court's suspension ruling last year:
Shea is a former U.S. Attorney for Alaska who served in the early 1990s. Later, when Sarah Palin was governor, he helped draft ethics reform recommendations for her administration.
Shea told the AP he intended to practice law again. His suspension begins June 17 .
Winding Down The Kilpatrick Bar Cases
A Michigan hearing panel has imposed a 90 day suspension in the last of the series of five bar discipline cases arising out of the Kwame Kilpatrick litigation.
The attorney made false statements in connection with the settlement of the case. In imposing discipline, the hearing panel noted the pressure of the attorney's employment, the absence of prior discipline, and concluded that future misconduct was highly unlikely.
The panel gave little mitigating weight to the pressure of her employment as well as to the attorney's effort ten weeks later (in a letter) to remediate the false statements. The city law department where the attorney was employed was described as "akin to a 'triage ward.' "
The report of misconduct describes the attorney's involvement in the litigation as an Assistant Corporation Counsel.
The hearing panel rejected the Attorney Grievance Administrator's call for more severe discipline.
It's never over until it's over-- the parties may appeal to the Attorney Discipline Board. (Mike Frisch)
More On No Friends For Judges
The Massachusetts Committee on Judical Ethics issued an opinion in December 2011 on judges and Facebook.
The Code does not prohibit judges from joining social networking sites, thus you may continue to be a member of Facebook, taking care to conform your activities with the Code. A judge's "friending" attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge. Therefore, the Code does not permit you to "friend" any attorney who may appear before you, The pervasiveness of social media in today's society makes this situation one which requires a judge to "accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen." Commentary to Section 2A.
The Iowa Supreme Court has imposed a thirty day suspension of an attorney who had closed his practice in May 2010.
The attorney accepted a non-refundable $2,500 retainer to represent a client on state criminal charges. The state charges were dismissed when federal charges were brought, which the attorney did not handle. He nonetheless removed the full fee from his trust account and refused to refund any portion.
The court found that the fee was unreasonable and that its removal from the trust account violated ethical rules.
Further, the attorney was "uncooperative and unapologetic." He '[a]lmost defiantly, but without support...maintained that the fee was not unreasonable."
The title is an homage to my friend and erstwhile colleague Ross Dicker's favorite lawyer joke: what is the difference between a rooster and a lawyer? (Mike Frisch)
The Indiana Supreme Court has, in separate orders, found two attorneys in contempt of court for continuing to practice law after suspension of their licenses.
In one matter, the court found that the suspended attorney had not only continued to practice but accepted a new client and retainer. The court concluded that he had "continued to practice unabated in multiple cases in heedless disregard" of the court's order.
He was fined $2,500 and ordered to disgorge a $500 fee. If he fails to pay, he goes to jail for thirty days.
The other matter involved a post-suspension letter sent from Indiana to a couple in Illinois that contained legal advice. The attorney also had been suspended in Illinois but claimed to be unaware of that fact.
The court found that the advice in the letter constituted the practice of law in Indiana and ordered a $250 fine. The conduct was an isolated instance that took place in 2008. (Mike Frisch)
April 5, 2012
Sanction: Pro Bono
The Rhode Island Supreme Court has ordered an attorney to devote 75 hours of community or pro bono community service as a disciplinary sanction.
The attorney had represented the client in a medical malpractice matter. He did not reply to discovery requests made on behalf of the doctor. The case was dismissed as to that defendant and the attorney failed to so advise the client. After he failed to respond to the hospital's discovery, he agreed to dismiss against that defendant (without his client's knowledge or consent) and the litigation ended.
The court held that an order of community and/or pro bono service served the purposes of professional discipline. (Mike Frisch)
The New York Appellate Division for the Third Judicial Department has revoked the admission of an attorney granted in 2008.
The revocation was a result of findings that the attorney made a series of materially false statements and omissions on her application for admission. The attorney submitted an employment affidavit for a judicial clerkship that was completed by her husband, who was a clerk in the chambers of another judge of the same court. The referee concluded that this was an effort to suppress information.
The referee also found that the attorney provided misleading explanations for the termination of two prior employments. She also falsely answered "no" to three questions concerning her involvement in litigation.
We take this opportunity to once again reiterate that candor and the voluntary revelation of negative information by an applicant are the cornerstones upon which is built the character and fitness investigation of an applicant for admission to the New York State bar.
Here, the attorney's application "fell woefully short" of the above requirement. The court indicated that she could seek to renew the application. (Mike Frisch)
The Oncoming Locomotive of Interdisciplinarity
Posted by Jeff Lipshaw
Bill and I have already posted separately (here and here) about our mutual sense that the traditional disciplinary walls of the profession are crumbling, not just in terms of regulatory aspects like multi-disciplinary practices, but in terms of the integration of legal expertise with other aspects of enterprise, policy, mediation, and the like. (Nothing like a blog to flog your own work - blog flog? - but I've written about this in The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity.)
In that continuing vein, the Wall Street Journal has a story this morning about school administrators and corporate recruiters rethinking the value of an undergraduate business major. "The biggest complaint: The undergraduate degrees focus too much on the nuts and bolts of finance and accounting and don't develop enough critical thinking and problem-solving skills through long essays, in-class debates and other hallmarks of liberal education." I want to make it clear I understand this is about undergraduate education, and not a professional school in which students are investing (or leveraging with debt) another $100,000 to $200,000. But it's the directional thrust about disciplines that I think we need to take very, very seriously. Clearly we have an obligation for teaching professional depth. But the following statements, I'm assuming well-reported even if anecdotal, say something about the need for professional breadth:
- "Companies say they need flexible thinkers with innovative ideas and a broad knowledge base derived from multiple disciplines."
- "William Sullivan ... says the divide between business and liberal-arts offerings, however unintentional, has hurt students, who see their business instruction as 'isolated' from other disciplines."
- "[B]usiness schools ... are tweaking their undergraduate business curricula in an attempt to better integrate lessons on history, ethics and writing into courses about finance and marketing."
- "Doug Guthrie, dean of the George Washington University School of Business, is planning to draw on expertise in the university's psychology and philosophy departments to teach business ethics and he'll seek help from the engineering problem to address sustainability."
- "Firms are looking for talents, they're not looking for content knowledge, per se."
If there's general consensus that the third year of law school needs overhauling (and maybe the second year as well), and if we are thinking about all the things that people with law degrees might do other than the traditional activity "before the bar," this is food for thought in the design of all those skills courses, clinics, simulations, and practica.
[Cross-posted at The Legal Whiteboard.]
Hand Slam Leads To Bench Slap
The Delaware Supreme Court reversed a conviction for attempted robbery in the first degree, holding that the prosecutor's closing rebuttal argument improperly vouched for the State's case.
The opinion describes a rather inept alleged thief. He went into a Super Fresh supermarket and asked to exchange ten pennies for a dime. When the clerk opened the register, he demanded money and reached in the open drawer. The clerk "slammed the drawer shut, catching [the defendant's] fingers in the crack." He then reached into his waistband and the clerk yelled, causing him to run out the door.
The police tracked him down with the aid of a Belgian shepherd. He was brought back to the supermarket, where he was identified in part by his red goatee.
The prosecutor argued that "The State of Delaware is bringing this charge because it is exactly what [the defendant] did."
The court found that the criminal case was a "close" one and that the prejudicial remark may have affected the outcome. (MIke Frisch)
When Time Ran Out
An attorney who neglected an appeal and tried to cover up by providing a false "stamped received" document to the client's wife was suspended for two years by the New York Appellate Division for the Second Judicial Department.
The court described the misconduct:
....Zoraida Arafet retained the respondent to prosecute a criminal appeal on behalf of her husband, Nasin Arafet. The Arafet family paid the respondent the sum of $7,500 in legal fees. In or about August 2006, the respondent met with Mrs. Arafet and provided her with a copy of a brief that he had purportedly filed in the Appellate Division, Third Department. The cover page of the brief contained a fraudulent receipt stamp from the Appellate Division, Third Department, which reflected that the brief had been received by the Clerk of that Court in or about August 2006. At the time that the respondent gave the aforesaid brief to Mrs. Arafet, he knew that the receipt stamp was fraudulent, as he had not perfected the appeal.
In mitigation, the respondent asks that the Court consider his state of the mind at the time, the stresses placed on him by his wife and family, the financial difficulties of starting up a new law practice, the long hours he was putting in working on document review projects in order to supplement his income, and the depression he experienced as a result of his stressful situation.
Although the respondent testified that he was depressed, he offered little other proof of his condition. The respondent met with a counselor for the first time in December 2010; however, the incident underlying the charges here occurred in August 2006. Claiming to be depressed, the respondent, nonetheless, was able to work, in effect, two jobs—his own cases and different document review projects. Based on this evidence, the Special Referee gave little credence to the respondent's explanation for his misconduct.
It is undisputed that the respondent intended to mislead his client into believing that he had perfected the appeal when he had not done so. Notwithstanding the fact that the respondent was merely trying to "buy time" in order to finish the brief, he engaged in deceitful conduct towards his client in a criminal matter.
April 4, 2012
Suspension For Shooting TV, Cars, Bathroom Mirror
The Oklahoma Supreme Court has suspended an attorney for two years and a day.
On January 30, 2009, [attorney] Conrady returned to Oklahoma following a three-week trip to the Middle East. Conrady was met at the Tulsa airport by his longtime girlfriend, Janice Pierce ("Pierce"), for a return trip to Okmulgee. During the drive home, Pierce informed Conrady she no longer wanted to continue their relationship. Pierce dropped Conrady off at his apartment; however, she refused to discuss the relationship any further. At some point Pierce also advised Conrady that she had begun dating a fellow Sunday school teacher at her church, Steve McCroskey ("McCroskey").
Over the next twenty-four hours, Conrady became increasingly despondent. He began consuming vodka and taking pain medication. Pierce ignored Conrady's repeated efforts to contact her during this period of time. On the evening of February 1, an intoxicated and emotionally charged Conrady armed himself with a .45 caliber semi-automatic handgun and drove to McCroskey's residence. Fortunately, prior to Conrady's arrival, McCroskey and Pierce had departed to return McCroskey's six-year-old daughter to her mother in Wilson, Oklahoma. Conrady arrived at the residence and forcibly entered the house, armed with the loaded pistol. After finding no one present, Conrady fired rounds throughout the home, including into a bathroom mirror, a television, and other personal items belonging to Pierce's boyfriend. One of the rounds pierced an interior wall and the projectile was discovered in a bedroom normally occupied by McCroskey's daughter. Another round penetrated the outside wall of the house and lodged in a neighbor's storm door. After exiting the home, Conrady discharged his firearm multiple times into Pierce and McCroskey's unoccupied vehicles. Conrady left the scene and returned to his home in downtown Okmulgee.
The attorney pled to felony charges as a result.
As to sanction:
There can be no doubt that Conrady's intentional discharge of multiple rounds from a high caliber firearm was reckless and potentially deadly. Yet, Conrady's assertion overlooks the actual and personal harm which resulted from the shooting. Both McCroskey and Pierce were forced to obtain protective orders and live their lives fearful of further aggression. McCloskey was required to temporarily suspend visits with his six-year-old daughter as a result of the shooting. The harm and threat of harm faced by these individuals was not a mere hypothetical, it was real and it was unnerving. The unlawful acts were also damaging to the legal profession as a whole. Conrady's actions brought embarrassment and discredit to himself and the entire profession... Additionally, we take special note of exhibits presented by the OBA during the administrative hearing, which included e-mails sent from Conrady to Pierce. In spite of his alleged psychotherapy and sobriety, Conrady delivered e-mails to Pierce in March and April of 2010 which were offensive and demeaning.
Weighing the mitigating evidence against the baseline discipline of disbarment, we hold Respondent, James Albert Conrady is hereby suspended from the practice of law for a period of two years and one day.
Justice Kauger specially concurred, expressing concern about the failure to follow procedures for interim suspension and the delay in the matter.
Justice Combs and Chief Justice Taylor dissented and would disbar. Justice Edmondson would defer a sanction determination until the attorney completes the obligations of his criminal sentence. (Mike Frisch)
Wisconsin Defers To Illinois
In bar discipline matters arising from criminal convictions involving former Seyfarth Shaw and Schiff Hardin attorneys, the Wisconsin Supreme Court imposed reciprocal discipline identical to that imposed in Illinois.
The court majority in both cases accepted stipulations of misconduct and relied on the deference shown in reciprocal discipline matters:
Although the conduct of Attorney Addison at issue here, like the conduct of Attorney Benjamin C. Butler, is both unprofessional and unseemly, and although we may have imposed a more severe level of discipline if the Office of Lawyer Regulation (OLR) had prosecuted this matter directly in the first instance rather than filing a reciprocal discipline complaint, given the standards in our rules that apply to reciprocal discipline situations, we impose the same 60-day suspension on Attorney Addison's license to practice law in Wisconsin that was imposed in Illinois.
It's Wisconsin. There are dissents from Justice Roggensack, who would apply Wisconsin standards and impose more severe discipline in both matters. Justice Crooks joined the dissents.
AmLawDaily had a report on the Illinois discipline. (Mike Frisch)
"Not An Intentional Ignorance"
The New Jersey Supreme Court has agreed with the recommendation of the Disciplinary Review Board and imposed a public censure for an attorney's negligent misappropriation of entrusted funds.
The attorney entered solo private practice in 1996. He previously had held non-attorney positions at AT&T. He never had supervision from a more senior attorney.
The attorney handled real estate transactions and kept earned fees in the trust account. The trust violations were found in a 2002 random audit.
The attorney fully cooperated and admitted that his record keeping was grossly deficient. Disciplinary charges were instituted in 2007 and are now just getting concluded.
The lengthy DRB report identifies the "vehemently contested" issue as whether the instances of misappropriation were intentional or negligent. The DRB found that the attorney had a good faith belief that he had earned the misappropriated funds. The Office of Attorney Ethics appealed and sought disbarment.
The court agreed with the DRB's negligence conclusion and found that attorney's failure to adhere to trust account requirements was "not an intentional ignorance that clouded a more nefarious intent." Further, no client had been harmed.
Judge Wefing would impose a short suspension and noted that it was the attorney's "great fortune" that no client was harmed. (Mike Frisch)
Spousal Support OK
A recent judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 7 - 2012
RE: The propriety of a Master-in-Equity participating in the campaign activities of his or her spouse.
An inquiry is made into the extent a Master-in-Equity can participate in the campaign activities of his/her spouse. The Master inquires as (1) whether the Master can appear in a family portrait to be used in campaign materials; (2) whether the Master can attend the spouse’s speeches or debates; and (3) whether the Master can attend the spouse’s election night party.
The Master has also been asked to speak to a local Republican Women’s Club to explain the role of a Master-in-Equity. The Master inquires as to whether accepting this invitation is proper.
A Master-in-Equity may appear in a family photo to be used in a spouse’s political campaign and attend a spouse’s election night party.
A Master-in-Equity may speak at a Republican Women’s Club on the role of the Master.
As to campaign events:
...the Master may attend debates or speeches of the spouse, and the election night party, as long as attendance is on the Master’s own time and the Master’s membership in the judiciary is not publicized or announced at such events. If the Master observes those measures, it would indicate that the Master is participating as a spouse, and would not constitute endorsement of a candidate for public office.
Avoiding Conflict (And Work)
The Pennsylvania Supreme Court has imposed a suspension of 30 months of an attorney who had submitted false billings for work not performed in numerous client matters while employed as an associate attorney at Cozen O'Connor, P.C.
The attorney also engaged in the unauthorized practice of law after his suspension for his failure to file his annual attorney registration statement. The court imposed the suspension nunc pro tunc to the date of the administrative suspension.
The report of the attorney's clinical psychologist is appended to the recommendation of the Disciplinary Board. The attorney was diagnosed as addiction to alcohol and marijuana.
The psychologist opines that his "half-hearted approach to his work once he began to practice law seemed to be part of his larger pattern of avoiding conflict." (Mike Frisch)
April 3, 2012
From In-House To Outhouse
A Louisiana Hearing Committee has recommended that a disbarred attorney be permanently disbarred.
The attorney was working at WorldCom in an non-lawyer position. He began working as an attorney there in 2001. He was disbarred for unrelated misconduct in 2002. He did not advise his employer and practiced as in-house counsel.
After the Verizon takeover, he was promoted to the position of Associate Counsel in 2003. He continued to engage in practice and never advised his employer of his earlier disbarment. (Mike Frisch)
Madoff Investment Does Not Undo Divorcing Lawyers Settlement Agreement
In a case involving a marital settlement agreement between two divorcing attorneys, the New York Court of Appeals reversed the order of the Appellate Division and reinstated the order of the Supreme Court.
The issue involved a claim of mutual mistake involving an investment account. The court here concluded that the plaintiff (husband and partner in a New York law firm) failed to state a cause of action against the wife, who is employed by a university.
The investment account at issue was with Bernie Madoff. The husband claimed that they both believed that the account was valued at $5.4 million on the valuation date in the agreement. Husband withdrew funds from the account in 2006 to pay wife. He continued to invest with Madoff until the "colossal Ponzi scheme was publicly exposed..."
Husband commenced the action 2 1/2 years after the divorce was finalized.
The court found that the situation did "not amount to a 'material' mistake of fact as required by our case law." Rather, '[t]his situation, however sympathetic, is more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain constant."
Abovethelaw had this story from last year. (Mike Frisch)
In Synchronicity In New Jersey
The New Jersey Supreme Court has issued an opinion that censures an attorney for his failure to safeguard and negligent misappropriation of entrusted funds, recordkeeping violations and a conflict of interest.
The court agreed with the Disciplinary Review Board that the misappropriation was negligent. The attorney did not act with intentional ignorance or a nefarious intent. No client was harmed. Further, the conduct was discovered in a 2002 audit and the attorney has remedied his practices.
The court also agreed with the DRB's sanction recommendation: "We are in synchronicity with the DRB's judgment that a censure is the proper quatum of discipline here."
A dissent would impose a short suspension to preserve public confidence in New Jersey attorneys. The dissent would not regard the delay as a mitigating factor. (Mike Frisch)
Accusations Of Misconduct Does Not Impress Court
The North Carolina Court of Appeals affirmed in part and reversed in part a trial court's disposition of a fight between a law firm and a departing attorney over contingency fees in cases that left with the attorney.
The court here held that the law firm was entitled to quantum meruit payment for its work prior to the departure. Such reasonable fee arrangements do not violate Rule of Professional Conduct 5.6.
The court noted that the opposing lawyers
...in their briefs and at oral argument, freely trade suggestions and outright allegations that the other has engaged in unprofessional and even unethical conduct, perhaps hoping thereby to persuade this Court toward deciding for the party engaged in the least egregious conduct. Those questions are better left to the State Bar and the parties' peers, and we reject their attempts, in exchanging affronts, to obfuscate the purely legal issues their dispute has presented, first to the trial court, and nowo this Court.
Crime Against Court Supervisor Results In Disbarment
An order of disbarment reported in the April 2012 California Bar Journal:
[An attorney] was disbarred Dec. 28, 2011, and ordered to comply with rule 9.20 of the California Rules of Court.
[The attorney] was convicted of felony stalking, with a hate crime enhancement, and misdemeanor making phone calls with the intent to annoy. In a default proceeding, the State Bar Court found that the convictions involved moral turpitude warranting disbarment.
The bar court’s review department denied the bar’s motion for summary disbarment in 2010, and referred the convictions to the hearing department for a moral turpitude determination.
Over a three-year period, [the attorney] repeatedly called and hung up on a woman who was once one of his supervisors at the Riverside County courthouse. He called 10 times a day, stopped for a short time and began again. The victim was reassigned to a different courthouse and had her work number changed when she began to fear for her safety. During the third year of calls, [he] spoke to the victim for the first time, telling her “something to the effect that ‘you may be able to pass as white on the outside, but I know you are black as the ace of spades,’” according to the disbarment recommendation. He also told the woman that caller ID could be blocked, which convinced her he intended harm.
A unit of the Riverside County Sheriff’s Department, which investigates crimes against court employees, put a wire tap on the victim’s phone and obtained telephone company records that led to [the attorney], who eventually confessed. He first lied about his identity and denied his guilt.