September 14, 2012
A Classic Case Of Misappropriation
In a case that should be required reading for any attorney that handles entrusted funds, the New Jersey Supreme Court adopted the recommendation of the Disciplinary Review Board and disbarred an attorney for knowing misappropriation of client funds.
The DRB report (which precedes the order of disbarment) describes a course of conduct that involves about every type of mishandling funds one can imagine. The attorney robbed Peter to pay Paul (we call this "lapping" in disciplinary parlance) in several instances, deposited fees into his trust account to avoid the IRS and made claims of authority to use the money he had taken that barely pass the discipline laugh test.
In one instance, he claimed that he could use a deposit he held for a real estate sale because it was "nonrefundable." He took the funds that he was obligated by contract to hold and used it for, among other things, payment of his son's tuition at Villanova University.
One notable aspect of the case is that the rejection of the attorney's claim of sloppy bookkeeping as an excuse/explanation. The claim was defeated by the fact that he was a careful keeper of records who would zero out his escrow account as he kept afloat with other people's money.
His mitgation --of the usual sort --was that he was depressed and drinking because his father had died and his wife was divorcing him.
The DRB rejected the mitigation: "Although Respondent's medical condition is compelling, it is largely anecdotal."
The oldest bar discipline joke: What do you call it when an attorney uses entrusted funds because he's in a pickle? A Vlasic case of misappropriation. (Mike Frisch)
The Value Of Web Pages
The Ohio Supreme Court has imposed a two-year suspension, with the second year stayed on conditions, in a matter where the attorney had engaged in unauthorized practice in two matters after his administrative suspension from practice.
In both matters, the misconduct as discovered by a review of the court's web page.
The attorney was initially non-cooperative with the bar but eventually admitted that the misconduct was a product of his lack of diligence. The court also noted his "unexcused tardiness" at the panel hearing in the disciplinary case. (Mike Frisch)
September 13, 2012
Supreme Court No Pulpit For Bully
The Pennsylvania Court of Judicial Discipline has issued an interim order suspending Supreme Court Justice Joan Orie Melvin without pay.
The court found no due process violation in such a suspension in light of pending criminal charges:
...in this case, what drives our decision is the nature and quality of Respondent's conduct. In examining that conduct we see this Respondent as so single-mindedly occupied with achieving personal aggrandizement that she pressured, intimidated and bullied her clerks and secretaries into performing work on her political campaigns in violation of a pledge each had made as a condition of their employment pursuant to an Order of the Pennsylvania Supreme Court. This intimidation and bullying was relentless and continued over long periods of time. Her chief clerk...practically begged her to stop demanding that the staff continue to violate the order prohibiting them from engaging in such political activity; but Respondent did not stop.
CBS Pittsburgh has this recent report on the criminal charges. (Mike Frisch)
Sanction Increased In Kilpatrick-Related Case
The Michigan Attorney Discipline Board has increased the sanction imposed on a Chief Assistant Corporation Counsel to an 18 month suspension for her role in the Kwame Kilpatrick ethical disaster.
The board cooncluded that, although the attorney was under pressure from her superiors (and ultimately the mayor) to engaged in the misconduct
...her response to such pressure was unacceptable...we are of the opinion that respondent's knowing misrepresentations to the court were so at odds with her role and duties as an officer of the court that a suspension [imposed by the hearing panel] of 90 days is insufficient to achieve the aims of the disciplinary system.
The attorney had denied the existence of settlement documents. (Mike Frisch)
The Law Of Chupahs
A wedding chupah was a structure under governing labor law, and a defendant's motion for summary judgment was properly denied, according to a decision of the New York Appellate Division for the Second Judicial Department.
In the early morning of August 24, 2008, after the wedding celebration had ended, the plaintiff was disassembling the chupah, which was owned by Atlas. The chupah was a 10-foot-high device made of pipe, wood, and a fabric canopy at its top. The chupah's frame consisted of metal pipes that were 10 feet long and 3 inches wide, assembled to each other, and its vertical supports were attached to 4 steel plates on the floor. The plaintiff worked on disassembling the chupah from a six-foot high aluminum ladder supplied by his employer, on which two feet allegedly were missing. To perform the disassembly, the plaintiff was required to use a pipe wrench, a florist knife, wire cutters, and the ladder. A few minutes into disassembly, while a coworker was holding the ladder and the plaintiff was standing on the third rung from the top of the ladder, the ladder slipped and the plaintiff fell to the floor, sustaining injuries.
Whether an item is or is not a "structure" is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnectingparts; and the amount of time the item is to exist. However, no one factor should be deemed controlling.
We find that in this case and upon consideration of all relevant factors, the Supreme Court properly held that the chupah at Abigail Kirsch was a "structure" within the intended scope of Labor Law § 240(1). In this action, the chupah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chupah's constituent parts in a process that would take an experienced worker more than a few minutes to complete. The chupah here is more akin to the things and devices which the courts of this state have recognized as structures than to the things and devices that have not
been recognized as structures.
This is not to say that every chupah qualifies as a structure under Labor Law § 240(1). Undoubtedly, there are wide variations of chupahs, some involving a series of durable interconnected parts, and others being much more simple and merely decorative in nature. Whether or not a chupah qualifies as a "structure" under Labor Law § 240(1) requires a consideration of more than only the purpose for which it is used. For example, the assembled pipe, wood, and fabric chupah in this matter consisted of intricate, interconnected parts, whereas, the wedding canopy in Stanislawczyk v 2 E. 61st St. Corp. (1 AD3d 155), a case upon which the defendants heavily rely, was suspended from a ceiling and was not itself assembled or interconnected with any other object. While the items here and in Stanislawczyk may have been used for the same ultimate purpose, the items themselves were, in a structural sense, vastly different from one another, one being a simple one-piece object, and the other being a collection of attached pieces of wood, metal, and fabric.
September 11, 2012
Nersessian on the Impact on Law Practice of State Bans on Foreign and International LawDavid L. Nersessian (BU) has posted How State Legislative Bans on Foreign and International Law Obstruct the Practice and Regulation of American Lawyers, forthcoming in Vol. 44(4) of the Arizona State Law Journal (2012), on SSRN. Here is the abstract:
Thirty-three state legislatures have introduced (and five have enacted) “blocking” initiatives that prohibit foreign or international law in state judicial decisions. These laws make it all but impossible for practicing lawyers to fulfill their ethical obligations in legal matters abroad. Blocking initiatives create uncertainty about ethical duties at home whenever domestic legal work includes a transnational dimension. The also resurrect the “double deontology” problem (where inconsistent ethical duties apply simultaneously) that the revised ABA Model Rules intended to solve and eviscerate the Rules’ safe harbor protection on difficult choice of law questions. Blocking measures also interfere with wider regulatory structures, infringing unconstitutionally on the power of state judiciaries to prescribe substantive ethical rules and to regulate lawyer conduct overseas. They also disrupt reciprocal discipline between American states and relationships between state judiciaries and federal courts. This confluence of negative outcomes is completely unnecessary because the judiciary has sufficient tools already to guard against potential abuses in the application of foreign or international law.
No Ordinary Document
A New Jersey attorney has been reprimanded for forging a court order.
The matter was referred to New Jersey bar authorities by a Colorado magistrate. The attorney had admitted in a custody/visitation proceeding that she had forged the order to permit her son to enroll in school under her maiden name. She also admitted the conduct in the bar proceedings.
According to the Disciplinary Review Board: "...respondent fabricated no ordinary document. She created out of whole cloth, a fictitious New Jersey court order."
There was mitigation involving pressure to enroll her son and her husband's desperate medical condition. (Mike Frisch)
Legal Malpractice Times Two
The Indiana Supreme Court has suspended an attorney for not less than six months without automatic reinstatement.
The attorney was retained to pursue a legal malpractice claim against the client's former lawyer based on allegations relating to the handling of a personal injury case. The attorney filed the personal injury case rather than the malpractice case. That case was dismissed on statute of limitations grounds.
The attorney falsely told the client that the legal malpractice case was filed. The client fired the attorney and retained new counsel.
Perhaps the third lawyer is the charm. (Mike Frisch)