August 11, 2012
Son May Represent Father In Divorce Against His Mother
The Nevada Supreme Court has held that the son of a divorcing couple is not disqualified from representing his father in the litigation:
This original petition for a writ of mandamus raises two novel issues regarding attorney disqualification: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute an appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? Because appearance of impropriety is no longer recognized by the American Bar Association, and we have not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer, we reject that conclusion when the alleged impropriety is based solely on a familial relationship with the attorney. We also conclude that absent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification under RPC 1.7.
The court reversed the trial court, which had disqualified the son.
The Las Vegas Review-Journal noted that the representation might be contrary to common sense, if not legal ethics. (Mike Frisch)
August 10, 2012
Duhl on Dealing with Mental Illness in Law School and Practice
In a revealing and candid essay, and review of the sparse literature on mental illness among law professors, Gregory Duhl (Law, Wm. Mitchell) includes a narrative from the "outsider" experience of his own issues with borderline personality disorder. Among many interesting aspects is his contention that his success is in some senses because of his illness and not despite it--and in that way criticizes some aspects of the pathbreaking book by Louiville's James Jones, A Hidden Madness. Duhl's article is new on SSRN and is entitled "Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life." His abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
Disbarment By A Cigar
Here's a case involving a basis for discipline that I have not previously encountered.
An Illinois Hearing Board has recommended disbarment of an attorney convicted of smuggling cigars from Cuba:
On April 5, 2001, an eight-count indictment was returned against Respondent in the United States District Court for the Northern District of Illinois charging Respondent with conspiracy to smuggle Cuban cigars into the United States, smuggling goods into the United States, violations of the Trading with the Enemy Act and related regulations, and making false statements on a passport application...
On October 9, 2002, a jury found Respondent guilty of all eight counts of the indictment...
The charges of misconduct against the Respondent are based upon his conviction stemming from an eight-count indictment in which Respondent was charged with conspiracy, smuggling goods into the United States, violating the Trading with the Enemy Act and making false statements on a passport application. Respondent was found guilty of each charge set forth in the indictment. Respondent was sentenced to thirty-seven months imprisonment and ordered to pay a $60,000 fine and $650 assessment fee. On March 21, 2006, Respondent's conviction was affirmed by the U. S. Court of Appeals for the Seventh Circuit.
The attorney testified that he had gone to Cuba for the lawful purpose of visiting a woman that he was engaged to.
He had previously been suspended for one year as a result of unrelated misconduct.
The opinion affirming the conviction is linked here.
From the opinion:
Divorce rates are disturbingly high. Sometimes, marital splits get nasty when an ex-spouse decides to dish out a little dose of discomfort to his or her former partner. And as far as dishing out discomfort is concerned, the havoc visited on Chicago lawyer Richard Connors by his ex-wife would win a gold medal for creativity. With substantial assistance from his ex, Connors stands convicted in federal court of (among other things) violating a law we seldom encounter, the Trading with the Enemy Act (TWEA), 50 U.S.C.App. §§ 5(b)(1) and 16. Today, we resolve Connors's appeal from that conviction.
The court noted that Cuban cigars have a certain cachet and relied on Rudyard Kipling's observation that all cigars are special in footnote 2:
“[A] woman is only a woman, but a good cigar is a Smoke.”
EVANS, Circuit Judge.
Mother In Law
A new judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL
OPINION NO. 12 - 2012
RE: The propriety of a Family Court judge presiding over cases in which the judge's secretary's daughter-in-law, or members of her firm, appear as attorneys.
A Family Court Judge employs a secretary/assistant whose daughter-in-law is an attorney. The daughter-in-law, and other members of her firm, practice exclusively in the area of domestic law, and are likely to appear in the Family Court in the County where the judge presides. The Family Court judge seeks an opinion as to whether the judge can preside in matters in which the secretary's daughter-in-law (or other member of her firm) appears as an attorney and what
disclosures, if any, are required.
A Family Court Judge may preside over cases in which the daughter-in-law of the judge's secretary (or a member of the daughter-in-law's firm) appear as attorneys for a party.
According to Canon 3E of the Code of Judicial Conduct, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: . . . (d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding [or], (iii) is known by the judge to have a more than minimis interest that could be substantially affected by the proceeding.” Rule 501, SCACR. The Commentary to that section notes that "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge."
Here, none of the judge's relatives will appear as an attorney in a proceeding. In other words, the situation here does not involve the appearance of "the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 4E. Thus, the judge is not disqualified from presiding over matters in which the secretary's daughter-in-law or other members of her firm appear. However, according to the Commentary of Canon 4E., "[a] judge should disclose on the record information that the judge believes that the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."
You've Got To Get With The Program
A Louisiana Hearing Committee has recommended a suspension of a year and a day of an attorney as a result of his two alcohol-related driving offenses.
The committee cited the attorney's refusal to accept supervision by the Bar's lawyer assistance program as a key facrtor in its proposed sanction. (Mike Frisch)
No New Trial When Defendant Assaults His Attorney
The New Jersey Appellate Division has held that a criminal defendant "cannot engage in courtroom misconduct and then expect to be rewarded with a mistrial or new trial for his or her egregious behavior where the trial judge took appropriate cautionary measures to ensure a fair trial."
The defendant was charged (and convicted) of first degree carjacking and a number of other offenses. He had resisted arrest and assaulted a police officer and police dog.
The court recounted in incident at trial
At the conclusion of the State's case and in the jury's presense, defendant assaulted defense counsel, fought the sheriff's officers, attempted to escape from the courtroom, and was subdued by the sheriff's officers. The trial judge immediately removed the jury from the courtroom following the outburst.
Defense counsel, with commendable presence of mind, moved for a mistrial. The trial court denied the motion, "concluding that defendant's conduct was calculated to disrupt and delay the matter."
Through new counsel, defendant then moved for a new trial. That motion was denied. This appeal followed. (MIke Frisch)
August 9, 2012
Judicial Deliberative Privilege Upheld
The Massachusetts Supreme Judicial Court has upheld (with modifications) a subpoena issued to a judge who is the subject of a complaint:
In this case we conclude that although holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential, it must be accomplished without violating the protection afforded the deliberative processes of judges fundamental to ensuring that they may act without fear or favor in exercising their constitutional responsibility to be both impartial and independent. In so concluding, we formally recognize a judicial deliberative privilege that guards against intrusions into such processes--a protection we have implicitly understood as necessary to the finality, integrity, and quality of judicial decisions. Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States.
The complaint filed with the Commission on Judicial Conduct by a district attorney alleging judicial bias. The judge had sought to quash a subpoena for testimony.
The court held:
The portion of the subpoena relating to the twenty-three new cases is not so vague as to be unreasonable or oppressive. The commission has provided the judge with the name, date, and docket number of each of the new cases. The special counsel has also identified the subject area of inquiry with respect to each of the cases: jury trial waivers and trial proceedings; police testimony; motions to suppress and pretrial proceedings; bail and sentencing determinations; or "other allegations." Each of these areas of inquiry is further broken down into up to seven specific subcategories of alleged misconduct. A review of the dockets in concert with the misconduct allegations related to each subject area should make clear the particular allegation related to each of the new cases. Especially in light of our holding that the judge need not answer questions that are protected by a judicial deliberative privilege, we are satisfied that the judge will be able to prepare adequately for questioning on the basis of the notice provided.
Conclusion. The case is remanded to the single justice to oversee the issuance of a revised subpoena consistent with this opinion.
The case is In the Matter of the Issuance of a Subpoena, decided today. (Mike Frisch)
Indemnification Of School Board Member's Legal Fees Ordered
An elected school board member was entitled to indemnification of legal fees in defending a censure resolution, according to a decision issued today by New Jersey Appellate Division.
The conduct at issue involved the school board member's actions in response to a student "walkout" in reponse to budget cuts.
The court held that the censure process was a "legal proceeding" and thus was subject to an indemnification obligation. (Mike Frisch)
August 8, 2012
The New York Appellate Division for the Second Judicial Department has imposed a public censure of an attorney for neglect, signing a false attorney verification and assisting a non-lawyer's unauthorized practice of law.
The court described the situation:
The respondent was a partner in the law firm of Almonte & Bratkovsky, PLLC. In or about June 2006, Elina Zakharov, the vice president of J'Adore Day Spa (hereinafter J'Adore), met with Roman Pyatetsky, whom she believed to be a lawyer and an associate in the respondent's law firm, to discuss J'Adore's legal options against Quality General Contracting Corporation (hereinafter Quality General) regarding allegedly substandard contracting services provided to J'Adore. Pyatetsky was not a lawyer and was not an employee of the respondent's law firm. Zakharov paid legal fees in the sum of $7,000 to Pyatetsky and gave him original documents with the understanding that J'Adore was retaining the respondent's law firm to handle the lawsuit against Quality.
Without the respondent's knowledge or direction, Pyatetsky prepared a summons and verified complaint, together with an attorney verification. Those pleadings listed Almonte & Bratkovsky, PLLC, as the attorney of record, and were supported by an attorney verification in the respondent's name. On or about October 12, 2006, at Pyatetsky's request, the respondent signed the summons and the verified complaint, as well as the attorney verification. At the time, the respondent had not obtained a signed retainer agreement or letter of engagement from J'Adore and knew that J'Adore had retained neither him nor his law firm. At that time, the respondent told Pyatetsky that neither he nor his law firm intended to actually represent J'Adore in the lawsuit. Pyatetsky, whom the respondent knew was not a lawyer, filed the J'Adore action in the Supreme Court, New York County.
The attorney admitted the misconduct. (Mike Frisch)
August 7, 2012
No Success Fee
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a suit for legal fees:
This is a dispute over whether plaintiff Kasowitz law firm is entitled to a success fee in addition to the flat $1 million fee it has already received in connection with its representation of defendant Duane Reade. The issues are whether the parties' e-mails established a binding fee agreement, and whether the fee was to be limited to the moneys Duane Reade received in settlement of the underlying Cardtronics litigation, or was to encompass all of the benefits Duane Reade received from the termination of its ATM placement contract with Cardtronics, including increased revenues from Duane Reade's new ATM contract with JP Morgan Chase (Chase)...
...three e-mails constitute an integrated fee agreement (see Nolfi Masonry Corp. v Lasker-Goldman Corp., 160 AD2d 186, 187  ["a binding agreement may be assembled from more than one writing"]). By the plain language employed, they demonstrate that Kasowitz made an offer to represent Duane Reade in the Cardtronics case for a flat $1 million, plus a success fee equal to 20% of the amounts recovered above $4 million in that litigation, and that Duane Reade accepted that offer. Kasowitz is not entitled to a success fee under the terms of the fee agreement, since Duane Reade received total compensation of approximately $1.75 million — well below the $4 million threshold — as a result of the settlement of the Cardtronics action.
The dissent believes that the fee agreement is ambiguous as to the scope of the fee. The dissent reasons that the term "recover," as used in the September 8, 2006 e-mail, may reasonably be interpreted to encompass noncash resolutions, i.e. any value received as a result of the settlement of the Cardtronics action. However, in adopting this position, the dissent fails to consider the term "recovered" or "recovery" in the context of the e-mail as a whole, and improperly relies on extrinsic evidence, including Bergman's affidavits, in order to find ambiguity where none exists.
August 6, 2012
An attorney was retained to represent the father in a divorce and custody matter. The attorney learned from her client that that in an earlier CHINS (child in need of supervision) matter his wife's boyfriend had allegedly inappropriately touched his daughter. She concluded that the client's son and daughter "were in grave danger" and decided to interview them.
The attorney picked up the children at school, claiming that she had a right to do so. The school secretary "refused at first but felt intimidated and eventually relented."
The secretary called the cops, who called the mother. The mother "was terrified and became more upset as the evening wore on."
The attorney refused to disclose the location of the children to the children's sitter. The attorney, the father and the children had dinner.
Respondent then drove with the children through the back roads around Martinsville, looking for a birthday party [the daughter] had been invited to attend, relying on the children for directions. Respondent's cell phone had died and she was low on gas. Respondent stopped at several houses looking for the party, without success. Respondent eventually took the children to Mother's house at 8:45 p.m. - nearly six hours after Respondent took them from school.
The Indiana Supreme Court found a number of ethical violations in this scenerio and imposed a suspension of not less than six months without automatic reinstatement.
The court found that the conduct was prejudicial to the administration of justice and "had no substantial purpose other than to burden the school secretary and Mother in violation of Rule 4.4(a)."
The court noted convincing evidence that "the incident was not an isolated lapse" and that the attorney "lacks any insight into why her conduct was wrong..." (MIke Frisch)
Attorney Who Snatched Purse Left Tracks In Snow
The Illinois Administrator has filed a complaint alleging the following:
On January 19, 2012, as Ruth Cleverly sat reading at the Newton, Iowa, public library, Respondent stole Ms. Cleverly's purse, which contained her credit cards, cash and telephone.
Later in the day on January 19, 2012, Respondent used Ms. Cleverly's credit card on three occasions at the Newton Wal-Mart to purchase cigarettes, soda, American Express prepaid credit cards and a laptop computer. Each time, Respondent forged Ms. Cleverly's name on credit card receipts to purchase the items.
On January 20, 2012, Respondent returned to the same Wal-Mart and attempted to return the laptop computer, purchased with Ms. Cleverly's credit card on January 19, 2012, alleging that the computer was broken and attempting to get a refund. Wal-Mart loss prevention personnel identified Respondent as the individual who purchased the laptop computer on January 19, 2012. Wal-Mart personnel notified Newton police that Respondent had returned to the store.
When Newton police arrived at the Wal-Mart store, Respondent had already exited the store. Newton police officers tracked Respondent for at least twenty minutes, in the snow and through timber, until Respondent was apprehended and arrested.
The attorney pleaded guilty to forgery.
He also is alleged to have failed to report the conviction to bar authorities. (Mike Frisch)