April 24, 2012
"A Modicum Of Remorse"
The Maryland Court of Appeals has imposed an indefinite suspension of an attorney who entered into a settlement agreement on behalf of a longtime client without the client's knowledge or consent.
The case involved a civil citation against the client for alleged code violations on boathouses and piers on his property.
The matter had been continued once. At the second scheduled hearing, the attorney was unprepared to proceed and believed that the judge would not continue the matter. The client was not present. The attorney twice left the room to give the impression that he was consulting with the client. He was not. He then agreed to a consent order that required payment of a fine and other conditions. He did not promptly inform the client.
The attorney paid the fine with his own cashier's check. He told the client about the consent order in response to an inquiry. The client kept him as attorney at the time but eventually replaced him.
Bar Counsel sought disbarment. At oral argument before the court, the parties agreed that the trial judge had not made findings regarding remorse. As a result, the matter was remanded for a remorse inquiry.
On remand, the trial judge found that the attorney had "a modicum of remorse." The court defined the term as a moderate or small amount. (Mike Frisch)
A Lot Of Pressure
The Georgia Supreme Court has rejected an attorney's petition for a six-month in a case involving neglect of three matters.
The attorney asserted that he did not intend to miss a court appearence in one matter but "was under a lot of pressure at the time because his law partner announced his intention to leave the law firm with only two days notice, leaving [the attorney] as a solo practicioner with no secretarial or legal assistance..." He also asserted that he was closing his law office as a result of an extended illness.
The court agreed with the State Bar that the proposed sanction was insufficient. (Mike Frisch)
April 23, 2012
Bar Letters Not Junk
Reciprocal discipline was imposed by the New York Appellate Division for the Second Judicial Department based on a sanction imposed by the New Jersey Supreme Court.
The attorney claimed lack of notice of the New Jersey action:
The respondent moved to vacate the [New Jersey] default claiming, inter alia, that she never received any of the OAE letters; that the signatures on the return receipt letters were not hers; that, due to her inability to navigate stairs because of health problems, either her daughter or son-in-law retrieved the mail; and that her son-in-law threw her mail away or placed it in "a pile of junk." The respondent also claimed that, since she had no clients since sometime in 2007, she did not have to notify any clients or return any files. With regard to her health, the respondent explained that she suffered from serious medical problems, causing her to undergo surgery on December 10, 2008. The respondent did not recall receiving the court's order of temporary suspension because, after the surgery, she was in a great deal of pain, took pain killers, and was "very foggy about that time period."
The OAE opposed the motion to vacate, arguing that the respondent had not established a reasonable basis for not filing an answer to the complaint and meritorious defenses to the charges.
The DRB agreed with the OAE that the respondent failed to meet the standard for vacating the default, finding that the respondent's assertion that she did not receive the complaint strained credulity. The DRB also refused to credit the respondent's assertion that she did not receive the court's order requiring her compliance with the provisions of R. 1:20-20. As for the respondent's assertion that her memory was fuzzy after the surgery, the DRB noted that the court's order was filed on September 23, 2008, almost two months before her December 2008 surgery. The fact that respondent had no clients since sometime in 2007 did not, in the DRB's view, absolve her of her obligation to file an affidavit of compliance.
Accordingly, the DRB denied the motion to vacate the default and treated the matter as a default.
The attorney was suspended for two years and until further order. (Mike Frisch)
The Wrong Bailey
A Louisiana Hearing Board has recommended disbarment of an attorney in a case that was "very involved and read[s] like a Greek tragedy."
The client had a $1.5 million trust set up as a result of a serious accident. His "pride and injuries cause[d] him to engage in a destructive course..." and led him to retain the attorney to break the trust. The attorney charged excessive fees and engaged in a conflict of interest by having his own wife appointed as trustee. As a result, the client died destitute.
Both the attorney who represented the client in setting up the trust and the one who engaged in the conduct that led to the proposed sanction had the last name of Bailey. They are not related. (Mike Frisch)
No New Trial For Prosecutor Work Product
From the web page of the Tennessee Supreme Court:
The Tennessee Supreme Court affirmed the trial court’s judgment today and ruled that a prosecutor’s handwritten note that was not turned over to the defendant before the trial of his case was not admissible as evidence and, therefore, was insufficient to support the defendant’s petition for a new trial.
In Feb. 1994, a jury found Cyrus Deville Wilson guilty of first degree murder. He was sentenced to life in prison. The conviction and sentence were affirmed on appeal. In Aug. 2009, after obtaining a copy of the prosecutor’s file, Wilson discovered a note handwritten by an assistant prosecutor that expressed her opinion that it was a “good case but for most of the” witnesses were“juveniles who had already lied repeatedly.” The defendant filed a petition for writ of error coram nobis, a statutory procedure that allows a defendant to seek a new trial based on newly discovered evidence relating to matters that were litigated at the trial if the judge determines the new evidence may have resulted in a different judgment had it been presented at trial. The trial court dismissed the petition because the assistant prosecutor’s note was attorney work product that was not subject to disclosure, but the Court of Criminal Appeals disagreed and ordered a hearing on the petition.
In a unanimous opinion authored by Justice Sharon G. Lee, the Tennessee Supreme Court ruled that the petition for writ of error coram nobis was based on evidence that was attorney work product, which would not have been admissible at the trial of the defendant’s murder case. Since the evidence was inadmissible, it would not have resulted in a different judgment at trial. Therefore, the Court reversed the Court of Criminal Appeals and reinstated the trial court’s judgment denying the petition for writ of error coram nobis.
To read the Cyrus Deville Wilson v. State of Tennessee opinion authored by Justice Sharon G. Lee, visit http://www.tncourts.gov/sites/default/files/wilsoncyrus.opn_.pdf.
The Maryland Court of Appeals has disbarred an attorney for misconduct in two client matters.
The attorney had repeatedly been late and unprepared for court appearences, failed to enter an appearance in a case after the court had directed her to do so, billed a client an unreasonable fee in apparent retaliation for a bar complaint, taken fees from trust without client knowledge and failed to turn over files after termination of representation.
The court noted that the attorney had once arrived 40 minutes late but that the "hearing was most notable not for its delayed start but for its bizarre conclusion, which prompted [the client] to seek a new lawyer. At the close of the proceeding, [the attorney] was arrested by deputy sheriffs for reasons unrelated to the divorce action." This led the client to review the file left behind and conclude that the attorney was not prepared.
The arrest was based on a bench warrant that was not found: "The record casts no further light on this event." (Mike Frisch)