Friday, May 18, 2012
The Maryland Court of Appeals has ruled that the courts of the state have authority to adjudicate a petition for a divorce in same-sex marriages. The parties involved were married in California.
The court described the approach of the Maryland Legislature to same-sex marriage as akin to a patient that in its "lay diagnosis" is suffering from a "multiple personality disorder." (Mike Frisch)
The Kansas Supreme Court Court has suspended an attorney for one year, primarily for misconduct with respect to his representation of a husband and wife in connection with a fire at their home.
The wife had set the fire for insurance purposes. The attorney represented her in the criminal matter. He also represented the husband in researching whether he could qualify as an "innocent spouse" in the insurance claim.
The court here was quite concerned that he continued to assert in the disciplinary matter that there was no conflict of interest in the multiple representation, particularly in light of the wife's request that certain information not be disclosed to her husband.
The attorney also had billed for a two-hour conference with the county attorney that never occurred. The court rejected his contention that the evidence must be "undisputed" to permit a finding of misconduct. Such an approach would permit an attorney to avoid discipline by adopting a "deny, deny, deny" strategy.
The bill for two-hour conference was caught by a partner who had reviewed the attorney's pre-bill. As a result, the bill was not sent.
The court stated that the dishonest billing conduct was sanctionable "regardless of whether the mark learns of the con...It matters not that [the partner] prevented the lie from reaching its intended target." (Mike Frisch)
Another opinion from the Florida Judicial Ethics Advisory Committee:
Whether a judicial candidate may wear jewelry or apparel depicting an elephant or donkey.
ANSWER: If a reasonable person objectively viewing the jewelry or apparel would conclude that the judicial candidate is “commenting on the candidate’s affiliation with [a] political party” or is engaging in “conduct that suggests or appears to suggest support of . . . a political party,” then no.
It is commonly known that the elephant and the donkey traditionally have been associated as logos for the Republican Party and Democratic Party, respectively. Although the inquiring judicial candidate has described her jewelry and/or apparel as “non-political” in style and that “the GOP elephant and the Democratic donkey are very specific” in style, her subjective view of these matters is not the deciding factor. Rather, the deciding factor is whether a reasonable person objectively viewing the candidate’s jewelry or apparel would conclude that the candidate is “commenting on the candidate’s affiliation with [a] political party” or is engaging in “conduct that suggests or appears to suggest support of . . . a political party.” If a reasonable person would conclude that the candidate is making such comment or is engaging in such conduct, then the candidate will have violated Canon 7. If a reasonable person would conclude that the candidate is not making such comment and is not engaging in such conduct, then the candidate will not have violated Canon 7.
Thus, the committee does not opine that the wearing of jewelry or apparel depicting an elephant or donkey automatically results in a violation of Canon 7. Rather, we caution the inquiring judicial candidate that the wearing of such jewelry or apparel could, but not necessarily would, result in a violation of Canon 7 depending on the reasonable person’s objective view of the wearing of such jewelry or apparel.
Our opinion today is consistent with a long line of previous opinions which serve to caution judicial candidates to avoid conduct which suggests, or appears to suggest, the candidate’s affiliation with, or support of, a political party. See In re Angel, 867 So. 2d 379 (Fla. 2004) (commanding a judge to appear for a public reprimand where, among other things, the judge, when asked about his party affiliation, identified himself as a member of a party and thus held himself out as a member of a party); In re Alley, 699 So. 2d 1369 (Fla. 1997) (commanding a judge to appear for a public reprimand where, among other things, the judge’s campaign mailer noted the party affiliation of the governor who appointed her opponent); JEAC Op. 02-13 (a judicial candidate may not “privately” disclose his or her political affiliation if asked); JEAC Op. 00-29 (a judicial candidate cannot advertise a political party’s endorsement because such advertising is tantamount to advertising oneself as a member of that party); JEAC Op. 96-21 (a judicial candidate may not respond to a political party’s questionnaire by listing the candidate’s extensive partisan activities); JEAC Op. 90-16 (a judicial candidate may not respond to the question “What political party are you registered with?”). But see JEAC Op. 06-21 (a judicial candidate may accept and advertise an endorsement from an elected partisan official acting in the official’s individual capacity, provided the support is not from the official’s political party, the official is not also campaigning for re-election, the partisan aspects of the official’s position are not mentioned, and the content of the advertising does not otherwise violate the Code).
While the committee respects the candidate’s concern about a violation of her “personal rights and freedoms,” i.e., freedom of speech, Canon 7 obviously is a recognized limited restriction on the freedom of speech. See, e.g., In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (the restraints of Canon 7’s “pledges and promises” clause “are narrowly tailored to protect the state’s compelling interests without unnecessarily prohibiting protected speech”).
As usual, the Florida Judicial Ethics Advisory Committee is on the cutting edge of questions about judges and social media.
A recent opinion concludes:
Whether a judge may add lawyers who may appear before the judge as "connections" on the professional networking site, Linked In, or permit such lawyers to add the judge as their "connection" on that site?
The Inquiring Judge notes the Committee's Opinion 09-20, which concluded that it was not permissible for a judge to approve a lawyer who may appear before the judge as a "friend" on a social networking site such as Facebook. The Inquiring Judges asks whether the same restriction would apply to a judge approving such a lawyer as a "connection" on the professional networking site LinkedIn.
The Inquiring Judge submits that a distinction should be drawn between Facebook, where family and other personal relationships are fostered, and LinkedIn which is for the purpose of conducting professional networking. Therefore, the Inquiring Judge submits that "a judge's connection on LinkedIn with lawyers who may appear before the judge does not reasonably convey the impression to the public that a personal relationship of any kind necessarily exists between them." The Inquiring Judge states that the Committee in Opinion 09-20 "determined that judges cannot include lawyers as friends on certain social network sites because the term 'friends' conveys the traditional meaning of close affection.
On LinkedIn, under the default settings, a person's profile lists only the number of connections (and not their names) to persons who have not been accepted as "connections." If a visitor to the site is thereafter accepted by the member as a "connection," that visitor can thereafter view the names (and professional information) of the member's connections.
The Committee has reviewed with particular interest California Opinion Number 66, which concludes that it is permissible for a judge to accept a lawyer as a Facebook "friend" or LinkedIn "contact" if that lawyer may appear before the judge. The California committee goes on to opine however that a judge may not approve the lawyer, or have a lawyer as a friend or contact, if the lawyer has a case pending before the judge.
This approach would require each judge who had accepted a lawyer as a friend or connection to constantly scan the cases assigned to the judge, and the lawyers appearing in each case, and "defriend" or delist each lawyer upon a friend or connection making an appearance in a case assigned to the judge.
By contrast, we noted in Opinion 09-20 that "The inquiring judge has asked about the possibility of identifying lawyers who may appear before the judge as 'friends' on the social networking site and has not asked about the identification of others who do not fall into that category as 'friends'. This opinion should not be interpreted to mean that the inquiring judge is prohibited from identifying any person as a 'friend' on a social networking site. Instead, it is limited to the facts presented by the inquiring judge, related to lawyers who may appear before the judge. Therefore, this opinion does not apply to the practice of listing as 'friends' persons other than lawyers, or to listing as 'friends' lawyers who do not appear before the judge, either because they do not practice in the judge's area or court or because the judge has listed them on the judge’s recusal list so that their cases are not assigned to the judge."
That approach, with the judge making a determination on whether or not a lawyer may appear before the judge, based on the characteristics of the lawyer's practice and the jurisdiction of the judge's court, appears more feasible than one that contemplates a judge constantly approving, deleting, and reapproving lawyers as "friends" or "connections" as their cases are assigned to, and thereafter concluded or removed from, a judge.
For the reasons stated in Opinion 10-06, one member continues to dissent.
The Iowa Supension Court has indefinitely suspended an attorney without possibility of reinstatement for one year. The attorney had continued to practice after suspension for failure to pay a financial obligation to the Department of revenue:
One bedrock of the [bar disciplinary] system is that a suspended attorney will actually be suspended. The system does not work when lawyers continue to make filings, meet with clients, send out legal correspondence, and take fees while they are supposed to be under suspension.
The attorney also had failed to account for or refund a fee.
He defaulted in the disciplinary case. (Mike Frisch)
A justice of the Maine Supreme Court has agreed with the conclusions of the Board of Bar Examiners and denied admission on character and fitness grounds to an applicant who had passed the July 2010 bar examination. The applicant had previously failed the Massachusetts bar exam.
The applicant was licensed to practice medicine in 1988. He engaged in sexual misconduct with a patient. He had used inappropriate litigation tactics in a variety of matters, which the justice characterized as a "continuing theme" over a period of many years. He also lied about the status of his medical license in seeking work.
The justice also noted that the applicant was "frequently disorganized and unfocused" and had "unusual levels of anger and belligerence." These traits were displayed in the admissions process as well as in other aspects of the applicant's life:
What stands out is that [applicant] is willing, when the stakes are high, to say or do almost anything to get the result he wants, even if it involves bullying a witness, or attempting to bully an adversary or even an adjudicatory body
Drew Wortman, an assistant prosecutor facing an assault charge, has been fired. Another assistant prosecutor, K.C. Collette, will leave in July, Hancock County [Ohio] Prosecutor Mark Miller announced Wednesday.
The firing of Wortman follows an assault allegation by an ex-girlfriend, and additional worries that "he can no longer be effective" at the prosecutor's office, Miller said.
"This is the result of not only his domestic issue but several other concerns that have only recently been brought to my attention," Miller said.
He declined further comment Wednesday.
Wortman had an April 30 pretrial hearing in Findlay Municipal Court, and it became clear his criminal case would be prolonged, Miller said. Wortman was told he could no longer be on paid leave, and would be fired, Miller said.
Since the hearing, Wortman has been using accrued vacation time, Miller said.
Wortman pleaded not guilty to the misdemeanor assault charge and is scheduled for a June 7 jury trial. An ex-girlfriend alleges Wortman slammed her head against the wall and bit her upper lip on Jan. 30.
Separately, Assistant Prosecutor Collette will leave by July 13, Miller said.
Before he joined the prosecutor's office, Collette was twice arrested on charges of soliciting prostitutes in Florida in the 1990s.
Collette did not properly disclose the arrests when hired by then-Prosecutor Robert Fry in 1996, Miller said.
After the arrests were publicized this year, Collette was suspended in March for two weeks without pay.
Since returning to the prosecutor's office last month, Collette has been "actively seeking other employment and endeavoring to finalize his retirement plans," Miller said.
The July deadline was set so Collette, who is also a Findlay councilman, could secure health insurance for his family through future employment or retirement, Miller said.
Miller said he has begun looking for new assistant prosecutors, and may hire an additional prosecutor if the budget allows. The number of prosecutors in the office is the same as it was in 1994, Miller said.
The office will continue supporting residents with "hard work, dignity and high moral character," he said.
The article is linked to the web page of the Ohio Supreme Court. (Mike Frisch)
An Illinois attorney has moved for consent disbarment as a result of a conviction for attempted sexual intercourse with a 16 year old. The attorney had first been in contact with the person on the Internet and then arranged to meet her at a Walgreens.
They went togerher to his car and were later observed in the back seat by a police officer. The attorney claimed that he had no contact with her prior to meeting at the store, a version of events contradicted by a store video camera.
The incident took place in California. The attorney failed to report the conviction to Illinois bar authorities as required.
It came to light when he applied for admission to the California Bar. (Mike Frisch)
Thursday, May 17, 2012
The holding in a decision issued today by the Nevada Supreme Court:
In this original writ petition, we address whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. In considering this issue, we adopt the framework espoused by the Eighth Circuit Court of Appeals in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). Under the Shelton analysis, the party seeking to depose opposing counsel must demonstrate that the information sought cannot be obtained by other means, is relevant and nonprivileged, and is crucial to the preparation of the case. Id. at 1327. Because the district court did not analyze these factors, we grant the writ petition in part and direct the district court to evaluate whether, applying the Shelton factors, real parties in interest may depose petitioners’ former trial attorney.
The court states
By establishing [a] heightened standard when a party is attempting to depose opposing counsel, we advise litigants to resort to alternative discovery methods and discourage endeavors to seek confidential and privileged information. When the facts and circumstances are so remarkable as to allow a party to depose the opposing party’s counsel, the district court should provide specific limiting instructions to ensure that the parties avoid improper disclosure of protected information.
The New York Appellate Division for the Third Judicial Department has imposed a suspension of two years and until further court order of an attorney who "became obsessed with the fsmily ofan adolescent whom he had represented as attorney for the child."
According to the opinion
His obsession manifested itself in numerous electronic communications with family members and others concerning the adolscent's alleged drug use and sexual activity, all under the guise of his concern for her well-being. The communications were often vulgar and profane. The family became alarmed and threatened by the communications and complained of harassment to the police.
The attorney pleaded guilty to disorderly conduct.
He also sent "electronic messages to his friends and relatives during a trip to California...that expressed anger and threatening sentiments, though not directed at anyone in particular." (Mike Frisch)
A recent judicial ethics opinion from Delaware:
The Delaware Judges Code of Conduct permits a Judge to serve as President of a Club that performs charitable activities which are supported through fund-raising activities, so long as the Judge is able to separate his duties as President from the Club’s fund-raising function and does not allow the prestige of his judicial office to be used as a fund-raising mechanism. Canons 3.7
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today suspended the law license of attorney Joshua A. Engel for six months for violations of state attorney discipline rules while Engel served as chief legal counsel for the Ohio Department of Public Safety.
In 2010, Engel pleaded guilty to three misdemeanor counts of disclosing confidential inspector general information by sharing with others copies of emails between Public Safety Department investigators and the inspector general that Engel had intercepted through the use of an internal email filter. At the time the email exchanges took place, the inspectors whose messages were intercepted were working on assignment to the inspector general’s office rather than for the Department of Public Safety.
The court adopted findings by the Board of Commissioners on Grievances & Discipline that Engel did not intend to capture confidential information, but violated ethical canons by failing to terminate use of the filter or to stop sharing intercepted messages with others for almost a year after discovering that the filter had resulted in disclosure of confidential communications.
In imposing an actual license suspension as the sanction for his misconduct, the court distinguished Engel’s actions from those of former Governor Bob Taft, who received a public reprimand for inadvertently failing to disclose in sworn annual financial disclosure statements certain items of value he had received during those years.
The court wrote: “Engel did not intend to intercept confidential information relating to ethics and law-enforcement investigations when he installed the email filter. But when he discovered that the email filter was intercepting such information, he did nothing to stop it and left the filter in place for ‘a couple months, maybe going on a year.’ The (disciplinary) board found that Engel had harmed only himself and declined to increase his sanction based on the potential for inchoate harm arising from his misconduct. We find, however, that his distribution of confidential information about pending law-enforcement and ethics investigations to those who were not authorized to receive such information, while he served as chief legal counsel for DPS, worked to undermine public trust, not only in the legal system, but in state government as a whole.”
“Unlike Taft who was found to have violated the prohibition against a lawyer’s engaging in conduct that adversely reflects on his fitness to practice law with his inadvertent failure to comply with financial disclosures, Engel acted recklessly and stipulated that his conduct adversely reflected on his fitness to practice law and that it was prejudicial to the administration of justice. For these reasons, we find that a greater sanction is warranted.”
The court’s per curiam opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Yvette McGee Brown did not participate in the court’s deliberations or decision in the case.
Justice Evelyn Lundberg Stratton entered a dissent, noting that the actual license suspension imposed by the court was more severe than the stayed license suspension recommended by the hearing panel that conducted Engel’s hearing or the public reprimand recommended by the full disciplinary board.
She wrote: “The parties stipulated that three mitigating factors are present: the absence of a prior disciplinary record, cooperation with the disciplinary process, and the imposition of the additional penalties of criminal convictions and sentencing. ... The board concluded that there were no aggravating factors and that Engel’s conduct caused no harm to anyone but himself. ... The panel had the opportunity to personally observe Engel and judge his credibility. I see no reason for this court to second-guess the panel’s determinations. Furthermore, the increase in penalty is out of proportion to the violation.
The court's opinion is linked here. (Mike Frisch)
Wednesday, May 16, 2012
An Arizona Hearing Panel has granted reinstatement with conditions of an attorney who had been suspended for six months.
In one of the disciplinary matters, the attorney had
disagreed with a judge's ruling, become abusive in open court, disregarded the judge's instructions, used a profanity, and then moved towards the prosecutor in what was perceived to be a threatening manner.
In the reinstatement proceeding
Applicant testified that his issues in the past arose from stupidity, arrogance, a temper, a lack of professional decorum borne in equal parts from frustration and a lack of humility and empathy regarding the process of the law. Applicant stated that he has had a personal epiphany about his issues; has shed his anger and frustration and now passed into a state of acceptance. Applicant states that he feels that he is a different person today because he better understands himself and understands the stressors that were keyed by frustration. His suspension caused him to do some soul searching, introspection and remediation. Applicant further stated that both he and his wife analysed the stressors experienced at home and that he has not raised his voice in over four months.
The reinstatement order is subject to probation of two years with continuation of counseling sessions. (Mike Frisch)
The District of Columbia Bar is offering the following course:
On May 23 the D.C. Bar Continuing Legal Education Program will offer the new ethics course “Tri–State Ethics Confusion: Differences Among the D.C., Maryland, and Virginia Rules.”
The course will provide attendees with an overview of the major differences in the rules of professional conduct among the three jurisdictions. Faculty will review the differences regarding fees, confidentiality, conflicts, conduct of litigation, client funds, contacts with third parties, advertising, and solicitation of clients. Conflict of laws issues aimed at determining which jurisdiction’s rules might apply to a particular lawyer or scenario also will be discussed, along with what steps a lawyer can take to attempt to comply with all applicable rules, even when they differ.
The New York Appellate Division for the First Judicial Department has affirmed the grant of summary judgment to a law firm sued for discrimination by a terminated attorney:
In this discrimination action, plaintiff alleges that the defendant law firm terminated her because of her age and gender. The motion court properly determined that plaintiff failed to meet her burden of showing that she was discharged under circumstances giving rise to an inference of discrimination. Even assuming arguendo that plaintiff had met that burden, defendant law firm offered legitimate, non-discriminatory reasons for plaintiff's termination since she had engaged in misconduct by, over a period of several years, using a car service hundreds of times in violation of defendant's policy. Plaintiff would commute to and from her home, and to her personal appointments and the office, and then charge those trips to various clients. Plaintiff failed to show that defendants' stated reasons for her termination were false or pretextual or that defendants were motivated by discrimination. (citations omitted)
The motion court did not abuse its discretion in denying plaintiff's motion to amend the complaint to add a claim under New York Judiciary Law § 487 and to add a partner at the law firm as a party. Plaintiff failed to allege facts demonstrating that the law firm or its partners intended to commit deception in a letter to the Departmental Disciplinary Committee reporting plaintiff's misconduct.
Tuesday, May 15, 2012
A District of Columbia Hearing Committee has recommended approval of a consent discipline of a three-month suspension of an attorney convicted of stealing "seven or eight" neckties from a Nordstrom's in Tysons Corner, Virginia.
The attorney was depressed as a result of his marital situation and sought help after his arrest. The hearing committee (chaired by my former student Matt Kaiser) accepted medical evidence that linked the depression and the crime.
The hearing committee concluded that the misdemeanor petit larceny conviction did not involve moral turpitude, which would have required disbarment.
The attorney has been suspended as a result of the conviction and will be reinstated if the recommendation is adopted.
The report in In re Albert G. Zarate can be found at this link. (Mike Frisch)
The North Dakota Supreme Court has suspended an attorney for six months and one day.
Among the violations were instances of unauthorized practice while suspended for failure to pay child support:
[The attorney's] license to practice law in North Dakota was suspended on August 8, 2011, due to nonpayment of child support and reinstated August 25, 2011. On August 18, 2011, [he] met with opposing counsel and otherwise held himself out as a licensed attorney. On October 5, 2011, [his] license was again suspended due to nonpayment of child support, and reinstated December 15, 2012. On November 2, 2011, [he] appeared before the Honorable Lee A. Christofferson, District Judge, for a status conference in two criminal cases, and on November 15, 2011, appeared before the Honorable Donovan Foughty, District Judge, as attorney for the plaintiff in a stipulated divorce action.
Monday, May 14, 2012
An Arizona attorney has been suspended for one year with reinstatement on probation for two years.
Among the incidents were two sets of communications by telephone with medical records providers.
One involved the attorney's receipt of the wrong records. He yelled profanities at one employee and called a second "nothing but a slut who worked for a copy service."
He claimed that he had called her a "slug." She testified that she could tell the difference between a "g" and "t" sound.
He sought to leave a message to a second records provider and when he was told that she would get back to him stated that he was so excited that he "just came all over himself." He identified himself as "Maurie Sieman." His true name is Meyer Ziman.
He testified that he is 67 years old and incapable of coming all over himself.
The Hearing Panel:
Lawyers should always strive to treat others with dignity and respect. Rude attacking comments reflect poorly on a self-regulating profession. When making business calls, it is not necessary to give grammar lessons, but that is not a sanctionable offense. It does however demonstate a pattern of insensitivity and intentional disregard of others and rules which [his] prior discipline had little impact upon. Worse and more aggressively to the point, it is inexcuable to make profane and insulting remarks. When followed by a pattern of neglect with respect to client matters, his conduct runs the gamut of minor to major transgressions and behavior that he has little apparent interest in controlling or addressing...
individuals have absolute freedom to hold any number of views. Respondent clearly holds other[s] in extreme low regard that he deems inconvenience him. He is entitled to hold that opinion. However, Respondent brandishes his opinion as a battering ram, intentionally offending people. This Panel does not believe these are "slips of the tongue" or inadvertant. Respondent is intentional in his conduct and bull whips people by his words with a zeal. While in private life he may be as rude, offensive and demeaning as he chooses, in his professional life he may not hide behind his First Amendment rights to ignore his sworn responsibilities.
Many jurisdictions issue annual publicly-available reports concerning the operation of their bar disciplinary systems. Such reports have recently been released in michigan and Pennsylvania.
The web page of the Pennsylvania Disciplinary Board notes:
...the Disciplinary Board has released its Annual Report for 2011. A few items of interest:
- There are 58,968 active and 11,296 inactive paid attorneys as of December 31, 2011. In comparison, the number of active paid attorneys for the 1972-1973 Fiscal Year was 13,057.
- The Board did a statistical study of Rule violations vs. the number of years the attorneys were in practice and found, surprisingly, that it is not newly admitted, younger attorneys who are engaging in the most common Rule violations, but attorneys who have more than 20 years of practice.
- As of December 31, 2011, there were 57,527 subscribers to the monthly Attorney E-Newsletter, an increase of 9,799 from 2010.
- As of December 31, 2011, there are 150 Hearing Committee Members appointed by the Disciplinary Board who serve on a pro bono basis to conduct hearings. Of the 150, 82 are Senior members, 27 Experienced members, and 41 New members.
- In the spring of 2011, the Disciplinary Board launched online Annual Attorney Registration. 20% of all registered attorneys used online attorney registration to pay their 2011-2012 Attorney’s Annual Fee.
- The October 2011 Board Meeting was the first entirely paperless meeting.
If you have finished the Hunger Games trilogy and are in need of new reading, the report is posted here.
The Michigan report is linked here.
The attentive reader likely knows what comes next - the District of Columbia does not make any such report available to the public, at least not in the online, user-friendly manner of Pennsylvania and Michigan. (Mike Frisch)
The New Jersey Appellate Division has affirmed a trial court decision to not enforce a law firm's charging lien in a hotly disputed divorce action. The trial court had established an educational trust for the benefit of minor children.
When the adults in the controversy are unable or unwilling to act in the best interests of their own children, the court must be free to act, swiftly, decisively, and unfettered by extraneous considerations. The establishment of a judicially crafted educational trust fund is but one of a myriad of creative remedies in the court's equitable arsenal. An attorney charging lien, or any other of the possible numerous claims that can be asserted against a family's limited resources, cannot undermine the court's parens patriare responsibility. The monies supporting the education fund are restricted to cover the cost of the children's college education, and would thus not be available to plaintiff at the time of final disposition.
The court further held that the trial court's "actions here are not inconsistent with the protections afforded attorneys" because the funds were not available to the plaintiff at the final disposition of the matter.