August 4, 2012
A Bridge Too Near
The Florida Supreme Court has publicly reprimanded a judge who was observed driving in an erratic manner and ultimately crashed into a bridge.
When the police arrived, she explained that the accident was as a result of her talking on a cell phone. The officer suspected that the real cause was alcohol intoxication.
[The judge was] unable to tell the officer where she was coming from or going, but she later recalled that she may have been at a restaurant.
Initially, the judge refused to exit the vehicle. She also refused to submit to sobriety tests in the field and at the county jail.
The judicial discipline matter was resolved by stipulation. (Mike Frisch)
The web page of the North Carolina State Bar has a disposition in a matter:
Gary Lawrence of Southport made sexual comments to and inappropriately touched two clients. He was suspended for three years. After one year he may apply for a stay of the balance upon compliance with numerous conditions, including that he must provide certification from a psychiatrist who specializes in treating sexual offenders in the professions that he does not suffer from any condition creating a predisposition to engage in inappropriate sexual behavior.
From our earlier coverage:
The North Carolina State Bar has filed charges against an attorney alleging that he had made inappropriate remarks, sought sex and had sexual relations with a number of female clients. The charges contend that he followed one client home and entered the house without an invitation. There are instances where he is alleged to have suggested that his efforts on behalf of client would be enhanced by sexual relations.
In another representation, he is alleged to have had sexual relations with a client in a wooded turnoff on Grandfather Mountain.
August 1, 2012
Disciplinary Charges Involve Bankruptcy Fraud
The Illinois adminstrator has filed a disciplinary complaint based on charges arising from the attorney's guilty plea to bankruptcy fraud.
In noting the criminal charges, the ABA Journal reported that the attorney formerly was a Kaye Scholer partner:
A former partner of Kaye Scholer has been indicted for bankruptcy fraud for not disclosing his involvement with a major creditor before he left the law firm in 2005.
Stephen Garcia, now 48, allegedly failed to disclose, as required, his considerable involvement with New York City-based Albert Fried & Co., a major creditor of Geneva Steel Holdings Corp. when he represented the Utah steel mill in a Chapter 11 bankruptcy matter, reports Crain's Chicago Business.
“I am very disappointed that these charges were brought, which I deny,” says Garcia, who is now a sole practitioner in Chicago, in an e-mail to the business publication.
Bankruptcy court records show Kaye Scholer settled a malpractice case over the Geneva representation last year, by paying $2 million, refunding $1.7 million in legal fees and waiving several hundred thousand dollars more, Crain's reports.
Michael Solow, who co-chairs Kaye Scholer's executive committee, declined to discuss the matter with Crain's, saying that firm has resolved the Geneva case and is not involved in any related matter.
The South Carolina Supreme Court has imposed a public reprimand and restitution of an attorney who had substantially overbilled for state-compensated representation of indigent clients.
The attorney had billed more than 24 hours a day on fourteen days.
He attributed his acknowledged overbilling to a failure to keep contemporaneous records. (Mike Frisch)
When A Lawyer Goes Missing
The Maine Supreme Judicial Court addressed an issue that rarely receives attention in published opinions--the appropriate compensation paid to a receiver appointed to deal with the clients of a lawyer gone missing in action.
The court noted that the receivership was of an "unprecedented scope" and that the appointed attorney rendered "outstanding" service. The receiver attempted to contact 623 clients of the attorney and received responses from 333 of them.
The court here identifies six factors that will be considered in determining the amount to be paid to the receiver. (Mike Frisch)
July 31, 2012
Don't Knock The Block (Billing)
An award of fees to an attorney who sued his client in a matrimonial case was affirmed by the New York Appellate Division for the First Judicial Department:
"Where there has been substantial compliance' with the matrimonial rules, an attorney will be allowed to recover the fees owed for services rendered, but not yet paid for" (Edelman v Poster, 72 AD3d 182, 184 , quoting Flanagan v Flanagan, 267 AD2d 80, 81 ). The applicable rule, 22 NYCRR 1400.3, mandates that an attorney in a matrimonial matter file a copy of the signed retainer agreement with the court, along with the statement of net worth. Here, the record shows that a copy of the executed retainer was filed with the court on May 14, 2004, along with the updated statement of net worth. Even if plaintiff, as substituted counsel, should have filed the retainer within 10 days of its execution, he substantially complied with the requirements by filing the executed copy with the updated statement of net worth. Although it would have been better practice for plaintiff to have put proof of the filing in evidence on his direct case, his failure to do so does not change the fact that he substantially complied with the rule (see Kurtz v Kurtz, 1 AD3d 214, 215 ).
Defendant also argues that plaintiff's billing practices and willful spoliation of evidence should result in sanctions, and dismissal of his claims. Specifically, defendant argues that block billing was improper and that "task billing," which lists the time for each separate task and is an enhanced level of billing, should have been used. However, block billing is common practice among law firms and neither 22 NYCRR 1400.3 nor the retainer agreement calls for task based billing. Regarding the spoliation of evidence allegation, defendant contends that plaintiff intentionally destroyed a particular attorney's individual time sheets, thereby preventing her from using those records to impeach plaintiff. Plaintiff testified at trial that the information from that attorney's individual time sheets was entered into the firm's time entry system, then reviewed by him and incorporated into the firm's bills to defendant. In any event, the time sheets were not key evidence, and thus their alleged destruction did not deprive defendant of the ability to defend against plaintiff's claim for fees(Coleman v Putman Hops. Center, 74 AD3d 1009 , lv dismissed 16 NY3d 884 ). Accordingly, a spoliation sanction is not warranted.
The New York Appellate Division for the First Judicial Department has accepted an attorney's resignation and struck him from the roll of attorneys for the following misconduct:
Respondent acknowledges that the law firm in which he was a partner until June 30, 2010, filed a complaint against him with the Committee alleging that from January 2009 to June 2010, respondent used law firm operating funds belonging to his law partner and himself to augment settlement awards to 15 clients for an approximate total of $169,366.62. The complaint states that respondent covered up his neglect of the 15 legal matters by misrepresenting their true status and settlement amounts to several clients and his law partner.
No Emotional Injury Damages For Angel's Death
The New Jersey Supreme Court has held that a plaintiff may not recover damages for the emotional injury caused by witnessing the death of her pet dog, a "maltipoo" named Angel.
The court concluded that a pet is property and not the equivalent of a family member.
The defendant's large dog had picked the deceased up by the neck, shook it several times and dropped it, causing the death. (Mike Frisch)
July 30, 2012
Bank Not Liable For Attorney's Misappropriation
In a case where an attorney had allegedly misappropriated $5 million wired to his trust account by a client, the Massachusetts Supreme Judicial Court affirmed the dismissal of a negligence action brought by the client against the attorney's bank:
When we promulgated Mass. R. Prof. C. 1.15(h), we intended that the protection of trust funds be accomplished by the board through its disciplinary process, not by the beneficiaries of trust funds through a new remedy in tort. See Binns v. Board of Bar Overseers, 369 Mass. 975, 976 (1976) ("The board was established by this court ... acting in accordance with its power to supervise the conduct of attorneys, and the board exists as the disciplinary arm of this court"). The agreement mandated by the rule requires a bank to provide notice of dishonored instruments to the board, and does not establish any procedure to ensure that notice be provided to an attorney's clients whose funds are held in an attorney's "trust account." See Mass. R. Prof. C. 1.15(h). Because the board and bar counsel are generally required to keep confidential all information regarding allegations of misconduct by an attorney, they may give such notice to the beneficiaries of trust funds only where notice is necessary "to protect the public, the administration of justice, or the legal profession." S.J.C. Rule 4:01, § 20(2)(d), as amended, 438 Mass. 1301 (2002). [FN11] See Rule 3.22(a) of the Rules of the Board of Bar Overseers (2012). In addition, although we provide in Mass. R. Prof. C. 1.15(h)(5) that an attorney is "conclusively deemed to have consented to the reporting and production requirements mandated by [Mass. R. Prof. C. 1.15(h) ]," notice to trust beneficiaries would fall outside the scope of this consent because such notice is not mandated by the rule.
Although clients may benefit from board discipline or from bar counsel's investigation, we do not give clients standing to bring formal charges against an attorney; only bar counsel may recommend that formal charges be instituted and only the board may do so. Rule 2.7(3) of the Rules of the Board of Bar Overseers (2012). See Gorbatova v. Semuels, 462 Mass. 1012, 1012 (2012) ( "there is no private right to commence a court action to seek disciplinary action against an attorney"); Slotnick v. Pike, 374 Mass. 822, 822 (1977) ( "it is the Board of Bar Overseers and not private individuals, which is ordinarily responsible for prosecuting complaints against attorneys"). Similarly, if a bank commits a breach of its agreement with the board to provide notice of dishonored checks, the board has standing to seek a remedy in contract for that breach; we will not give a trust beneficiary a separate remedy in tort by making the contractual obligation owed to the board a duty of care owed to the trust beneficiary. [FN12]
Even if a bank's duty to notify the board of dishonored checks were required by statute rather than by a contract mandated by our rule, such a statutory duty would not create a duty of care in tort in the absence of legislative intent to create a private right of action. See Juliano v. Simpson, 461 Mass. 527, 531-532 (2012). "A duty of care must already exist before a plaintiff can use a defendant's statutory violation to support a claim of tort liability." Id. at 532. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990) (where statute does not provide private right of action, "[a]ny liability on the defendant's part" for violation of statute "must be grounded in the common law of negligence").
We conclude that, because there is no evidence that Citizens Bank had actual knowledge of [attorney] Goldings's intended or apparent misappropriation of Go-Best's funds in Goldings's client account, the bank had no duty in tort to take reasonable steps to prevent the misappropriation. Without such actual knowledge, the bank's duty to notify the board of dishonored checks from "trust accounts" arose only from its contractual duty, not from any duty in tort, so the bank could not be liable to Go-Best for any negligence in fulfilling that duty.
The case is Go-Best Assets LTD v. Citizens Bank of Massachusetts, decided today. (Mike Frisch)
Third (Branch) Eye Not Blind
Wisconsin Supreme Court Justice Ziegler has recused herself in the matter involving her colleague Justice Prosser:
Before Annette Kingsland Ziegler, J.
¶1 This matter is highly unique and presents extraordinary facts and legal circumstances. On June 25, 2012, Justice David T. Prosser, through his attorney, requested that I disqualify or recuse myself from the above-referenced matter, asserting that I am a material witness who was present at the February 10, 2010, and June 13, 2011, events that are the subject of the complaint. Justice Prosser has made essentially the same request of each of his six colleagues on the supreme court. In State v. Henley, 2011 WI 67, ¶2, 338 Wis. 2d 610, 802 N.W.2d 175, this court concluded that "determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought." Accordingly, this decision addresses my individual position on my recusal or disqualification. Nonetheless, each justice is presented with a similar fundamental issue.
¶2 The highly unusual issue each justice is called upon to decide is whether he or she, being a material witness to or co-actor in an alleged altercation between two colleagues, may sit in judgment of one or both of the justices involved in the alleged altercation? The answer to that issue, for me, is an ineluctable "no."
¶3 First and foremost, my conclusion is dictated by the law on judicial ethics. Pursuant to Wis. Stat. § 757.19(2)(b) (2009-10), "[a]ny judge," including a supreme court justice, "shall disqualify himself or herself from any civil . . . action or proceeding when one of the following situation occurs . . . (b) When a judge is a party or a material witness . . . ." That rule is echoed by SCR 60.04(4)(e)4. of our Code of Judicial Conduct, which provides that a judge "shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following . . . (e) The judge . . . 4. Is to the judge's knowledge likely to be a material witness in the proceeding." Likewise, SCR 60.04(4)(a) directs that a judge shall recuse himself or herself in a proceeding when the judge has "personal knowledge of disputed evidentiary facts concerning the proceeding." Again, the law leads me to the irrefutable conclusion that I must disqualify or recuse myself from the above-referenced matter
¶4 My conclusion is also in accordance with the principles of fundamental fairness and the right to a fair and impartial decision-maker, a right that precludes a judge from prejudging a case. In our country and in our state, everyone, even a supreme court justice, is entitled to a fair tribunal. Indeed, both the United States Constitution and the Wisconsin Constitution guarantee equal protection under the law. U.S. Const. amend. XIV, § 1; Wis. Const. art. 1, § 1. Under the highly unusual factual situation in the instant case, each justice is in the position to have already formed conclusions regarding the nature of the events that occurred on February 10, 2010, June 13, 2011, and prior thereto. That is, each justice, as a witness, has his or her own perspective on what occurred on February 10, 2010, and June 13, 2011. As far as I am concerned, there is simply no way for me to separate my personal perceptions and fairly and impartially judge this matter. Because, at a minimum, the justices are witnesses and all justices are likely to be called as material witnesses in the proceeding, recusal is required. Frankly, there is no need for a three-judge panel to conduct an evidentiary hearing and make findings of fact, see Wis. Stat. § 757.89, because the justices, the final decision-makers, already know the facts. Consequently, any findings of fact by the three-judge panel would be window-dressing at best.
¶5 In the recent past, this court has employed the common law "Rule of Necessity" when deciding to adjudicate a particular matter but has never applied the Rule of Necessity in a case in which the justices were also material witnesses. Under the Rule of Necessity, "where all are disqualified, none are disqualified." Ignacio v. Judges of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1165 (9th Cir. 2006) (internal quotations omitted). Given the unique factual situation of the instant case, applying the Rule of Necessity would produce an absurd result: even Justices Bradley and Prosser would presumably be required to participate. Certainly, application of the common law Rule of Necessity should not result in the defendant, potential defendant, and the witnesses also sitting in final judgment of the case.
¶6 Unfortunately, some parties do not receive their day in court despite wishing to be heard. For example, some parties are deprived of their day in court because the statute of limitations has passed, a court order has been violated, evidence is suppressed, or a myriad of other circumstances occur that have nothing to do with the merits of the underlying dispute. Here, if a quorum of four justices cannot hear this matter, this may be one of those circumstances.
¶7 Justice is supposed to be blind, but justice is not supposed to turn a blind eye to the obvious. An obvious conflict is presented by simultaneously participating as material witness and final decision-maker. Given these extraordinary circumstances, I simply see no legitimate basis upon which I could participate in this case. Thus, I respectfully disqualify and recuse myself from the above-referenced matter.
The opinion (with footnotes) is linked here. (Mike Frisch)