Friday, January 13, 2012

Court Suspends Attorney For Slurs

The Illinois Supreme Court today has approved the imposition of discipline in a matter described by Stephanie Rabiner at Greedy Associates:

If you weren't already aware, gay slurs are inappropriate fodder for attorneys, and using them can lead to disciplinary sanctions.

Chicago-based traffic attorney Thomas Guadagno, 66, knows this first hand. The Illinois Attorney Registration and Disciplinary Commission has slapped him with a month-long suspension and two years of probation.

He's been accused of describing his colleagues as "gay scum" for at least the last six years.

According to the disciplinary complaint, Thomas Guadagno spent his days in Cook County Traffic Court. While there, he would tell potential clients that the other attorneys were "child molesters," and "faggots."

He also claimed that one colleague had a "sexual torture chamber in his basement."

And in 2009, he was found guilty of disorderly conduct, according to the Chicago Tribune. While at the courthouse, he called an ex-client's new counsel a scumbag and homosexual, and yelled out that he shouldn't hire a gay attorney.

That resulted in six months of probation and court-ordered anger management classes.

All of the above is believed to violate ethical provisions found in Model Rule 8.4. Under this rule, it is professional misconduct to:

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and

(d) engage in conduct that is prejudicial to the administration of justice.

Illinois rules also make it misconduct to "bring the courts or the legal profession into disrepute."

These rules could also be used to punish racial and religious slurs as well as overt sexist remarks. So do yourself a favor and learn a little something from Thomas Guadagno. Keep your hate to yourself.

The sanction consists of a five-month suspension with all but 30 days stayed and probation for two years. The attorney must participate in anger management treatment. The disposition can be found at this link. (Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The ABA, The Teamsters Union, And The Republic Of Uganda

In researching a question relating to qualifications to sit for the Illinois Bar examination, I came across a dissent on the requirement that an applicant be a graduate of an ABA-approved law school.

Perhaps this is ancient news, but I found it worth noting:

JUSTICE HEIPLE, dissenting:

By the amendment to Rule 711 and by Rule 703, which was previously adopted, this court recognizes only law schools which have been approved by the American Bar Association. I both dissent and object to these rules because they represent an improper delegation of a governmental and judicial function to a trade association of lawyers.

The American Bar Association is a voluntary association of dues paying lawyers (currently $225 per annum) that exists for the benefit of its members. No lawyer is required to belong. Most do not. It clothes its parochial existence with an overlay of public activities and pronouncements designed to convince the general public that it is interested in the general welfare. That its primary focus is the benefit of its members, however, is beyond question. That the American Bar Association is a trade association warrants neither commendation nor condemnation. As a trade association engaging in improving the status of lawyers and lobbying Congress and the State legislatures, it is on a par with any other trade association. It is decidedly not, however, an arm of the State of Illinois nor of this court.

It is improper for this court to assign and delegate to that organization the ultimate decisionmaking function of deciding for the State of Illinois which law schools warrant official recognition. It would be proper, of course, for this court and its Board of Law Examiners (now, Board of Admissions to the Bar) to consider and weigh the evaluations of the American Bar Association in considering which law schools are to be approved. The work of the American Bar Association in evaluating law schools could be considered as relevant evidence in that regard. No objection could be raised to that procedure.

This court, however, has no right to delegate its decisionmaking function to the American Bar Association, the Teamsters Union, the Republic of Uganda or any other such body or group. If the rule asserts a valid principle of law, then this court could as well assign all of its decisionmaking functions to others who might be considered experts in their field.

For the reasons given, I respectfully dissent.

The New York Times had this post about the justice.(Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tangled Web

The Iowa Supreme Court has imposed a 60-day suspension for neglect and "at least one misrepresentation to the court" in connection with the attorney's handling of an estate in probate proceedings. The attorney also had taken fees prematurely in the matter.

This case shows once again how a respected member of the bar can become entangled in a web of ethical violations arising from the neglect of an estate in probate proceedings.

The court cited a wide number of civic contributions by the attorney but also noted two prior admonitions. (Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Do No Falsehood

An attorney who made a knowing false statement in a Chapter 13 bankruptcy petition has been disbarred by the New Hampshire Supreme Court. The petition filed on behalf of a wife had failed to disclose income earned by her husband. The attorney was serving a two-year suspension for other misconduct.

The court noted that the oath of admission requires an attorney to "do no falsehood, nor consent that any be done in the court." While the client had expressed a desire to shield her husband's income, that wish provided no excuse for the misconduct. Further, the client endured "unnecessary expense and additional hardship" as a result. (Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Absent Disclaimer, Law Firm Liable For Reporting Services

The Nebraska Supreme Court has held that a law firm is liable to a court reporting service for the payment of fees for services.

The litigation involved services provided in five cases in a total amount of a tad below $6,000. The law firm had contended that their clients were the proper defendants. The court held that the firm was liable but not the contracting attorney as an individual under the particular facts.

The law firm had invoked agency law in support of its position.

The court responded:

As a practical matter, in today's legal system, an attorney dealing with those who provide legal support services acts less as an agent who relies on the client for authority to manage the case, and more as a "general contractor," who is responsible for supervising the various aspects of litigation. In that context, it is appropriate that the attorney, with superior knowledge and familiarity with the case and client, should bear the burden of clarifying his or her intent regarding payment. It is, in fact, a relatively simple matter foe an attorney to disclaim liability with a clear statement to that effect. And an attorney's liability for (and payment of) expenses of litigation is consistent with our ethical rules.

(Mike Frisch)

January 13, 2012 in Law & Business, Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)

Attorney-Architect Disbarred

The New Jersey Supreme Court has rejected a proposed three-year suspension from the Disciplinary Review Board and ordered the disbarment of an attorney-architect convicted of false statements to the Federal Bureau of Investigation.

The criminal conduct involved a series of false and misleading statement concerning payments to a member of the Union City zoning board of adjustment. The attorney falsely stated that he was repaid by the co-schemer "approximately $3,417 for his purchase of a Pomeranian dog and pet supplies for the co-schemer's girlfriend." He further falsely denied that he had provided money and things of value to the co-schemer.

The court imposed disbarment "for respondent's unethical conduct for which he derived personal benefit." (Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Disbarred For Attempted Murder Of State Representative

An attorney convicted of a series of violent felonies that included attempted murder has been permanently disbarred by the Indiana Supreme Court.

The attorney pleaded not guilty by reason of insanity in the criminal case. The jury rejected by defense but found that he suffered from an unspecified mental illness. He was sentenced to a forty year term of imprisonment.

Indychannel.com reported that the victim was an Indiana State Representative. Fox59WXIN had this report on the sentencing. Gary R. Welsh blogging at Advance Indiana has a post about what he calls a decades-long fued between the families of the disbarred attorney and his victim. (Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Victim Controlled Plea Bargain; Prosecutor Sanctioned

A deputy prosecuting attorney who "surrender[ed] her prosecutorial discretion in plea negotiations entirely to the pecuniary demands of the victim of the crime" was sanctioned with a public reprimand by the Indiana Supreme Court.

The court found that the conduct involved a prohibited conflict of interest and was prejudicial to the administration of justice.

The defendant had bounced a series of checks to the victim. The deputy prosecutor allowed the victim (a business) to negotiate restitution far in excess of the amount of the checks. The court found that the victim was able to use the criminal process to obtain advantage in its civil claims.

The court noted that a victim is permitted to have significant input in the plea bargaining process. Here, the deputy prosecutor engaged in misconduct by ceding to the victim absolute control of the negotiations concerning the plea.

The court rejected the claim that the deputy prosecutor was adhering to office policy and thus was protected by Rule 5.2(b), which provides:

A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

(Mike Frisch)

January 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 12, 2012

Former DA Disbarred

A former District Attorney from western Colorado has been disbarred, according to this summary on the web page of the Colorado Supreme Court.

The attorney violated bail bond conditions, a protective order and engaged in harassing behavior. He was convicted of criminal extortion and unlawful sexual contact.

The DenverPost.com had this report on the criminal charges against the attorney. Denver Westword blogs had this on the resulting guilty plea:

According to one woman, Serra suggestively asked her, "What will you do for me to get off work early?" She responded to this question by suggesting that she would bring donuts into the office, but he said he was on a diet. She then offered fruit, coffee and assorted consumables -- but Serra apparently had other things on his mind, reaching into his pants and taking out his penis. The woman said, "I do not want to do that," but according to the document, Serra didn't accept this answer. Instead, he placed her hand on his penis and asked how it felt. He added that if she would do him a favor, he'd do her a favor. She again said "no" as he touched her breast.

Investigators collected more such stories, including tales of marks left on wrists by Serra trying to force women to touch his penis. But one account is even more graphic. A woman said she was in Serra's office when he pulled the shades, told her, "You need to help a guy out," and removed his penis. He then placed her hand on his penis, and on this occasion, the terrified woman "followed through" and masturbated Serra. While doing so, she protested that the act was "wrong," to which he reportedly replied, "Oh, you know you like it. That's the kind of person you are." In the end, Serra finished himself off, ejaculating into a napkin that he tossed into a trash can when finished.

Presumably, Serra knew how tales like these would play with a jury. He's now entered guilty pleas in relation to charges of criminal extortion, a class-four felony, and unlawful sexual contact, a class-one misdemeanor that involved three victims.

(Mike Frisch)

January 12, 2012 | Permalink | Comments (0) | TrackBack (0)

Court Does Not Condone Behavior But Finds Insufficent Proof Of Ethical Violations

The Oregon Supreme Court has dismissed ethics charges against an attorney in connection with his efforts to collect a fee in a marriage dissolution matter:

Although we conclude that the Bar failed to prove the allegations against the accused by clear and convincing evidence, that does not mean we condone the accused's conduct. The accused turned a legitimate attorney fee claim for $24,000 into a multi-year proceeding that involved more than a dozen court appearences, ensnared multiple parties, and ultimately cost the accused and other parties mant times the amount that was originally at issue. However, the Rules of Professional Conduct do not, and cannot, guarantee that attorneys will act reasonably and professional in the multitudinous factual settings of litigation. As this court has noted, "[N]ot every negligent or unprofessional act, no matter how misguided, boorish, or rude, gives rise to an ethical violation." (citation omitted)

The court noted that trial courts have authority to sanction improper attorney behavior. Here, the attorney was ordered to pay attorney's fees of more than $20,000 to the attorney for his former client's spouse. (Mike Frisch)

January 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hearing Committee Thinks Most Louisiana Lawyers Could Not Pass Bar Exam

A Louisiana Hearing Committee has recommended that an attorney disbarred in 2003 be reinstated to practice.

The attorney failed to comply with procedural requirements of notification of the disbarment. The committee concluded that the failures did not preclude reinstatement.

Notably, the petitioner stated that he could not pass the bar examination if he was required to do so. The committee's observation:

This Court is aware that most lawyers in Louisiana could not pass the bar exam "today" if they had to.

The committee recommends limitations on practice if reinstatement is granted that include a prohibition on the petitioner from handling personal injury matters, opening his own practice and advertising.  (Mike Frisch)

January 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wages Of Lust

The Mississippi Supreme Court has accepted the irrevocable resignation of an attorney and ordered disbarment.

The attorney was convicted of the felony crime of gratification of lust. (Mike Frisch)

January 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sheer Luck Runs Out

An attorney convicted of tax evasion and conspiracy to defraud the United States has been suspended for three years by the New Jersey Supreme Court.

The attorney entered into an agreement with his law firm employer to take his salary without any withholding for taxes and never paid the taxes owed.

The Disciplinary Review Board noted as a mitigating factor that the attorney had an unblemished disciplinary record since his 1994 admission, but "in light of the fact that his dishonest conduct began one year after his admission to the bar, it is by sheer luck and the years it took for the criminal prosecution that his record has been blemish-free until now."

The DRB also considered admissions gleaned from the record outside of the plea in assessing the extent of misconduct. The additional evidence involved assisting clients in tax violations.

The employer attorney also was charged and convicted as refllected by reports linked here and here.  (Mike Frisch)

January 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

License To Steal

The Idaho State Bar recent discipline web page has a summary of a disbarment case involving multiple acts of serious misconduct.

Among the high (or, if you will, low) lights of the summary:

With respect to Count One, Mr. Bergesen admitted he violated I.R.P.C. 1.7, 4.2 and 4.4 in connection with his representation of D.B. D.B. was an 82-year-old woman who paid Mr. Bergesen $5,000 to provide criminal defense representation to a young man, A., who had befriended her and to whom she had provided over $10,000 in “loans.” D.B.’s sister, P., petitioned for a conservatorship based on A.’s undue influence and was named temporary conservator. Mr. Bergesen sought to represent D.B. in the conservatorship proceeding and filed an ex parte motion to release $7,000 from D.B.’s account for his retainer fee. The Court declined to authorize payment of the retainer fee and instructed Mr. Bergesen to submit his request for payment of hourly fees to P. Two days later, Mr. Bergesen drove D.B. to P.’s home, demanded immediate payment of his retainer fee and threatened to have P. thrown in jail for contempt. P. telephoned her attorney, who reiterated to Mr. Bergesen the Court’s instruction that requests for payment of hourly fees be submitted in writing. Mr. Bergesen then filed a Notice of Appearance for D.B. and a motion to release her funds based on a fee agreement she signed earlier that day. P. moved to disqualify Mr. Bergesen based on a conflict of interest, with specific reference to A.’s alleged exploitation of D.B. and Mr. Bergesen’s recent court appearance for A. on strangulation charges. Mr. Bergesen ultimately withdrew and the Court appointed P. as guardian and conservator for D.B., who was deemed incapacitated due to significant dementia.

With respect to Count Two, Mr. Bergesen admitted he violated I.R.P.C. 1.5(a), 1.5(f), 1.16(d), 4.1(a), 8.4(c) and 8.4(d), in connection with his representation of J.C. J.C. was a 75-year-old woman charged with multiple criminal counts. J.C. signed Mr. Bergesen’s fee agreement providing for a $200,000 fixed fee for lifetime representation. By the terms of the fee agreement, the $200,000 fee was due within three weeks and deemed earned upon receipt. J.C. paid Mr. Bergesen $50,000 by check and instructed her bank to issue Mr. Bergesen a check for $102,653, reflecting all remaining funds in her checking and savings accounts. Mr. Bergesen drove J.C. to the bank and obtained the check, which he cashed later that day. One day after that payment, J.C. instructed her bank to liquidate her retirement and annuity accounts and issue a $100,000 check to Mr. Bergesen. A bank representative advised J.C. to withhold a portion of those funds to pay her tax obligations. Mr. Bergesen called the representative and demanded that no funds be withheld because the prosecutor in J.C.’s criminal case demanded upfront restitution and J.C. purportedly needed all available funds as a “bargaining chip” to stay out of prison. The bank representative advised that no payment would be issued until Mr. Bergesen verified the funds would be held in trust. Mr. Bergesen falsely informed the representative that J.C.’s previous payments of over $152,000 had been deposited into his trust account. Prior to the final payment, J.C. retained other counsel and sent Mr. Bergesen a letter terminating his services, demanding an itemized accounting and refund, and requesting that he refrain from contacting her. Mr. Bergesen did not provide an accounting or refund and continued to contact J.C. against her wishes. Thereafter, Mr. Bergesen did not respond to repeated requests from J.C.’s new counsel for an accounting and refund of her payments.

And:

With respect to Count Seven, Mr. Bergesen admitted he violated I.R.P.C. 1.5(a), 1.5(b), 1.5(f), 1.8(f), 1.15(a), 1.15(b), 1.16(d), 4.1(a), 4.4(a), 8.4(c) and 8.4(d) in connection with his representation of K.L. in a criminal case. K.L.’s father, B., retained Mr. Bergesen to represent her for a $40,000 fixed fee. B. paid that fee in cash installments as Mr. Bergesen requested over a three-month period. Mr. Bergesen subsequently requested that B. pay an additional $50,000 because K.L.’s “life and freedom [were] at stake.” B. paid Mr. Bergesen $47,500 in additional fees by cash deposit. Thereafter, Mr. Bergesen’s live-in girlfriend, Brenda, whom he identified only as his “investigator,” requested that B. wire an additional $10,000 to her bank account so that she could conduct research at the University of Idaho law library. B. deposited $10,000 into Brenda’s bank account and paid Mr. Bergesen an additional $2,500, by cash deposit, based on Mr. Bergesen’s false representation that funds were needed for a grand jury transcript. Mr. Bergesen then requested an additional $15,000 for final trial preparations. B. paid Mr. Bergesen an additional $5,000. Shortly thereafter, K.L. accepted a plea offer and Mr. Bergesen requested an additional $10,000 to represent K.L. at sentencing. B. declined and requested an accounting and refund. Mr. Bergesen refused to provide an accounting or refund of B.’s payments totaling over $100,000.

IdahoStatesman.com reports that the attorney was convicted of crimes and will serve at least three years in prison. The report notes the criminal charges against the client in Count Two involved "using condiments to damage library materials at a drop box." (Mike Frisch)

January 11, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tennessee Judge Reprimanded

The Tennessee Court of the Judiciary issued a letter of public reprimand to a judge who had been the subject of three complaints.

One matter involved threats to a reluctant domestic assault victim to have her "handcuffed and arrested if she did not testify in a manner which [the judge] considered to be truthful."

A second matter involved a defendant sentenced on a number of traffic violations. The judge asked the defendant if he could pass a drug screen and said that if he failed, he would get two years in jail. The defendant said he could pass;  he flunked. The judge then amended the traffic charges to reflect a marijuana conviction without such a charge having been presented.

In the third matter, the judge revoked probation of a victim and two witnesses who were testifying under subpoena without providing counsel, a hearing or advice on their rights.

The letter states that ther judge has taken remedial steps to address the misconduct. (Mike Frisch)

January 11, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Youngstown Two

From the web page of the Ohio Supreme Court:

In separate disciplinary actions announced today, the Supreme Court of Ohio imposed indefinite license suspensions against Youngstown attorneys Warren “Bo” Pritchard and Brian P. Kish.

2011-0815. Mahoning Cty. Bar Assn. v. Pritchard, Slip Opinion No. 2012-Ohio-44.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 10-025. Warren G. Pritchard of Youngstown, Ohio, Attorney Registration No. 0008417 is indefinitely suspended from the practice of law in the state of Ohio.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-44.pdf

(Jan. 11, 2012) The Supreme Court of Ohio today indefinitely suspended attorney Warren “Bo” Pritchard of Youngstown from the practice of law for multiple violations of the Code of Professional Responsibility and Rules of Professional Conduct in his dealings with 20 different clients between 2006 and 2009. 

Pritchard’s law license has been under an interim remedial suspension since November 2009, when the Court received information documenting a pattern of neglect in his handling of entrusted client legal matters.

In its 7-0 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that, in most of the cases at issue, Pritchard collected fee advances from clients, neglected or failed to complete the legal work for which he was retained, failed to respond to communications from the clients and refused to refund their retainers.

In imposing an indefinite license suspension without credit for the time he has served under interim suspension as the appropriate sanction for his misconduct, the Court noted the aggravating factors that Pritchard acted with a selfish motive, engaged in a pattern of misconduct involving multiple rule violations over an extended time period, caused harm to vulnerable clients and failed to make restitution. 

The Court set a number of conditions for any future reinstatement of Pritchard’s license, including restitution of unearned legal fees to his clients, certification by a mental health professional of his competence to return to the ethical practice of law, compliance with state continuing legal education requirements, a two-year period of supervised probation and completion of a comprehensive course in law-office management approved by the Mahoning County Bar Association.

2011-0846.  Mahoning Cty. Bar Assn. v. Kish, Slip Opinion No. 2012-Ohio-40.
On Certified Report by the Board of Commissioners on Grievances and Discipline, No. 10-020. Brian P. Kish of Youngstown, Ohio, Attorney Registration No. 0074488, is indefinitely suspended from the practice of law in the state of Ohio and is ordered to make restitution.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-40.pdf

(Jan. 11, 2012) In a 7-0 per curiam decision announced today, the Supreme Court of Ohio indefinitely suspended the law license of Youngstown attorney Brian P. Kish for professional misconduct in his dealings with 12 clients.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in 10 cases Kish accepted fee advances and agreed to perform legal work for clients, but failed to file necessary documents or appear at scheduled court proceedings, stopped responding to communications from the clients, and failed to refund unearned fees.

The Court agreed with the disciplinary board’s conclusions that Kish’s acts and omissions violated, among others, the rules of professional conduct that prohibit an attorney from charging an illegal or excessive fee and that require attorneys to act with reasonable diligence and promptness in representing a client, to keep clients informed about the status of their legal matters and comply with reasonable requests for information, and to promptly refund the unearned portion of a client’s fee when withdrawing from representation.

As a result of today’s decision, Kish will not be eligible to apply for reinstatement of his license until January 2014.  Among prior conditions that must be met before reinstatement is granted, the Court required that Kish must make restitution of specified amounts to 10 of his former clients, must provide proof of continued mental health counseling and competence to return to the practice of law, and must agree to serve a two-year probationary period during which his practice and law office trust account will be monitored by the Mahoning County Bar Association.

(Mike Frisch)

January 11, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Agreed Reprimand For Prosecutor's Marijuana Possession

A deputy prosecuting attorney who was arrested for possession of marijuana has been reprimanded by the Indiana Supreme Court.

 He admitted the charge and entered into a diversion program. He was "discharged from his position shortly after his arrest."

The court accepted the agreed sanction, noting the absence of prior discipline, cooperation and that "there is no evidence of addiction or substance abuse." The court also stated that the sanction would "likely be more severe had this matter been submitted without agreement." (Mike Frisch)

January 11, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension To Restore Faith

The New Jersey Supreme Court has imposed a three-month suspension of an attorney who had failed to follow through on a client's pension distribution rights in his divorce.

The attorney initially responded to the client's bar complaint with expressions of remorse and promises to complete the task. THe District Ethics Committee was "[m]anifestly swayed by repondent's contrition and promises" and had recommended an admonition for the five years of "langour" by the attorney.

After making such promises, the attorney did "absolutely nothing" and the client renewed his complaint: "His loss of faith in the disciplinary system was all too apparent."

The Disciplinary Review Board felt the need to restore such faith by proposing the suspension that the court imposed. (Mike Frisch)

January 11, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2012

No Toni Award

The New York Appellate Division for the First Judicial Department has reversed the trial court and ordered the dismissal of a legal malpractice claim on statute of limitations grounds:

Accepting the allegations in plaintiff's complaint as true and resolving all inferences in her favor, as we must in considering a motion to dismiss...this legal malpractice action accrued in California at the latest in November 2007, when plaintiff received defendants' letter unequivocally informing her that they were no longer representing her or prosecuting her underlying actions. Accordingly, under California's applicable one-year statute of limitations (Cal Code Civ Proc § 340.6[a]), this action, commenced in February 2010, is time-barred.

Contrary to the motion court's finding, plaintiff's assertion that it was not until October 2009 that she discovered that Radialchoice, the record company with whom she had held a recording contract, was involuntarily liquidated, did not raise an issue of fact as to whether this action is time-barred. Indeed, plaintiff's allegation was asserted only in her memorandum of law in opposition to the motion, not in her pleadings or any accompanying affidavit...Moreover, plaintiff's alleged discovery is simply an additional facet of the same nonfeasance of which, according to her complaint, she had been aware since November 2007; thus, it does not constitute a separate wrongful act or omission for statute of limitations purposes...

Lastly, plaintiff's allegations support the conclusion that she had inquiry notice of defendants' alleged nonfeasance more than one year before commencing this action. Indeed, since January 2007, when plaintiff obtained her case files and observed that defendants had performed very little work on her underlying cases, she should have discovered, through the use of reasonable diligence, the facts supporting liability, including the fact that Radialchoice had been involuntary liquidated

The plaintiff performs under the stage name Toni Basil. (Mike Frisch)

January 10, 2012 in Clients | Permalink | Comments (0) | TrackBack (0)

New Recusal Procedures In Tennessee

From the web page of the Tennessee Supreme Court:

The Tennessee Supreme Court has adopted a comprehensive revision to the Code of Judicial Conduct, which sets forth the ethics rules for Tennessee judges. The new Code of Judicial Conduct, which is Tennessee Supreme Court Rule 10, will take effect on July 1, 2012.

Among the principal changes to the Code of Judicial Conduct is the addition of a new procedure for pursuing the recusal of a judge, along with a new process for seeking an expedited appeal if a motion for recusal is denied.

Under the new recusal procedure, judges will be required to provide, in writing, grounds for denying any motion for recusal. And, in cases where the recusal is granted, the rule outlines the process for designating a new judge in the case.

In the new rule, the Court also establishes the process for seeking an expedited appeal should a motion for recusal be denied. Should a judge deny a motion for recusal, an accelerated appeal may be filed with the appropriate appellate court within 15 days of the judge’s ruling. The appellate court will then make a decision on an expedited basis.

The Supreme Court also eliminated the ability for judges to make contributions to political campaigns or political organizations. However, the rule allows judges to purchase tickets to attend campaign events.

In following the American Bar Association’s model rules of judicial conduct, the Court adopted a new provision regarding the disability and impairment of a judge or attorney. The new rule instructs judges to take “appropriate action”, such as referral to a lawyer or judicial assistance program, should a judge have reasonable belief that another judge or attorney is impaired by drugs, alcohol or other physical, mental or emotional condition.

“Maintaining a high standard of judicial ethics is paramount to the public’s trust and confidence in the courts and the judges who preside over them,” said Chief Justice Cornelia A. Clark. “We believe these changes to the Code of Judicial Conduct will provide Tennessee judges with greater guidance for conducting the business of the courts in a fair, impartial and ethical manner.”

The new Code of Judicial Conduct was adopted as a result of a petition filed by the Tennessee Bar Association (TBA) to make changes to the current ethics rules. The TBA’s proposed rule changes were developed by a 13-member task force of attorneys and judges.

The Supreme Court filed the TBA’s proposed rules for public comment in March. Following the public comment period, the Supreme Court held oral arguments in December to discuss some of the issues in the TBA’s proposed rule.

The new Code of Judicial Conduct, along with the TBA’s proposed amendments and comments from the public, are available online here.

(Mike Frisch)

January 10, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)