January 28, 2012
High Profile Maryland Disbarment
The Maryland Court of Appeals has ordered the disbarment of former Prince George's County Executive Jack Johnson.
The Baltimore Sun reported:'
Former Prince George's County Executive Jack Johnson was sentenced...to more than seven years in federal prison after admitting to a wide-ranging pattern of corruption that permeated virtually every level of county government from health to housing and law enforcement to liquor laws.
Johnson, a 62-year-old Democrat, was arrested on extortion, bribery and evidence tampering charges in November 2010 while serving out the final weeks of his eight years as the leader of Maryland's second-most populous county.
January 26, 2012
Tales From The Gulag
The Iowa Supreme Court has links to a number of documents relating to proposals to revise Iowa's attorney advertising rules. The most recent documents consist of 47 pages of comments on the proposed rules.
My friend Norman Bastemeyer, the former Administrator to the Iowa Supreme Court Board of Professional Ethics, used to refer to Iowa as the "Advertising Gulag"because it has the most restrictive (and likely unconstitutional) rules of any jurisdiction. Is that about to change? (Mike Frisch)
Theories Of Relativity
The Florida Judicial Ethics Advisory Committee has recently opined:
Whether a county judge whose child works in the state attorney’s office in the same county is automatically disqualified in all criminal cases?
ANSWER: No, but the parties should be informed that the child works for the state attorney.
The inquiring county judge is assigned to a trial division and routinely presides over felony and misdemeanor jury trials.
The inquiring judge’s child will soon graduate from law school and seek employment in the same county with the state attorney’s office. The inquiring judge acknowledges that “[the child] could not and would not handle any cases assigned to my division.” But the inquiring judge asks whether this family relationship would disqualify the inquiring judge from presiding over any and all criminal cases.
A minority of the Committee agrees that disqualification is not required solely because the child of a judge is employed by the state attorney’s office but does not agree that a bright line rule requiring disclosure is necessary. It would be more appropriate to advise the judge that the judge should disclose the judge’s relationship if the judge believes that the parties or their lawyers may consider the circumstances of the employment relevant to the issue of disqualification. This is consistent with the Commentary to Canon 3 E (1). The judge should be aware of any unique circumstance that may be relevant to the issue of disqualification. This Committee has just opined that the mere fact of employment, without more, is not sufficient for disqualification and, therefore, may not be relevant to the issue.
No Misrepresentation For Unkept Promises To Cooperate
An attorney who had previously been reprimanded, censured and suspended for three months has been suspended for one year and until further court order by the New Jersey Supreme Court.
The attorney engaged in serious neglect and related violations in two matters. He also failed to cooperate in the disciplinary proceedings. The Disciplinary Review Board declined to find that his unkept promises to cooperate amounted to false statements, concluding that he likely intended to cooperate but did not follow through.
The suspension was imposed consecutively to an interim suspension. (Mike Frisch)
Misconduct Motivated By Desire To Visit Mother
The New Jersey Disciplinary Review Board has imposed a reprimand of an attorney who had forged the name of an attorney on the addendum to a real estate contract. The disciplined attorney represented the buyers; the forged name was that of the lawyer for the sellers.
The attorney wanted "to insure that his travel plans to Korea to visit his mother were not interrupted and to accommodate the buyers." (Mike Frisch)
Latex Allergy Must Be Accommodated By Preschool
In a 5-2 decision, the Maryland Court of Appeals reversed the Court of Special Appeals and found that a parent who suffered from an allergy to latex was discriminated against by her child's preschool for its failure to accommodate her condition by refusing to use non-latex products in its diaper changing of the child. The school responded by asking her to withdraw the child. The court held that the condition was a handicap that the school had not reasonably accommodated.
The dissent agrees that parenting is a "major life activity" but questions the "reasonable accommodation" analysis of the majority. The dissent also suggests that the court majority has failed to consider the potential broad impact of this decision. (Mike Frisch)
Indefinite Suspension For Second Disciplinary Offense
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today imposed an indefinite suspension against the law license of [a] Cincinnati attorney...for multiple violations of the Rules of Professional Conduct.
In a 7-0 per curiam decision, The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [he] had commingled client funds in his possession with his own funds, overdrew and made other improper use of his client trust account, neglected a legal matter entrusted to him by a client and failed to cooperate with disciplinary authorities during the investigation of his misconduct. Because [he] failed to respond to inquiries from the Office of Disciplinary Counsel regarding his conduct or to appear for scheduled depositions, the disciplinary board reviewed the complaint against him through default proceedings.
In imposing an indefinite suspension as the appropriate sanction, the Court cited the aggravating factor that [his] license was previously suspended in 2007 for cocaine use and related criminal charges, and noted that he pleaded guilty to a misdemeanor charge of possession of drug paraphernalia in April 2011 and was sentenced to two years of community control.
The Court specified that any future reinstatement of [his] law license will be conditioned on his compliance with at least a two-year substance abuse recovery contract with the Ohio Lawyers Assistance Program (OLAP) and any OLAP treatment recommendations, compliance with the terms of his community control, and completion of continuing legal education course work relating to client trust accounts.
The opinion is linked here. (MIke Frisch)
I Love D.C.
Readers of this blog may recall my advocacy in favor of agreed, i.e., stipulated dispositions in the District of Columbia bar disciplinary system. Today the D.C. Court of Appeals approved four such proposed dispositions. It's a great day to be a member of the D.C. Bar.
Two of the cases involved petty theft matters.
In In re Nakell, the attorney stole two books from a North Carolina bookstore in the 1990s. The disciplinary case in North Carolina resulted in a finding that he had not engaged in dishonesty for personal gain (perhaps the books were part of a quest for self-growth?). He concealed the books in a newspaper and relinquished them when confronted. The court approved a stayed six-month suspension and probation for three years.
In re Royer involved the failure to pay for a $19 cab ride. After a remand to explore possible alcoholism, the court approved a suspension of 30 days, which the attorney has already fully served.
In In re Beane, the court approved the summary reinstatement of a suspended attorney. In In re Mance, the court approved a six-month suspension with fitness of an attorney with a prior disciplinary record for neglect and related offenses.
The opinions may be found at this link.
A great day! (Mike Frisch)
January 25, 2012
Sit Down You're Rocking The Boat
An attorney has been publicly censured by the Tennessee Board of Professional Responsibility for a direct criminal contempt in the Jefferson County General Sessions Court. He "interrupted court proceedings, became argumentative with the presiding judge, and failed to take his seat when ordered to do so."
The censure recites that the attorney disrupted a tribunal and engaged in conduct prejudicial to the administration of justice.
The Criminal Court of Appeals affirmed the contempt conviction and provides details of the conduct.
The title to the post is from Guys and Dolls. (Mike Frisch)
Non-Refundable Fee Must Be In Writing In Tennessee
The Tennessee Board of Professional Responsibility has issued a public censure who represented a client charged with criminal offenses. The attorney charged a non-refundable fee of $9,000 but did not put the agreement in writing. When the client discharged the attorney and sought a refund of a portion of the fee, the attorney refused.
The board stated that, since January 1, 2011, non-refundable fee agreements must be in writing. (Mike Frisch)
One Client Too Many, One Insight Too Few
The Minnesota Supreme Court has imposed a public reprimand and probation of two years in a case involving an attorney's simultaneous representation of "a plaintiff and a third-party defendant in the same lawsuit; and...after withdrawing from representation of the third-party defendant client, continu[ing] to represent the plaintiff without obtaining written, informed consent to the former client."
The attorney also did not express remorse for his ethical lapse: "His brief to our court...demonstrates his lack of remorse. [He] not only persists in his assertion that no conflict of interest existed, but also cites as a mitigating factor Client B's 'deceit' and 'withholding material information.' This attempt to deflect blame highlights [his] lack of remorse and insight into his own conduct." (Mike Frisch)
January 24, 2012
Pay The Lawyers Before The Hospital
The Delaware Supreme Court has held that an attorney is entitled to take a contingent fee prior to the execution of a lien for medical expenses.
The law firm represented a client in a personal injury action. The hospital bill was for over $160,000. The client received compensation in an amount under $20,000. The hospital sought to take the full amount as payment. The court found that the common law charging lien of the attorney requires that the fee be paid in preference to the hospital's lien. (Mike Frisch)
Money Laundering Conviction Leads To Suspension
An attorney convicted in a money laundering scheme was suspended for four years by the Pennsylvania Supreme Court.
The attorney had served as the outside counsel for a bank. He was convicted as a result of an FBI undercover sting operation of bribes and kickbacks from unqualified loan applicants. The FBI agent --one John Roberts -- approached the bank president with an idea to conceal his ownership in property because of a bitter divorce.
The suspended was imposed starting from the date of his interim suspension by the court. (Mike Frisch)
Customary But Improper Legal Fee Charges
In a decision reversing the Circuit Court and Court of Special Appeals, the Maryland Court of Appeals reached a decision with respect to legal fees charged in foreclosure sales:
We hold that , in the absence of specific authority in the contract of indebtedness or contained in statute or court rule, it is an impermissible abuse of discretion for trustees or the lenders who 'bid in' properties to include the demand for additional legal fees for the benefit of the Trustees in the advertisement of sale, or in any other way, in that it is contrary to the duty of trustees to maximize the proceeds of the sales, and, moreover, is not in conformance with state or local rules and... is against public policy.
The court noted that the practice of charging for such fees was, prior to its decision, the customary practice in Maryland foreclosure sales. (Mike Frisch)
January 23, 2012
Conflict But Not A Part Of The Fraud
The Illinois Review Board has recommended a three-month suspension of an attorney who represented a buyer and seller in a real estate transaction. Unbeknownest to the attorney, the deal itself was a fraud.
The board's summary:
The Hearing Board found that Respondent engaged in a conflict of interest, breached his fiduciary duty to his clients and committed other misconduct by representing both the buyer and the sellers in a real estate transaction that appeared to involve a fraudulent scheme. Respondent was not a participant in the scheme with disastrous consequences for the buyer of the property, but they were not caused by Respondent.
The Hearing Board found only a few factors in mitigation or in aggravation. Noting that Respondent did not act fraudulently or in furtherance of his own financial gain, it recommended that Respondent be suspended for three months.
The Administrator argues upon review that the Hearing Board's finding that there was not clear and convincing evidence that Respondent failed to keep his client reasonably informed about a matter was against the manifest weight of the evidence and that when all of the findings in aggravation are considered, a suspension of at least one year is appropriate. After reviewing the findings of the Hearing Board and making some findings of our own, we conclude that the finding as to this charge was not against the manifest weight of the evidence. We recommend that Respondent be suspended for three months.
No Support Whatsoever
The Michigan Attorney Discipline Board has agreed with a Tri-Valley Hearing Panel that charges of false statements to a tribunal were not proven by a preponderance of the evidence. The Board affirmed the panel's order of dismissal.
The board rejected the arguments of the Grievance Administrator that the panel was biased:
...we find no support whatsoever for the Administrator's claims of bias on the part of the panel. To the contrary, the record shows that the panel was liberal in admitting evidence offered by the Administrator over the respondent's objections. That the panel understood what evidence might have established the Administrator's claims, and made reference to such evidence to illustrate the deficiency of the proofs does not establish bias or the improper resort to facts outside the record to support the decision.
Animal Control In South Carolina
A magistrate may not appoint as constable the spouse of the chief animal control officer because the appointment would require his recusal in animal control cases, according to an opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct:
The judge not only has the power to appoint a constable, he or she has the power to remove the constable prior to the expiration of the constable’s two-year term of office. The constable also must, by law, execute process for the magistrate’s court and can be fined or imprisoned for failure to do so. Thus, the magistrate has a certain amount of control over the constable. In turn, in situations where the constable’s spouse or his/her employees regularly appear before the court, the appearance of impropriety could be created or the magistrate’s partiality could be questioned. Therefore, the magistrate should not appoint as constable the spouse of the Chief Enforcement Animal Control Officer.
Accounting Not Practice Of Law
The South Carolina Advisory Committee on Standrards of Judicial Conduct opines that a judicial clerk may place a bar number on documents submitted to the IRS:
A newly-licensed attorney, who serves a law clerk for a circuit judge, is also an accountant, though not a CPA. The law clerk has recently prepared some amended tax returns for a friend and is planning on submitting them and an IRS Power of Attorney form to the IRS, so that the law clerk can speak to the IRS as the friend’s accountant. However, to complete the Power of Attorney form, certain qualifications are required; the person submitting the form must either be a CPA or a licensed attorney. The law clerk intends to use his or her South Carolina Bar number for the form to qualify to speak to the IRS. The law clerk will not appear before any court on this matter, but will merely speak to the IRS via telephone. The law clerk inquires as to whether this would constitute the practice of law...
While the inquiring law clerk must complete the IRS’s “Power of Attorney” form by submitting a South Carolina Bar number, it cannot be said discussion of an amended tax return in and of itself “entail[s] specialized legal knowledge and ability,” such that it constitutes the practice of law. In this situation, the discussion would appear to entail specialized knowledge of accounting, which the inquiring law clerk has as an accountant. Thus, the law clerk may use an SC Carolina Bar number on an IRS Power of Attorney form and converse with IRS about that tax return for a friend without practicing law or performing legal services...
Victim Forgives; Court Reinstates
The Louisiana Supreme Court has reinstated an attorney disbarred as a result of a conviction in a judicial sting operation.
The court majority stated that "[m]ost significantly...the victim of petitioner's misconduct has indicated her support of his readmission to the practice of law."
The Louisiana Record in a September 8, 2011 post described the case in its report on the favorable board recommendation:
A former attorney from Al Copeland Investments Inc. who was disbarred as part of an expansive federal corruption investigation has completed the first in a three part process to reinstate his law license.
Former Jefferson Parish attorney Bryan White served jail time and lost his law license after an FBI investigation dubbed "Operation Wrinkled Robe" that exposed widespread corruption in the Jefferson Parish court system.
The Louisiana Attorney Disciplinary Board ruled on August 19 that White had "complied with all terms and conditions of all prior disciplinary orders."
The ruling said, "there is clear and convincing evidence" for White to be reinstated.
Operation Wrinkled Robe was a decade-long investigation and subsequent conviction of over a dozen people including judges, attorneys, policemen and bail bondsmen.
Two judges from the 24th Judicial Circuit were sent to prison and two were fired. The investigation was also used against former federal Judge Thomas Porteous, who was impeached by the United States Congress in March 2010.
White was charged with trying to fix the result of a child custody case between millionaire Al Copeland and his wife with former state Judge Ronald Bodenheimer. White pleaded guilty of knowing of the conspiracy but failing to report it and he was sentenced to a year and a day in prison.
Bodenheimer was sentenced 46 months in prison for a variety of conspiracies, including reducing bonds in exchange for gifts.
Three justices dissented and would deny reinstatement. (Mike Frisch)
January 22, 2012
Alienation Of Affections
An amended complaint filed by the Illinois Administrator alleges that an attorney engaged in unethical behavior with respect to the immigration status of his mother-in-law.
The complaint states that the attorney married a citizen of the Ukraine in April 1998. Mother-in-law came to visit and eventually married one of the attorney's neighbors. The complaint alleges that the attorney made false statements to the Department of Homeland Security and the ARDC about the mother-in-law's living arrangements, i.e., whether she had ever moved out of the attorney's home.
There is more. The attorney's marriage went bad and he blamed his mother-in-law. He did not just get mad; he got litigious.
According to the complaint:
...Respondent caused a complaint and jury demand to be filed against [mother-in-law] Antonia, requesting damages in excess of one million dollars for alienation of [wife] Tanya's affections to Respondent. The complaint alleged that, in part because she was angry that Respondent would not buy her a house, Antonia decided to cause the collapse of Respondent's marriage to Tanya, and had persuaded Tanya to have extra-marital affairs. The complaint contained many personal and embarrassing allegations against Antonia and Tanya, and attached personal emails and photographs of Tanya and her professional dancing partners...
...Respondent caused a complaint and jury demand to be filed against two defendants with whom Respondent alleged Tanya had engaged in extramarital affairs. The complaint requested damages in excess of $1,300,000. The complaint contained many personal and embarrassing allegations against Tanya, and attached personal emails and photographs of Tanya and the two defendants who were Tanya's professional dancing partners...
The first suit was voluntarily dismissed. The second suit was concluded with the grant of summary judgment to the defendants.
The marriage ended in September 2007.
The complaint does not allege the the litigation was frivolous. (Mike Frisch)