August 24, 2012
It's a Conflict Of Interest To Sue A Current Client
The Maryland Court of Appeals has held that an attorney who sues a criminal client for legal fees while the client is awaiting trial "operates under a potential conflict of interest."
In the context of a claim of ineffective assistance of counsel when a suit is filed, the client who fails to alert the trial court in a timely manner must demonstrate an "actual" conflict of interest that adversely affected the representation.
If the client can make this showing, prejudice will be presumed.
The client first advised the trial court of the lawsuit at sentencing.
The case was remanded for further proceedings to explore whether the lawsuit had an adverse impact on the representation. (Mike Frisch)
Admitted And Suspended
This may be a new record for the fastest suspension after bar admission.
The Ohio Supreme Court has ordered suspension of an attorney admitted to practice on May 14, 2012.
Ohio requires a newly admitted attorney to register within 30 days of admission by payment of a biennial registration fee. The attorney failed to do so.
Update: thanks to sharp-eyed readers, the typo on the date of admission has been corrected. (Mike Frisch)
Attorney Sanctioned; Misses Trial While Talking To Client on Cell Phone
The Maryland Court of Appeals has imposed a suspension of 60 days in a matter where the atorney failed to appear for trial. The circumstances were hotly disputed and warrant close examination.
The attorney was retained to defend a business and its owner in a civil matter. Trial was scheduled on January 26, 2007 at 8:45 am.
The attorney and opposing counsel reached an "agreement in principle" for settlement the day before the scheduled trial. The settlement called for a series of two payments and a default for the full amount alleged if the payments were not made by the agreed dates. Opposing counsel faxed the agreement to the attorney for signature.
The attorney's client agreed to come to his office to sign off on the agreement the next morning. He was late. The attorney left for court and went to the courtroom, but did not check in with the court clerk (the fatal error). He then left the courtroom and got ahold of the client via cell phone. The client told him that he had signed the agreement and left a check for the first installment. at the attorney's office.
The attorney had missed the call of the case. Opposing counsel had sought and obtained a default judgment when he was in the hall on his cell phone.
The attorney bumped into opposing counsel, who told him the case had been called and concluded. The attorney told opposing counsel that the settlement agreement was executed and asked whether "everything is still in place?" Opposing counsel replied "Yes, just get me the documents."
The attorney did not learn (and opposing counsel did not volunteer) that a default judgment for the full amount had been entered. The attorney did not check on the disposition (another error).
The default came to light when opposing counsel noted an oral examination to collect on the judgment. The parties agreed to vacate the default. The judge (for reasons that are not set forth) denied the motion to vacate. The settlement was nonetheless consummated and the case brought to conclusion.
The judgment did have a negative impact on the client's credit.
As you might expect, the attorney defended bar charges by asserting that opposing counsel had misled him. The trial court essentially credited the accused attorney's version of his interaction with opposing counsel.
The court rejected defenses to the ethics charges based on the conduct of opposing counsel. The court concluded that the attorney violated ethical rules by failing to appear for the trial and learn of the entry of judgment against his client judgment in a timely manner. (Mike Frisch)
August 23, 2012
Delayed Justice Or Pound Of Flesh?
The New York Commission on Judicial Conduct has ordered the removal from office of a family court judge as a result of charges that he had "engaged in a sexual act with his five-year-old niece" in 1972.
The incident took place when the judge was 25 years old and prior to his admission to the Bar.
He "admitted that in or about 1972 his five-year-old niece touched his hand while he was stroking his penis; denied that his actions violated the cited ethical rules, and as an affirmative defense, alleged that the Commission lacks jurisdiction because the incident predated his service as a judge by approximately thirteen years."
There is a concurring/dissenting opinion that notes that the judge resigned from office when notified of the complaint. The opinion further notes that the victim "still emotionally troubled by the horrible incident and seeking a measure of justice," approached the prosecutor's office and gained an admission from the judge while wearing a wire.
The matter then was referred to the Commission, which proceeded notwithstanding the judge's prompt resignation:
I am not unmindful that, particularly in the wake of the sexual abuse scandals at Penn State and Syracuse University [which is in the county where the judge sat], no public official or body wants to appear to have shown any leniency whatever to an alleged sex offender - even where the offending act occured so much earlier...
...we should want to encourage judges, directly confronted with the error of their ways, as here, to quickly and unqualifiedly resign in the face of egregious allegations of wrongdoing of which they are clearly guilty. We should not, except in an appropriate case which this is not, require a post-resignation removal simply for a disciplinary authority to gain a very public pound of flesh, fearful of criticism for supposed leniency if it does not demand removal.
Stated most directly - the horrific conduct of respondent, who has now descended from the bench leaving his robes and gavel behind, occurred 40 years ago. It is now time to close this book.
The order of removal called the conduct "abhorrent and not attenuated by the passage of time."
CNYCENTRAL.com has this report. (Mike Frisch)
How To Get To Carnagie Hall
The Maryland Court of Appeals has held that an injured former Washington Redskins football player is a "covered employee" entitled to workers compensation because he was regularly employed in Maryland.
The Redskins practice in Virginia but play their home games in Landover, Maryland. The court held that this fact establishes the employee's regular employment in the State:
...practice time is incidental to playing football games.
In a separate matter, the court yesterday held that a Redskins player (a punter) who was injured while warming up for a game suffered a compensable injury under workers compensation law.
Non-Identical Reciprocal Discipline
The Maryland Court of Appeals ordered that an indefinite suspension be imposed as reciprocal discipline based on a sanction imposed by the District of Columbia Court of Appeals.
The D.C. Court found that the attorney had overbilled for court-appointed criminal compensation under the Criminal Justice Act. The attorney was suspended in D.C. for 18 months, with six-months stayed, followed by a one-year probation with conditions.
The Maryland Court concluded that "there is no sanction in Maryland that corresponds completely with the [D.C.] sanction..." and imposed an indefinite suspension. The sanctioned attorney may not seek reinstatement in Maryland until he is unconditionally practicing in D.C. (Mike Frisch)
August 22, 2012
A Classic Rule 4.2 Violation
It's the time of the year when law professors are looking for new cases to use as teaching examples. If you teach professional responsibility and want a good illustrative Rule 4.2 case , check out a decision issued today by the Minnesota Supreme Court.
The attorney represented a defendant in a homicide case. He instructed his investigator to interview a co-defendant of his client who had entered a guilty plea and was cooperating with the prosecution.
Unfortunately, the co-defendant was represented by counsel in the matter. The attorney failed to seek or obtain permission from counsel to speak with the co-defendant. The investigator took a written statement.
The court rejected the attorney's contention that the co-defendant was not represented by counsel in the matter at issue and the alternative contention that such interviews are "authorized by law."
The attorney had prior discipline. A 60-day suspension was imposed. (Mike Frisch)
Honors For Paul Burgoyne
From the web page of the Pennsylvania Disciplinary Board:The Disciplinary Board of the Supreme Court of Pennsylvania’s Deputy Chief Disciplinary Counsel, Paul J. Burgoyne has been elected to serve as Secretary of the National Organization of Bar Counsel (NOBC). In this role as an officer and member of the Board of Directors, he will be responsible for documenting all board meetings, maintaining the organization’s membership list and giving notice of all meetings and elections. Burgoyne previously served as a director from 2008-2012.
The NOBC is a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada and Australia. Comprised of representatives from more than 75 state, local and federal lawyer regulatory agencies, the NOBC seeks to advance the goals of attorney regulation by making contributions through the American Bar Association and state bars, influencing rule making and speaking out on issues involving lawyer regulation and professionalism. The Board of Directors is comprised of the organization's officers and two At-Large Directorsand is elected by the NOBC members present at the annual meeting.
“Throughout my terms on the NOBC Board of Directors, it has been an honor to serve many talented and devoted public servants,” said Burgoyne. “In my term as Secretary, I look forward to working alongside my dedicated NOBC colleagues to continueto improve communication among the jurisdictions in this era of increasing lawyer mobility.”
For more than 30 years, Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993. Overseen by the Disciplinary Board of the Supreme Court of Pennsylvania, ODC investigates complaints against attorneys, and when appropriate, prosecutes. In his role, Burgoyne is also responsible for providing educational programs for attorneys and consumers.
Prior to his position as Deputy Chief, he was a staff counsel for the Philadelphia office, and later became a Counsel-in-Charge of the Philadelphia office from 1987 to 1993. He spent five years in private practice limited to criminal law, and three years at Legal Aid of Chester County in West Chester, Pa., where he tried civil cases in both state and federal courts.
In addition to serving on the NOBC, Burgoyne conducts seminars and participates in panels discussing legal ethics and professional responsibility for organizations such as the Association of Professional Responsibility Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia, Conference of County Bar Leaders and the National Association of Legal Secretaries.
Burgoyne received his Bachelor of Arts in Political Science from LaSalle University in 1970, and currently serves as the President of the La Salle University Alumni Association Board of Directors. He earned his Juris Doctorate degree from Rutgers University Law in Camden, N.J., in 1973.
The Meaning Of "Esquire"
The Review Department of the California State Bar Court has recommended disbarment of an attorney who engaged in unauthorized practice of law while on disciplinary suspension.
The suspended attorney had referred to himself with the honorific "Esq." and as an attorney on pro se pleadings in court cases. The Review Department rejected his claim that he could do so (and refer to his "Law Offices" ) when representing himself.
He also had represented a corporation while suspended.
The attorney contended that "the word 'Esquire' has many meanings, including that of property owner and subscriber to the magazine Esquire."
The Review Board called the argument "unconvincing." When the honorific appears after his name in pleadings and in letters to opposing counsel, it referred to his purported attorney status. (Mike Frisch)
Call for Papers - Poverty & Access to JusticeFrom Kristen Kyle-Castelli, Executive Supra Editor of the Mississippi Law Journal:
The University of Mississippi and the Mississippi Law Journal is pleased to announce that in Spring 2013 Supra will be devoted to current scholarship in the area of Poverty & Access to Justice. Supra publishes content exclusively for our online format. Thus, our articles are generally concise. Supra serves as a practitioner’s aid with articles detailing current challenges and practical solutions. Supra is seeking submissions that address practical solutions under this general theme. Possible civil topics include, but are not limited to: • The Use of Forms for Self-Represented Litigants • Developing Statutory Law that can be Utilized by Self-Represented Litigants • Civil Gideon • Should Bar Associations Require Mandatory Pro Bono Hours Scholars in the area of pro bono assistance and legal profession are invited to submit paper proposals, 1-2 pages in length, by September, 15, 2012. Proposals should be sent to Kristen Kyle-Castelli, Executive Supra Editor. Papers will be selected to ensure a wide range of topics.
As an online Journal, Supra accepts papers that are 4,000 words or greater. Final drafts of papers are due by October 31, 2012. Supra and the Mississippi Law Journal will host a physical Symposium addressing this issue during the spring semester. Questions can be submitted to Kristen Kyle-Castelli, Executive Supra Editor, or Emily Steadman, Editor-in-Chief.[Jeff Lipshaw]
August 21, 2012
Martin, Michael, Matthew And Marshall
An Illinois Hearing Board has recommended a six-month suspension of an attorney based on findings that he had converted funds held in a family trust:
The charges in this case stem from Respondent's alleged misuse of the funds from a family trust and his subsequent failure to account for his actions. The admitted complaint allegations and other evidence presented established the following.
The Whitlaw Trust was established in 1982 by Respondent's grandmother and originally contained 520 shares of stock in a telecommunications company. Respondent's mother, Sandra, and his uncle, James, were the lifetime income beneficiaries of the Trust. Upon both of their deaths, the assets in the Trust were to be divided equally among Respondent and his three brothers, Michael, Matthew and Marshall. Springfield Marine Bank was named the original trustee and Bank One later assumed that role. In 1999, the family became dissatisfied with the manner in which Bank One was investing the Trust's funds and asked it to resign. Sandra was vested with the authority to appoint the Successor Trustee and she chose Respondent. Sandra, James, Michael and Matthew all agreed to allow Respondent to take over for the bank as Trustee.
The hearing board found that the attorney used the entrusted (and now depleted) funds for his own purposes. The result harmed the financial interests of his mother, uncle and three brothers.
The attorney's first name is Martin. (Mike Frisch)
One Day, Three Disbarments In Maryland
The Maryland Court of appeals ordered disbarment in three separate attorney discipline matters.
One case involved an attorney who charged an unreqasonable fee and refused to return any porition to client in violation of multiple disciplinary rules.
The second case Involved a lawyer who "was unresponsive to his client; changed offices without telling them; failed to keep them informed about their matters; and instructed them to lie to the court about the nature of his representation.' He had engaged in intentional dishonesty and did not particiapte in the bar proceedings.
The third case involved an excessive fee. The attorney settled a fee dispute with a disabled client by taking a lien on the client's marital property settlement without giving an opportunity for independent legal advice. The attorney also had lied to the client. (Mike Frisch)
Position Announcement - Professor in the Practice - Transactional Skills
SUFFOLK UNIVERSITY LAW SCHOOL invites applications for an appointment as Professor in the Practice of Law to instruct in and direct its Transactional Skills Program starting in the 2013-14 academic year. We seek a candidate who has the interpersonal skills, vision and ambition necessary to establish an innovative transactional lawyering skills program, and who will function as the program’s architect, principal faculty resource, and, as necessary, supervisor in mentoring adjunct faculty members. We welcome applications from persons with a demonstrated background in transactional practice or pedagogy and a commitment to teaching, and particularly encourage applications from women, persons of color, sexual orientation minorities, and others whose backgrounds will contribute to the diversity of the faculty. The faculty position will either be tenure-track or be covered by a long-term renewable contract. Interested candidates should contact Professors Jeffrey Lipshaw or Joseph Franco, Co-Chairs, Business Law and Transactional Skills Committee, at email@example.com or firstname.lastname@example.org, with a copy to email@example.com, or mail their materials to the Co-Chairs of the Business Law and Transactional Skills Committee, c/o Ms. Janine LaFauci, at Suffolk University Law School, 120 Tremont St., Boston, Massachusetts 02108-4977. Suffolk University is an equal opportunity employer.
Piecemeal Disclosure Results In Denial Of Bar Admission
The Maryland Court of Appeals has denied an application for bar admission of an applicant who had "omitted multiple requirements on his initial application to the bar... [he[ continuously displayed a lack of candor in only addressing the gaping omitted sections upon request and supplementing requisite application material in an untimely, piecemeal fashion."
The Character Committee found that the applicant failed to complete answers to the application for admission "because he did not allow himself an adequate amount of time to complete the application before the filing deadline."
Don't let this be you. (Mike Frisch)
August 20, 2012
Call for Nominations of Papers for Zacharias Prize in Legal Ethics
From Samuel Levine (Law, Touro) comes this announcement/reminder of a worthy award honoring the very worthy memory of Fred Zacharias:
Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: firstname.lastname@example.org
The deadline for submissions and nominations is September 1, 2012.
Misfeasance, Malfeasance and Nonfeasance
The Wisconsin Supreme Court (without dissent) accepted the license revocation of an attorney.
The attorney had a record of prior discipline. The court quoted the referee:
This referee is troubled by Stokes' willingness to lie, forge signatures, and fraudulently bill the SPD in furtherance of his own personal goals. He lied to a sitting court in the midst of a John Doe investigation. He lied to the [State Public Defender] in order to line his pockets with extra, unearned cash. He forged client signatures on documents he later filed with the Western District of Wisconsin Bankruptcy Court. Equally disturbing are the allegations that his filings were filled with mistakes, and that the court personnel could not decipher the filings, or process his client's cases appropriately.
. . . To consider anything less than a revocation of his license to practice law would unduly depreciate the seriousness of his misconduct and fail to deter others from engaging in similar conduct.
The court declined to order restitution:
With respect to the remaining questions regarding restitution, we decline to hold the matter of restitution open with respect to the bankruptcy cases, and we decline to grant the OLR's belated request to order Attorney Stokes to pay $200 in restitution to S.M. Finally, we further determine that Attorney Stokes should be required to pay the full costs of this proceeding.
The attorney accepted the proposed result of the referee. (Mike Frisch)