June 22, 2012
A juvenile court judge has been reprimanded by the Iowa Supreme Court as a result of an alcohol-related traffic offense.
The judge was stopped driving home from a charity event. There was a open beer container and whiskey in the car. His breath alcohol content was .135.
The court noted that the judge was "polite" to the police and did not try to use his judicial office to avoid responsibility. (Mike Frisch)
The Most Dangerous Idea In The History Of The District of Columbia Bar
Have I got your attention?
I have been a member of the District of Columbia Bar for over 37 years. For nearly half that time I served as a disciplinary prosecutor, i.e., an employee of the Bar. In other words, I've been inside the factory and seen how the sausage is made.
My experiences have long since persuaded me that the most fundamental tenet of any credible lawyer regulation system is the absolute independence of the bar counsel and adjudicators from the influence of the organized Bar. Indeed, the commentary to section two of the ABA Model Rules of Disciplinary Enforcement specifies that "[t]he disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for...compelling reasons [of impropriety or its appearance]." To me that is the gospel.
This is because the professional privilege of self-regulation carries special responsibilities that are plainly inconsistent with the interests of a lawyer's guild.
As the Bar has acknowledged in its most recent Strategic Plan (which can be found linked to its Jerry Mcguire inspired Mission Statement), part of its "core ideology" is to "safeguard the professional interests of the members of the Bar." The disciplinary function has an entirely different purpose -- to weed out the bad apples without fear or favor.
When I speak of the Bar, one must understand that I'm not talking about its membership. The membership has no real say in anything the D.C. Bar proposes or does. Rather, the Bar acts through an elected, limited term-serving Board of Governors("BOG"). The real Bar, in my view, is the deeply entrenched, well paid senior professional leadership of the organization. It is my experience that one does not get on the BOG or any other Bar committee without the blessing and support of this senior leadership. That is where the power truly resides.
So when the BOG engages in the most unprecedented and unwarranted stealth power grab in the Bar's history, it is my view that the senior administrative staff is responsible for the action and should be held accountable.
That is precisely what took place on June 18, 2012.
The BOG sent a letter to the Court of Appeals proposing an amendment to the rules of disciplinary enforcement ("Rule XI") that would grant the BOG complete authority over the bar discipline budget.
This action, so far as I can determine, was taken with no notice to the membership. There were no announcements, no hearings, no opportunities to comment, no nothing. Just a three page letter from the BOG seeking to "clarify" the existing rules by granting it full and plenary authority over the disciplinary system's budget and expenditures.
In the past, it has been recognized that amending Rule XI is a serious business and a public trust. It was only done after careful study and deliberation. Here, the BOG seeks to fundamentally change the nature of the system and treats it as a 'housekeeping" measure, apparently hoping that no one will notice what they are doing or understand the implications of the rule change.
If this proposal is adopted, it is easy to imagine the parade of horribles that could follow.
Want to make it harder for the bar counsel to prosecute cases against immigration attorneys? Easy. Cut the interpreter budget. Want to make it harder to prosecute complex fraud cases against "uptown" attorneys where the witnesses are not local? Not a problem. Cut the travel and expert witness budget. And on. And on.
Amazingly, this proposal is not even available on the bar's web page. I can't link to the BOG letter because the Bar's web page contains not a single mention of this unprecedented power grab.
As to the genesis of this idea, the letter states that the BOG approved the amendments at a May 8, 2012 meeting. Disciplinary authories were permitted to comment at a meeting six days later. On June 12, the BOG "voted to go forward to recommend the rule amendments."
In fairness, there should be budgetary oversight of all the decisions concerning the use of mandatory bar dues. Not just of the disciplinary budget, but also of the bar administration expenses - CLE, travel, salaries of bar executives, lawyer counseling, etc. etc. There also should be transparency in that the detailed budget should be readily available to the membership. Then, if I or anyone else thinks there is wasteful or unneccessary spending, it can be addressed.
No interest (save for resolving an apparent turf war in favor of the Bar's senior leadership) is served by this proposal. The BOG does not deign to explain to the Court why the change is either advisable or needed. The BOG states only that the measure would "ensure accountability for expenditures of Bar funds by the disciplinary system."
Well, I can only hope that what is sauce for the goose is sauce for the gander. I sincerely doubt that the BOG or the Bar's senior administrators want to account to the membership for how they spend our dues. How do we bar members "ensure accountability"?
I trust that the Court of Appeals will recognize that thoughtful diagnosis should precede such major surgery.
All D.C. Bar members should care how such a proposal came to pass. All members also should demand that there be real transparency in the decision-making processes that are done in our name.
June 21, 2012
More Transparency In Illinois
Last week, I commented that the web page of the North Carolina State Bar was the only place where an attorney's answer to disciplinary charges could be found on line.
Well, that is no longer true.
Now the web page of the Illinois disciplinary system will provide links to answers as well as complaints.
Kudos to Illinois.
Were they reading this blog? I'd like to think so. (Mike Frisch)
Negligent Romance With Client Draws Consent Discipline
The Arizona Presiding Disciplinary Judge has accepted an agreement for discipline and imposed a suspension of 60 days followed by probation for two years. The probation will be monitored by two programs of the State Bar.
The attorney had failed to respond to the bar's investigation and "negligently failed to determine the existence of a conflict of interest by becoming romantically involved with his client that he was representing in a dissolution matter, and negligently failed to properly maintain his trust account in accordance with trust account rules." (Mike Frisch)
No Lesser Sanction
The Michigan Attorney Discipline Board has found no basis to reverse the action of a hearing panel in a case involving allegations of misappropriation.
The hearing panel concluded that misappropriation is a per se offense and ordered disbarment.
The attorney appealed, claiming that this ruling had "precluded him from from introducing evidence of his intent in handling estate funds at issue in this matter, and that the discipline imposed was too severe."
The board held that the attorney's "claimed inadvertence" was properly considered in the mitigation phase of the proceeding but did not warrant any lesser sanction than that imposed by the hearing panel. (Mike Frisch)
Conviction Leads To Disbarment
The Indiana Supreme Court has disbarred an already suspended attorney who was convicted of three counts of felony theft of client funds and dishonest conduct.
The attorney was admitted in 1989. He was suspended for at least three years in 2008 for writing unauthorized checks on his law firm's trust account and false statements in the bar investigation. He was later found in contemprt for practicing while suspended and fined.
The criminal charges that led to disbarment were "based on [his] exercising unauthorized control over funds in excess of %17,000 belongiong to 24 clients or former clients." (Mike Frisch)
Forget The Titan
A former "titan" of New Jersey politics was disbarred by the District of Columbia Court of Appeals as a result of his conviction of offenses that involved moral turpitude per se.
NJ.com reported on the conviction and sentencing:
Former Sen. Wayne Bryant, once a titan of New Jersey politics, was sentenced Friday to four years in federal prison for trading his clout as budget chairman for a low-work job to boost his taxpayer-funded pension...
A jury convicted Bryant (D-Camden) of 12 counts of pension fraud and bribery eight months ago, after a high profile trial that exposed a secretive and easily manipulated state budget process.
Bryant, who left office in 2007, helped steer $10.5 million in state grants to his employer, a school within the University of Medicine and Dentistry of New Jersey. Now he will have to pay $113,167 in restitution to UMDNJ and a $25,000 fine.
[Judge Freda] Wolfson said Bryant gave up his impartiality as a legislator when he accepted the low-show, $35,000-a-year job at UMDNJ in exchange for his influence, even if he intended to help his constituents by steering money to the school.
"It was the manner by which it was undertaken to subvert the system," the judge said.
Wolfson also chided Bryant for his "low-show" job as a part-time attorney for the Gloucester County Board of Social Services - which helped to raise his pension from $28,000 to $81,000 a year. She said his actions were improper, despite his argument other attorneys also sent law firm associates to complete such work.
"It won't fly," Wolfson said. "Because ultimately to obtain a pension you have to do the work."
In D.C., crimes of moral turpitude must result in disbarment. Where a crime involves moral turpitude per se, the sanction is imposed wirthout any hearing. (Mike Frisch)
June 20, 2012
Both Victim And Judge
A judge who held a hearing and set bond for the defendant in a case where he was the victim has been publicly reprimanded by the Tennessee Court of the Judiciary.
The judge's office had been burglarizd and valuable items, including a firearm, were taken. The judge received information concerning an alleged perpetrator and signed an arrest warrant in the matter. The defendant appeared before the judge and was released on personal recognizance.
The judge agreed that it was improper for him to conduct the proceeding.
Timesfreepress.com had this report on the investigation of the burglary. (Mike Frisch)
Court Rejects Challenge To School Discipline For Facebook Post
The Minnesota Supreme Court has held that the University of Minnesota did not violate a student's free speech rights in imposing discipline upon her.
The student is enrolled in the Mortuary Science Program. She posted Facebook statements described as "satirical commentary and violent fantasies about her school experience."
The school conducted a proceeding and determined that she violated the student conduct code in that she failed to follow rules that govern the "privilege of access to human cadavers."
The sanction imposed was a failing grade in an anatomy lab course, and other conditions that included probation for the remainder of her time as a student.
The posts at issue violated a policy signed by students to respect their cadaver. The policy specifically prohibited cadaver-related blogging.
The student posted four items, some of which referred to her cavader as "Bernie."
The last post:
Realized with great sadness that my best friend Bernie will no longer be with me as of Friday next. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye Bye Bernie. Lock of hair in my pocket.
She testified that her uniquely challenging circumstances (set forth in the opinion) cause her to use sarcastic and dark humor to deal with depression. She did not intend her posts to be seen outside of her group of friends.
The court concluded that the University's policies regarding discipline of students for program policy violations was narrowly-tailored and directly related to standards governing aspiring morticians.
The court did not address the separate question of whether the University can discipline a student for the violent "fantasies" expressed on the Facebook page. The disciplined student had brought the issues and posts to the attention of the media during the investigation.
The unanswered question is an exceptionally important one to school administrators everywhere. The matter was brought to the attention of school administrators by students who read the posts and feared for thoer safety after reading statements about such things as using and concealing sharp embalming tools.
Attorney Reinstated After Suspension For Deposition Misconduct
The South Carolina Supreme Court has reinstated an attorney who had been suspended for six months in 2011.
The underlying suspension matter involved a criminal complaint brought by the attorney's ex-wife and his subsequent conduct during a civil suit:
...after the criminal charges were dismissed, respondent filed a pro se action against the City of Columbia alleging false arrest. In the course of representing himself in the matter, respondent subpoenaed Witness A, a former neighbor and long-time friend of both he and his former wife, to give a deposition. Witness A was not a witness to any of the matters out of which the criminal charges against respondent arose; however, Witness A had provided an affidavit in support of respondent's former wife during the divorce proceeding. Respondent also subpoenaed two other former neighbors who had supported his former wife during the divorce proceedings. Respondent admits he subpoenaed the three witnesses to take their depositions as he believed that they might have information regarding the allegations of criminal wrongdoings made by his former wife. Respondent fails to explain why the testimony of any of these witnesses was pertinent to his suit against the City.
Over the course of two days, respondent deposed Witness A for over five hours, including breaks. Respondent admits he asked improper questions during the deposition. He further admits that there were times when he talked over the deponent and there were instances where he did not let Witness A finish his answer.
In addition, respondent admits he asked a number of improper questions of Witness A. In particular, he asked Witness A about his sexual orientation and whether he had been tested for HIV. He also asked Witness A whether he had Alzheimer's Disease when the witness' recollection was incomplete. Respondent admits the question should not have been asked in this fashion.
Respondent regrets and apologizes for his questions during the deposition. He submits that the stress of his divorce and of deposing a former friend who had sided with his former wife in their divorce caused his emotions to get the better of him.
Respondent has since signed a Settlement Agreement and Release and Stipulation of Dismissal concluding the matter against the City of Columbia and its police department.
The court's order followed the attorney's filing of an affidavit requesting reinstatement. (Mike Frisch)
Gone To Texas
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today imposed an indefinite license suspension against attorney Vinh Chi Trieu, who resides in Houston, Texas, but is licensed to practice law in Ohio. Because he is not licensed to practice in the state courts of Texas, Trieu has limited his practice there to federal immigration cases.
In a 7-0 per curiam decision announced today, the court adopted findings by the Board of Commissioners on Grievances and Discipline that Trieu admitted accepting retainers from six clients in immigration cases but concealing those clients from his employer and keeping more than $20,000 he received from them for his own use. Trieu also admitted that he altered one of the retainer checks to add himself as a payee, lied to two clients about the status of their cases, and in several cases failed to earn the full fees he had collected but did not refund the unearned portions of the retainers to the clients.
Trieu also admitted that he took four cash advances against a law-firm credit card and used the funds for personal expenses unrelated to any client representation, but falsely attributed those charges to a client in his expense reports.
The court adopted the board’s conclusion that Trieu’s conduct violated the Texas attorney discipline rules that prohibit conduct involving fraud, deceit or misrepresentation and neglect of an entrusted legal matter, and that require an attorney to promptly refund any unearned legal fees to a client upon termination of the lawyer’s representation.
Pursuant to its authority over all attorneys admitted to practice in this state, the court indefinitely suspended Trieu from the practice of law in Ohio.
The court's opinion is linked here. (Mike Frisch)
One Order, Two Reprimands
The Maine Supreme Court imposed two public reprimands in one order in matters investigated sua sponte by disciplinary counsel.
The first matter involved the attorney's failure to file a required affidavit after he was placed on administrative suspension; the second involved income tax violations.
The attorney suffers from depression and has withdrawn from practice. He intends to resume only after he is medically cleared to do so. (Mike Frisch)
June 19, 2012
An Offer An Attorney Can't Refuse
The Delaware Supreme Court has imposed a public reprimand of an attorney for a series of letters and actions designed to decline appointments in Family Court matters.
The court adopted and appended the findings of the Board on Professional Responsibility, which noted:
...in all three appointments at issue in this ODC complaint, the court appointed the Respondent, giving him the option to obtain substitute counsel. The Respondent instead asked the Court to be allowed to withdraw as counsel. The Court denied Respondent's request. The Respondent wrote the Court, asking that the Court state on the record and to the client that the Court was appointing, essentially, ineffective counsel. In two of the cases where the Court still did not do as the Respondent wished, the Respondent contacted the client and told the client that he was, essentially, wrong for the part, but the Court was going to make him, an inexperienced, unskilled attorney, represent the client anyway, and then told the Court what he told his client. In one case an indigent client's mother retained private counsel. In each case the Respondent sought to avoid the appointment, and persisted after his motion was denied.
The attorney also tried this argument: "Even though a foot surgeon and brain surgeon are both doctors, you would not want a foot surgeon to perform your brain surgery."
His practice focus was the the area of business law, although he had some prior Family Court experience.
The board rejected the suggestion that the confidentiality of the bar proceeding was violated, although the attorney's "unique style of correspondence and continued efforts to avoid appointment could have been the subject of courthouse chatter..."
The board found that a presentation to bar members about the duty to accept appointments did not identify the attorney, who had not been "publicly pilloried" as his counsel had suggested. (Mike Frisch)
Ohio Supreme Court Rules On Tressel Document Disclosure
From the Ohio Supreme Court:
The Supreme Court of Ohio today issued a limited writ of mandamus ordering Ohio State University to provide ESPN with several documents related to the 2011 NCAA investigation of football coach Jim Tressel that the university had previously refused to provide to the network in response to public records requests.
However the court declined to order disclosure of most of the records sought by ESPN, finding that the requested documents fell within exceptions to the state Public Records Act for documents covered by attorney-client privilege and documents that may not be disclosed under the federal Family Educational Rights and Privacy Act (FERPA).
In today’s 7-0 per curiam opinion, the court also found that OSU officials had committed “per se” violations of the Public Records Act by failing to explain how ESPN could modify some of its record requests after the university had rejected them as “overbroad,” and by erroneously stating that the university was not required to disclose records related to an ongoing NCAA investigation. Because ESPN’s complaint did not ask the court to award statutory damages or order other remedial action based on those alleged violations, the court limited its ruling on those issues to making official findings that violations had occurred.
The court denied ESPN’s request for an award of attorney fees “(b)ecause Ohio State complied with the vast majority of its obligations under R.C. 149.43 in responding to ESPN’s records requests, and ESPN’s claims are largely without merit.”
The court noted that, in the weeks following a March 8, 2011 news conference at which Tressel admitted that he had failed to inform his superiors after learning about possible NCAA rule violations by OSU players, the university received 21 separate public records requests from ESPN and provided more than 700 pages of documents in response to those requests. The university declined to provide certain additional documents, including some communications between athletic department officials and the NCAA addressing the investigation of Tressel, documents identifying persons officially barred from access to student athlete pass lists, and communications to or from university officials that mentioned the name of Ted Sarniak, a Pennsylvania man who had been a friend and advisor to Terrelle Pryor, one of the football players implicated in the alleged rule violations.
In July 2011, ESPN filed an original action in the Supreme Court seeking a writ of mandamus to compel OSU to provide copies of all the requested documents. While that action, which is resolved by today’s decision, remained pending, the parties continued to negotiate, and OSU provided ESPN with some additional documents, but continued to deny access to others.
In rejecting ESPN’s argument that the exception to the Public Records Act for records that may not be disclosed under a state or federal law does not apply to FERPA, the court wrote: “ESPN argues that FERPA does not prohibit the disclosure of the requested records by educational agencies and institutions like Ohio State − it merely penalizes those educational agencies and institutions that have a policy or practice of permitting the release of those records without parental consent by withholding federal funding. ESPN’s contention lacks merit. ... ‘(A) participant who accepts federal education funds is well aware of the conditions imposed by the FERPA and is clearly able to ascertain what is expected of it. Once the conditions and the funds are accepted, the school is indeed prohibited from systematically releasing education records without consent.’”
“Ohio State received approximately 23 percent of its total operating revenues − over $919 million − in the 2010-2011 academic year from federal funds, and it is estimated that the university will receive the same amount of federal funds in the 2011-2012 academic year. Therefore, Ohio State, having agreed to the conditions and accepted the federal funds, was prohibited by FERPA from systematically releasing education records without parental consent. This result is consistent with the holdings of other state courts that have addressed this issue.”
“ESPN asserts that FERPA is inapplicable to the records responsive to its requests for documents related to Sarniak and the prior NCAA investigations because these records do not constitute ‘education records.’ ... ESPN relies on language from this court’s opinion in State ex rel. Miami Student v. Miami Univ. (1997), in which the court granted a writ of mandamus to compel the disclosure of student disciplinary proceedings for 1993 through 1996 by reasoning that because the cases, which involved infractions of student rules and regulations, were ‘nonacademic in nature,’ the records were not ‘education records’ subject to FERPA.”
“Following our decision in Miami Student, however, the United States Court of Appeals for the Sixth Circuit held (in United States v. Miami University, 2002) that student disciplinary records were education records subject to FERPA and permanently enjoined Miami University and Ohio State from releasing records in violation of FERPA. ... The court held that ‘[u]nder a plain language interpretation of the FERPA, student disciplinary records are education records because they directly relate to a student and are kept by that student’s university. Notably, Congress made no content-based judgments with regard to its “education records” definition.’”
“Upon consideration of our opinion in Miami Student and the Sixth Circuit Court of Appeals’ opinion in Miami Univ., we agree with the Sixth Circuit and hold that the records here generally constitute ‘education records’ subject to FERPA because the plain language of the statute does not restrict the term ‘education records’ to ‘academic performance, financial aid, or scholastic performance.’ Education records need only ‘contain information directly related to a student’ and be ‘maintained by an educational agency or institution’ or a person acting for the institution ... The records here − insofar as they contain information identifying student-athletes − are directly related to the students.”
Following its own in camera inspection of records that OSU had withheld as not disclosable under FERPA, the court determined that a few of those documents should have been provided to ESPN after personal student information had been redacted.
The court wrote: “An e-mail chain between Tressel, the Ohio State athletics department official in charge of compliance, attorneys, and other officials scheduling a meeting includes no personally identifiable information concerning any student-athlete. In e-mails to schedule a meeting to formulate a compliance plan for one of the student-athletes, aside from the name of the student-athlete and a person who agreed to attend the meeting, no personally identifiable information is included. Another document refers to one person’s request to obtain a disability-insurance policy on behalf of a student-athlete, and with those names redacted, the document would not contain personally identifiable information. There are also two letters from Ohio State’s athletics department compliance director to the parents of a student-athlete concerning preferential treatment. With the personally identifiable information concerning the names of the student-athlete, parents, parents’ addresses, and the other person involved redacted, FERPA would not protect the remainder of these records. ... Therefore, although the majority of the requested records were properly redacted before being provided to ESPN, ESPN is entitled to access to redacted copies of these few records that were completely withheld from it based on FERPA.”
“Ohio State properly withheld the remaining requested records based on attorney-client privilege. ... These records include requests from Ohio State officials for legal advice and interpretation, communications from or between the attorneys providing legal advice or information to Ohio State, and investigatory fact-finding related to the legal advice. ... ESPN’s contention that Ohio State cannot rely on attorney-client privilege to shield these records is unfounded because ‘an attorney does not become any less of an attorney by virtue of state agency employment.’ ... (T)here is no requirement in public-records mandamus cases that public offices or officials must ‘conclusively establish’ the privilege by producing agreements retaining agents or joint-defense agreements with attorneys representing other clients. Therefore, Ohio State properly withheld the remaining requested records based on the attorney-client privilege.”
The opinion is linked here. (Mike Frisch)
Ohio Refines Bar Discipline Default Rules
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has adopted rule amendments today that refine the existing default judgment process when a lawyer fails to comply with his professional duty to respond to disciplinary charges.
Recommended by the Board of Commissioners on Grievances and Discipline, the changes are intended to meet two goals:
- to encourage respondents to participate in the disciplinary process and do so more promptly.
- to protect the public from a lawyer who has ignored his or her duty to cooperate with the disciplinary authorities or is attempting to manipulate or delay the process while continuing to practice law.
The amendments to the Supreme Court Rules for the Government of the Bar of Ohio concern Rule 5 Disciplinary Procedure and new Section 6a Default; Interim Default Suspension. They take effect August 1. The amendments were published for public comment in March.
Under the amendments, the secretary to the board would be required to certify the respondent’s default to the Ohio Supreme Court “within a reasonable period of time after the date the answer was due.” The court would have the authority to order an interim default suspension that would remain in effect for at least six months. The interim suspension could be lifted if the respondent files a motion for leave to answer the formal complaint and if the court remands the matter to the board for hearing. The entity bringing the misconduct charges also could initiate default disbarment proceedings during the first six-month period if it believes the respondent’s misconduct is so serious as to merit the permanent loss of his or her license to practice law.
If no motions are filed within six months, the interim default suspension would be converted to an indefinite suspension that would prevent the lawyer from seeking reinstatement to the practice of law for a minimum of two years.
In addition, changes to the board’s probable cause process allow more flexibility in reviewing and certifying complaints. Specifically, probable cause panels would meet between full board meetings and eliminate delays between when complaints are filed and certified.
Click here to view the amendments.
June 18, 2012
Sanction Proposed For Class Action Local Counsel
An Illinois Hearing Board found that an attorney engaged in conduct prejudicial to the administration of justice in his conduct as local counsel to a Texas attorney in connection with a class action against Walmart.
The board rejected other ethics charges and recommends a reprimand:
In the present case, Respondent received a call from an out of
state attorney regarding a class action suit which was settling in Illinois.
Respondent discussed the suit with the attorney, reviewed the proposed
objections, agreed to act as local counsel and filed the objections. Respondent,
while acting in good faith, did not independently research the class action
suit, contact class counsel to discuss the terms of settlement or specifically,
discuss the process that class counsel used to determine the appropriate amount
Further, while not required, Respondent chose not to attend the
fairness hearing, where he would have had the opportunity to explain his position to Judge Vandewiele. However, Respondent's misconduct was limited to one case, he did not engage in any intentionally deceptive misconduct, he has not been previously disciplined and we do not believe he poses a threat to his future clients. We conclude that a reprimand will satisfy the purposes of the disciplinary process in that it will protect the public and remind attorneys of their obligation to perform their legal services diligently.
Retainer Agreement Sufficiently Clear
The New York Appellate Division for the First Judicial Department has affirmed a arbitrator's decision interpreting a retainer agreement in favor of a law firm:
In this proceeding alleging the law firm's breach of performance of a
retainer agreement, including breach of an alleged oral agreement to have a
particular attorney in its firm serve as lead counsel in an underlying matter,
the client failed to preserve its arguments that the law firm did not meet its
burden of demonstrating that the client fully understood the terms of the
parties' retainer agreement, and that public policy rendered such retainer
agreement unenforceable, as these arguments were not sufficiently brought to the
attention of the arbitrator. The client did not explicitly argue that the law firm
violated public policy by failing to ensure that the client fully understood the
terms of the parties' retainer agreement. It only argued that parol evidence was
needed because the retainer agreement, as written, was allegedly incomplete
Were we to reach the merits of the client's public policy argument, we would
find it unavailing. The parties agreed to arbitrate any disputes arising from
their retainer agreement, and there is no basis to conclude that the asserted
public policy ground (requiring a client's full knowledge and understanding of
an attorney-client retainer agreement) was violated. The arbitrator's award
dismissing the client's challenge to the legal fees that were due in accordance
with the express terms of the parties' amended written retainer agreement had a
rational basis, inasmuch as the Arbitrator found the written retainer arrangement to be unambiguous and to constitute a fully integrated agreement that would satisfy the requirements of 22 NYCRR 1215.1 The arbitrator's rejection of the sophisticated client's argument that sought inclusion of claimed oral terms that would modify the clear terms of the amended retainer agreement was rationally based in contract principles, including New York's parol evidence rule, and the criteria for allowing modification of written terms without altering them was not established by the client. Since the terms of the fully integrated retainer agreement were unambiguous, there was no basis to consider parol evidence.
Moreover, the client's argument that the arbitrator, in deciding the
dismissal motion, denied it "fundamental fairness" by refusing to accept the
truth of its allegations regarding the oral promise, including that the parties
intended this oral promise to be a component of the parties' retainer agreement,
thereby precluding it from offering evidence to demonstrate the parties'
understanding in regard to the alleged oral promise, is unavailing. It was
within the province of the arbitrator to find, as a matter of law, that the
retainer agreement was not ambiguous, notwithstanding the client's claims that alleged oral promises were intended to be added as components of the written retainer agreement. Since an arbitrator's award ordinarily will not be vacated even if founded upon errors of law and/or fact, there is no basis to vacate this award founded upon applicable contract principles.
Furthermore, the arbitrator appropriately rejected the client's attempt to
modify the clear terms of the parties' fully integrated retainer agreement.
There was no basis to conclude that the alleged oral agreements were merely
collateral to the retainer agreement (as amended), that they did not tend to
contradict the terms of the retainer, and that the oral modifications would
otherwise ordinarily be omitted from a writing. (citations omitted)
The Ultimate Issue
A plaintiff's verdict in a legal malpractice case has been reversed by the Georgia Supreme Court.
The court found error in the admission of expert testimony on causation:
...the second jury in a malpractice action is not deciding what the first jury would have done in the underlying case had the attorney not been negligent, but only what a reasonable jury would have done had the underlying case been tried without the attorney negligence alleged by the plaintiff. The second jury does this by independently evaluating the evidence in the underlying case as it should have been presented to determine whether it belives that the plaintiff has a winning case, not by deciding whether some prior jury may or may not have believed that the plaintiff had a winning case...the Court of Appeals was incorrect in its conclusion that the jury in a malpractice case was tasked with deciding an issue that could not be resolved by the average lay person. Because the jury in the malpractice case was not being asked to decide what a prior jury would have done, it was merely being asked to do what any jury in a discrimination lawsuit would do, which is, evaluate the evidence in the case and decide the case on the merits. This is a task solely for the jury, and that is not properly the subject of expert testimony.
The inadmissible testimony on the ultimate issue resulted in reversal of the judgment. (Mike Frisch)
No Reprimand For "Egregious, Improper And Appalling" Conduct
The Georgia Supreme Court has rejected an attorney's petition for the voluntary discipline of a Review Panel reprimand, concluding that "the State Bar focused its review [of the matter] too narrowly, giving too little weight to the seriousness of the many allegations that remain."
The State Bar had not objected to the petition.
The attorney had "filed complaints in intervention in two bond validation cases on behalf of himself and an entity he controls, Citizens for Ethics in Government, LLC."
He arranged to speak with the defendant developers outside litigation counseland the CEO of the management company. He was not aware that the conference call was recorded by the CEO:
[Petitioner] told them that he would not pursue the complaints in exchange for payment of 1% of the bond issuance amount (which would have amounted to $1.2 million).
The trial court was advised of the call and held a hearing as a result.
The trial court then "entered an order dismissing the complaints, approving the bond transactions and awarding attorneys' fees..." The petitioner and the entity were ordered to pay over $435,000 in fees and expenses.
The trial court's order stated that the conduct was "egregious, improper and appalling to the Court and the practice of law." (Mike Frisch)