June 8, 2012
Confidentiality And Defending Oneself In Bar Proceedings
The North Dakota Supreme Court has suspended two law partners for nine months for conduct involving mishandling of fees paid from their trust account.
The court summarized its holding:
Evidence that the balance of a trust account fell below the total amount held in
trust supports a finding that the lawyer violated N.D.R. Prof. Conduct
A lawyer is permitted to disclose information related to the
representation of a client when the lawyer is defending himself or herself in
any proceeding concerning the lawyer's representation of the client, including
disciplinary proceedings initiated by a third party.
A lawyer is required to comply with a hearing panel's order to disclose information related to the
representation of a client during a disciplinary proceeding after the lawyer
asserts all nonfrivolous claims to protect the confidential information.
The attorneys had objected to compelled discovery in aid of the bar investigation on confidentiality grounds.
The court held:
In this case, the hearing panel granted Disciplinary Counsel's motion to compel
but also limited the discovery request to help preserve client confidentiality.
The hearing panel's order on the motion to compel was "law" that required Dyer
and Summers to disclose the requested information, and Dyer and Summers were permitted to disclose the requested information under Rule 1.6(c)(5). Although Rule 1.6(c)(5) states a lawyer may reveal information relating to the representation of a client to comply with
other law or court order, the lawyer does not have discretion in deciding
whether to disclose the information because disclosure is required under other
law. See Adams v. Franklin, 924 A.2d 993, 997 (D.C. 2007). The hearing panel has authority to order the parties to disclose information for discovery in disciplinary proceedings, the hearing panel's order is law, and the parties are required to comply with the discovery orders.
Love Is Not a Contract
The New York Appellate Division for the First Judicial Department affirmed summary judgment to the defendant in a purported contract action:
The documentary evidence supports defendant's assertion that, contrary to
expecting compensation for performing renovations to certain properties owned by
defendant during the parties' romantic relationship, plaintiff performed the
renovations out of love and affection for defendant, and in an effort to make
We have considered plaintiff's remaining arguments and find them without
Censure And Shoplifters Anonymous For New York Attorney
An attorney who was convicted of shoplifting from Bergdorf Goodman was publicly censured and required to engage in treatment for one year by the New York Appellate Division for the First Judicial Department.
At the hearing, held on November 14, 2011, respondent testified on his own
behalf, and called his treating psychologist, Jonathan Wormhouldt, and a
character witness. He also introduced documentary evidence which included
character letters. Respondent admitted to eight acts of adult shoplifting. These
included art gallery thefts which were either not prosecuted or for which he
pled guilty to disorderly conduct (Penal Law § 240.20) and received an
unconditional discharge on May 20, 2010 at the time of the Bergdorf petit
larceny plea. In March 2011, he received an ACD and ten days of community
service, having been arrested for stealing an item from Key Food in January
2011. At the hearing, he admitted to two prior thefts from that store.
Respondent, who at the time of the hearing was 53-years-old, graduated from
college in 1981 and obtained a master's degree in public policy from in 1989.
After obtaining his undergraduate degree, respondent worked for various New York
City agencies and came to work for the Department of Housing Preservation and
Development (HPD), his current employer. He testified that although he wanted to
attend law school after receiving his master's degree, health issues prevented
his attending law school earlier, but he began attending Brooklyn Law School at
night, graduating in May 2002. Respondent currently works in an intergovernmental unit of the HPD where his primary responsibility is to monitor
federal legislation affecting grants received by his office and to ensure that
grant funds are used in accordance with federal statutes and regulations.
Dr. Wormhouldt, who has been treating respondent since July 2010 for his
shoplifting compulsion testified that respondent suffers from chronic,
long-term, low level depression resulting from various stressful events in his
life. Dr. Wormhouldt describes this depression as dysthymia and relates it to
the shoplifting compulsion. Respondent has been attending "Shoplifters
Anonymous" and has continued psychotherapy.
Based on his May 2010 disorderly conduct conviction (for the April 2009 art
gallery theft) and his January 2011 arrest, respondent received an Admonition
from the Committee in August 2011 for engaging in illegal conduct that adversely
reflected on his honesty, trustworthiness or fitness as a lawyer, in violation
of Rule 8.4(b), and for engaging in conduct involving dishonesty, fraud, deceit
or misrepresentation, in violation of Rule 8.4[c].
The attorney is subject to monitoring for one year by the bar's lawyer assistance program.
The New York Daily News has this report.
Ted Gallagher, 54, who works for the city Department of Housing Preservation and Development writing federal grant applications, has pleaded guilty to pilfering from groceries, art galleries and fine clothing stores.
Should "compulsive shoplifting" be considered a treatable condition and a mitigating factor? (Mike Frisch)
Sex With Client Draws Suspension
A suspension for six months without automatic reinstatement is the sanction imposed by the Indiana Supreme Court for misconduct in two matters.
One complaint involved the attorney's refusal to return an unearned fee and failure to respond to the ensuing bar complaint.
The other complaint involved his sexual relationship with a client who was separated from her husband and sought a protective order. The relationship started after the representation had commenced. The attorney "terminated both his sexual and attorney-client relationship with the client" and failed to respond to the bar grievance of the client's former husband.
The attorney has contacted the bar's lawyer assistance program and indicated that he would accept monitoring. He had a history of non-cooperation with the disciplinary process. (Mike Frisch)
June 7, 2012
False Billing Alleged
The Illinois Administrator has filed a complaint alleging false billings by a Chicago attorney:
In 2011, Respondent was employed by a law firm in Chicago. During his employment at the firm, Respondent prepared records of the time he expended on behalf of clients, and he knew that any time he recorded, unless it was edited out of the bills by another attorney, would be billed to the firm’s clients at an hourly rate of $250.
Between June 13, 2011 and June 30, 2011, Respondent was involved in reviewing documents for a project involving a client of the firm’s. During that time, Respondent recorded a total of 37.5 hours on the project. In July and August of 2011, Respondent performed little or no work on the client matter, but recorded 83.3 and 177.1 hours, respectively, on the matter. Respondent’s sixteen entries for July and 31 entries for August were limited to one of three similar descriptions of work he claimed to have performed, in amounts of time ranging from 3.5 to 6.0 hours each day.
Respondent’s description of the services he claimed to have provided in July and August, and the descriptions of the services he claimed to have provided, were false, because Respondent recorded time for services he did not actually provide in amounts that vastly overstated any actual amount of work he performed.
On August 31, 2011, the firm sent a bill to its client asking it to pay, among other charges, $20,825 for the 83.3 hours Respondent claimed to have expended on the client’s behalf in July. Respondent’s false billing was discovered before his false billings for August, totaling $44,275, were sent to the client. Respondent’s firm later waived the $30,250 it charged its client for Respondent’s purported work during June and July, 2011.
Today In Wrongful Death Litigation
The service issue involved a rafting guide who lived a "transient" lifestyle. In response to a summons left at his parent's house in West Virginia, he filed an affidavit claiming not to live there but rather on a boat docked in East Greenwich, Rhode Island. The plaintiffs responded that the self-serving affidavit failed to establish that service was defective.
The court agreed with the plaintiff, noting that the defendant guide claimed the parent's house as his residence on multiple forms filed with the West Virginia motor vehicle authorities.
In an unrelated matter, the New York Appellate Division for the Third Judicial Department affirmed dismissal of an estate's wrongful death action against New York State in a matter in which a visitor to Taughannock Falls State Park had walked past warning signs and was killed by falling rocks.
The incident that led to the litigation can be best understood through this photograph and story at NY Falls.com. (Mike Frisch)
Tardy Judge Took "Multiple, Lengthy Smoke Breaks"
The Florida Supreme Court has imposed a public reprimand of a judge for "unexcused, habitual tardiness" and an "inappropriate statement regarding religion."
The judge had stipulated to the tradiness charge. The complaint alleged that he was often late for court, did not conclude matters in a timely manner and offered litigants hearings on Fridays after 5 and Saturdays. It was also alleged that the judge took "multiple, lengthy smoke breaks."
The judge had made the following remark in a civil jury trial:
I don't know of anybody that's made a mistake--and except perhaps one, and for that we murdered him. You know, he was faultless and we murdered him for it. That's not politically correct, but I happen to believe in God --Christ is the intercessor."
He contended that the religious reference was an isolated instance that did not involve a judicial code violation.
The court here disagreed.
The judge also must write a letter of apology to the legal community and keep weekly time logs that must be submitted to the special counsel of the Judicial Qualifications Commission. (Mike Frisch)
Praise Where Praise Is Due
I neglected last week to applaud a decision of the District of Columbia Court of Appeals approving a consent disposition.
The attorney was the subject of client complaints in two matters that involved her representation in immigration matters. The two complaints were consolidated in one petition charging misconduct. The attorney and Bar Counsel negotiated a consent that involved a suspension of 120 days with 30 days suspended and one year's probation with conditions. The attorney will be required to serve the remaining 30 days if she violates the probation conditions.
A hearing committee accepted the consent and recommended that the Court adopt it.
The court did so, noting that the disposition was within the range of sanctions for comparable conduct.
This is how consent dispositions are supposed to work. (Mike Frisch)
Noted Attorney Reciprocally Suspended
The District of Columbia Court of Appeals has imposed reciprocal discipline of a two year suspension with all but 120 days stayed in a matter involving noted attorney and author Pierce O'Donnell. The sanction is based on discipline imposed in California.
LAWeekly blog had this report of the underlying criminal matter and California bar action:
The State Bar of California recently disciplined the master barrister - famous for representing Art Buchwald against Paramount Pictures in the "Coming to America" case and for getting more than $100 million from BP Arco in a pollution case - suspending O'Donnell for two months and placing him on probation for two years.
The suspension, imposed February 23, is connected to O'Donnell's 2006 conviction for five misdemeanor counts of using a false name in making political contributions, according to the state bar.
O'Donnell, who ran for the U.S. Congress more than 30 years ago, was accused of promising to reimburse his employees for contributions made to former LA Mayor James K. Hahn during the 2001 campaign after O'Donnell failed to raise a $50,000 pledge.
As a result, 26 people in or connected to O'Donnell's office coughed up campaign donations. The LA City Attorney later charged O'Donnell with 26 counts of using a false name in making political contributions; O'Donnell eventually pleaded no contest to five counts.
In his disciplinary decision, Judge of the State Bar Richard A. Platel noted that O'Donnell had no prior record of discipline over his 29 years in practice, "displayed spontaneous candor and cooperation," and "demonstrated remorse."
I was fortunate to meet Art Buchwald when I was a teenager and later as a adult. At the second meeting, he asked me what I did for a living. When I told him I was an attorney, his response: "Well, you didn't listen to me then." (Mike Frisch)
June 6, 2012
The Pennsylvania Supreme Court has imposed a five-year suspension of an attorney who appeared in a legal matter while suspended. The attorney used the false name of Cohen, rather than his true name, in the proceeding.
The court majority agreed with the view of the Disciplinary Board that found the misconduct to be serious, but not disbarment worthy:
...we believe that Respondent's knowing violation of his order of suspension, forgery of his employer's signature on his Entry of Appearence, intentional use of a alias before the Master to conceal his identity and deceive the Master, interception of a DB-7 letter addressed to his employer, involvement of a third party to deceive the Office of Disciplinary Counsel by asked for an extension of time to answer the DB-7 letter, and failure to self-report his misconduct are serious ethical breaches that should carry grave consequences.
Twp justices dissented, and would find that disbarment is the appropriate "grave consequence." (Mike Frisch)
A Long Way To Go
The Michigan Attorney Discipline Board has agreed with a hearing panel's determination to impose a 45-day suspension, nunc pro tunc to February 29, 2012, in a matter involving an incident that led to the attorney's conviction for three counts of controlled substances offenses, operating while intoxicated and attempted resisting and obstructing a police officer.
At the time of the offenses, the attorney was on disciplinary probation that required her to be alcohol and drug free. The suspension imposed here will be followed by probation with conditions for 18 months.
The crimes as described by the hearing panel:
...after arguing with her boyfriend the evening before, she went to Boyne City to visit a friend she had used with in the past where she obtained a variety of drugs and/or controlled controlled substances including morphine, Xanax -- her drug of choice, and a large amount of marijuana that would last her for "months." All that led to her arrest later that afternoon and the five criminal charges that are the basis for this proceeding. She has had a drug problem since at least 2004 and by her own admission she was using cocaine as far back as high school. While she is apparently now making a sincere effort to overcome her dependency addiction, she has a long way to go.
One Date Not Enough For Domestic Violence Conviction
The New Jersey Appellate Division has reversed a domestic violence conviction of a defendant who had assaulted another person while on a "birthright" trip to Israel.
The defendant had not known the victim prior to the trip. They "hung out" together on the evening in question at a bar with others and danced together. The "atrocious assault" took place later that evening in the victim's room. The defendant was convicted in Jersalem District Court.
The court here held that the interaction between the victim and defendant may have been a "date" but that they were not in a dating relationship, which is an element of the offense. (Mike Frisch)
Threats Get Attorney Suspended
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the law license of [a] Cincinnati attorney...for six months for violating the Rules of Professional Conduct in his dealings with a client who reneged on an agreement to pay [his] bill for legal services in a divorce case.
[The attorney] admitted that after the client received a distribution from her former spouse’s 401(k) account but failed to make a promised payment to him from the proceeds, then failed to return his phone calls and changed her cell phone number to avoid him, [he] went to the client’s apartment to demand payment. In the confrontation that ensued, [he] admitted that in front of the client’s six-year-old daughter he angrily threatened to file criminal charges against her unless she immediately went to her bank and withdrew funds to pay his bill. The client went to the bank but was so visibly upset that bank employees called police. [He] subsequently agreed to accept payment of a reduced amount.
In a 6-1 per curiam opinion, the court adopted findings by the Board of Commissioners on Grievances and Discipline that [his] actions violated the state disciplinary rules that prohibit an attorney from filing or threatening to file criminal charges to gain an advantage in a civil dispute, and from engaging in conduct that adversely reflects on the attorney’s fitness to practice law.
In rejecting the disciplinary board’s recommendation of a stayed license suspension as the appropriate sanction for [the] misconduct, the court found that [the attorney's] prior suspension for a previous disciplinary infraction, the vulnerability of his client, and the emotional harm she suffered outweighed mitigating factors in the case and merited an actual six-month suspension from practice.
The court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Justice Judith Ann Lanzinger dissented, stating that she would impose a six-month suspension with all six months stayed on conditions.
The opinion is linked here. (Mike Frisch)
June 5, 2012
Until Death Do Us Dissolve
In a lawsuit brought by the estate of a deceased attorney against her law partner, the New York Appellate Division for the First Judicial Department affirmed the denial of a motion to dismiss a count of the complaint:
Under New York law, partners owe each other a fiduciary duty. Defendants also owed a fiduciary duty to Yee's estate, as Yee's successor in interest. Plaintiff has sufficiently pled a claim for breach of fiduciary duty; paragraphs 18 and 19 of the complaint allege that defendant Donovan continues to operate the partnership in violation of the Partnership Agreement and failed to distribute Yee's interest to Yee's estate in accordance with the Partnership Agreement. Contrary to defendants' contention, plaintiff has alleged more than a mere accounting, and if defendants did not understand the separate causes of action, the appropriate remedy was to file a motion for a more definite statement under CPLR 3024(a). (citations omitted)
Ms. Yee died from injuries sustained in a small plane crash in California, reported here. (Mike Frisch)
A Family Affair
The New York Appellate Division for the First Judicial Department has given collateral estoppel effect to a decision of the United States District Court for the Southern District of New York and imposed a suspension of one year:
This matter stems from respondent's representation of Peter Costalas, who, along with his two brothers, James and John, were members of a family partnership that owned five buildings and twelve restaurants. Peter diverted millions of dollars in partnership finds and mortgaged buildings by use of forged signatures in order to cover losses incurred in connection with his personal trading in stock options. As a result, James and John commenced an action against Peter and his brokers. In August 1993, respondent negotiated an agreement on Peter's behalf in which Peter, among other things, assigned and transferred his interest in the partnership to John, and in return, was dismissed as a defendant in the litigation.
Thereafter, Vivia Amalfitano, James' daughter, purchased the partnership's remaining building and restaurant from John and James. In May 2001, respondent commenced an action in New York County, Supreme Court, naming Vivia and her husband, Gerard Amalfitano, Esq., as defendants, alleging that they defrauded John and James into conveying the partnership's remaining property and business, and that Peter was still a partner. The action was eventually dismissed during trial. Respondent then unsuccessfully appealed the trial court's order denying his motion to vacate (see Costalas v Amalfitano, 23 AD3d 303 ).
In March 2004, the Amalfitanos commenced the above-mentioned federal action against respondent alleging that respondent's commencement and prosecution of the state court action against them constituted a violation of Judiciary Law § 487.
The federal court found that the attorney knowingly sponsored perjured testimony and engaged in dishonest conduct. (Mike Frisch)
Oh, That Rolex
The Massachusetts Supreme Judicial Court for Suffolk County has suspended an attorney for three months.
The attorney had filed for personal bankruptcy. He checked "NONE" under the column that required the listing of furs and jewelry, thereby knowingly misrepresenting his assets--a Rolex watch.
He also undervalued his bank account and his automobile.
He stipulated to the facts and conclusions of law regarding the above-misconduct. (Mike Frisch)
Indefinite Suspension For Tampering With Court File Conviction
A Massachusetts attorney has been indefinitely suspended as a result of misconduct in connection with a murder case.
According to a summary on the web page of the Board of Bar Overseers, the attorney suffered from a bipolar disorder that was disclosed in his application for bar admission. The misconduct involved a murder trial in Salem Superior Court. He was not an attorney in the murder trial, but "had a personal connection with a relative of the defendant's."
The attorney somehow secured and removed the court file, "and had it destroyed so that it would not be available at the...trial." He was convicted of tampereing with an official record and served 64 days of an eighteen-month sentence.
The misconduct was substantially affected by his disorder.
ABA Journal had this report. (Mike Frisch)
A District of Columbia bar disciplinary case that started out as an informal admonition, which the attorney rejected, has now resulted in a hearing committee recomendation for a two-year suspension with fitness.
The bar case involved two matters, one of which related to litigation between the accused attorney and his residential landlord.
The sanction was influenced by findings that he had given false testimony in the disciplinary proceedings and displayed a defiant and unrepentant attitude
Throughout the course of this disciplinary proceeding, Respondent resorted to some of the same improper tactics that he employed in the underlying matters. For example, he filed a meritless motion to quash a subpoena for documents and records clearly relevant to matters investigated by Bar counsel which he had previously agreed to provide and, after his motion was denied and the deadline for producing the documents had passed, filed a motion seeking to re-litigate the issues already decided...
When asked if he would do anything differently, he testified he would not.
The attorney also walked out of the hearing on the third day and called part of the case "a collosal waste of [his] time."
The case is In re Andre Barber and can be found through this link. (Mike Frisch)
May Resigned Attorney Serve As Mediator?
A decision from the Massachusetts Supreme Judicial Court:
We address whether an attorney (petitioner) whose resignation from the practice of law was accepted as a disciplinary sanction may now work, either for pay or on a volunteer basis, as a mediator. We conclude that, although mediation does not in all circumstances constitute the practice of law, an attorney who has resigned from the practice of law while the subject of disciplinary investigation under S.J.C. Rule 4:01, § 15, as appearing in 425 Mass. 1319 (1997), or who has been disbarred or suspended from the practice of law under S.J.C. Rule 4:01, § 8, as appearing in 453 Mass. 1310 (2009), may be prohibited from serving as a mediator when to do so would be perceived by the public as an extension of the attorney's practice of law, or when the conduct of the mediation is so closely related to the practice of law as to constitute legal work within the meaning of S.J.C. Rule 4:01, § 17(7), as amended, 453 Mass. 1307 (2009). We remand to the county court for a determination whether it is appropriate, in light of our opinion, that the petitioner engage in mediation, and, if so, to impose any conditions necessary to protect his mediation clients and to ensure the integrity of the legal profession.
It may be inferred from the record that, prior to his resignation, the petitioner had not engaged in mediation, and that he does not propose to provide mediation services to attorneys with whom he previously was engaged in the practice of law or to conduct mediation in the same offices from which he previously conducted his law practice. We therefore focus our discussion on whether mediation as performed by the petitioner will invoke his professional judgment in applying legal principles to address the individual needs of mediation clients.
The record does not permit a definitive conclusion regarding the extent to which mediation is performed by lawyers in the Commonwealth. Based on a review of literature discussing lawyer mediation, and from the prevalence of rules and standards directed to the practice of mediation by lawyers, however, it appears that many lawyers do offer mediation services. As also appears from these sources, the extent to which a lawyer mediator draws on his or her legal training and experience may depend on the approach or technique employed. Thus, although court-connected mediation in the Commonwealth seems to fall within the scope of "facilitative" mediation (which does not call on the mediator's exercise of professional judgment as a lawyer), a lawyer may also engage in "evaluative" mediation, in which a neutral evaluates the merits of the case and may offer an opinion about its worth. See generally Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negotiation L.Rev. 7, 26-34 (1996).
In the context of bar discipline cases, therefore, mediation may constitute legal work such that, following disciplinary resignation, suspension, or disbarment, an individual may engage in it only in certain circumstances and under specified conditions. Although we do not preclude the possibility that the petitioner's proposed service may be appropriate, we are unable, on the record before us, to determine whether the petitioner should be permitted to serve as a mediator prior to any future reinstatement as a member of the bar of the Commonwealth.
The case is In the Matter of Bott, decided today. (Mike Frisch)
Scoundrel Time Not Yet Past
The New York Court of Appeals has held that an historian is entitled to transcripts of interviews conducted by the Board of Education exploring Communist activities of New York City teachers.
The court concluded that the access will not include materials where the interviewee was promised confidentiality:
...the diminished claims of privacy must be weighed against the claims of history. The story of the Anti-Communist Investigations, like any other significant part of our past, should be told as fully as possible, and historians are better equipped to do so when they can work from uncensored records. Petitioner, or any other historian trying to trace the course of the investigation, would obviously face a serious handicap if required to work with the redacted transcipt from which we quoted above.
We strike a different balance, however, when we consider petitioner's request for the names of interviewees who were promised that no one would find out they were being interviewed. We find it unacceptable for the government to break that promise, even after all these years. We quoted earlier in this opinion from an interview of a teacher who feared her son might learn she was being questioned about Communist activities. It is unlikely she is still alive --the interviews show that her teaching career began in 1934 or earlier -- but her son may be. The risk that he would be hurt or embarrassed by learining now of his mother's interview may be small, but a representative of New York City's government solemnly assured her that the government would not subject him to that risk. Perhaps there will be a time when the promise made to her, and others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.
The Board of Education investigation into teachers with supposed communist ties began as early as 1936 and continued as late as 1962. Most of the 1,100 interviews took place in the 1940s and 1950s. (Mike Frisch)