October 11, 2012
Westlaw Misconduct Draws Reciprocal Reprimand
The Oregon Supreme Court imposed the identical reciprocal discipline of a public reprimand based on a sanction imposed by the Hawai'i Supreme Court.
The misconduct involved an attorney who served as a Special Prosecutor for the Republic of Palau.
The attorney entered into a contract on behalf of his office with Thomson Reuters for Westlaw services and received two passwords to access the account. He attempted to cancel the contract when he moved to a position with the Legal Aid Society of Hawai'i.
He admitted that he had improperly used the Westlaw service for 14 months in the course of representing indigent clients.
The Oregon State Bar sought a six-month suspension as reciprocal discipline.
The court rejected the proposed sanction, concluding that the conduct at issue was dishonest but not criminal. (Mike Frisch)
Attorney's Creditor Not Entitled To Invoke Escrow Rule
The Michigan Attorney Discipline Board has concluded that there is insufficient evidence of any ethical violations and dismissed a matter in which a tri-county panel found misconduct.
The accused attorney represented another attorney in a client dispute in probate court. Sanctions of over $31,000 were imposed against the client and paid to the respondent attorney's law firm.
The sanctions were reversed on appeal and the client sought repayment from the respondent and/or his firm. The probate court denied the relief sought and a bar complaint was filed.
The board found that the situation did not implicate Rule 1.15 (safekeeping property).
The rule does not "contain within it a requirement subjecting an attorney to professional discipline whenever an attorney's creditor does not receive prompt payment of a sum (not held in trust and properly so) that an attorney's creditor in 'entitled to receive' " (Mike Frisch)
A Few Phone Calls Do Not Establish Continuous Representation
The "continuous representation doctrine did not save a claim of legal malpractice from dismissal on statute of limitations grounds, according to a recent decision of the New York Appellate Division of the First Judicial Department:
Defendants made out a prima facie showing that the three-year statutory limitations period (CPLR 214) expired before this legal malpractice action was commenced in July 2010. Plaintiffs failed to raise an issue of fact whether the doctrine of continuous representation applied here to toll the limitations period. The only evidence plaintiffs submitted on this issue was an affidavit by the husband of one of the plaintiffs, not a party to plaintiffs' retainer agreement with defendants, stating that he spoke to the individual defendant four times between January and May 2007. Even assuming the husband had the authority to speak for plaintiffs, the intermittent telephone contact between himself and defendants does not constitute "clear indicia of an ongoing, developing and dependent relationship between the client and the attorney" or of "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (citations omitted)
The dismissal of a related breach of fiduciary duty claim was also affirmed. (Mike Frisch)
A Mentor's Bad Advice Leads To Judicial Censure
A judge of the New York Surrogate's Court has been censured for "accepting $250,000 in 'disguised contributions' to her 2008 campaign for judicial office and failing to report the contributions as required."
The Commission on Judicial Conduct noted that the judge was an inexperienced judicial candidate who had relied on the bad advice of her friend and mentor, who was the campaign contributor.
The judge and her mentor were indicted on election law violations. All charges were either dismissed or led to acquittal by the jury.
Her term of office expires in 2002. (Mike Frisch)
Reprimand For Uninsured Status Non-Disclosure
The Ohio Supreme Court has imposed a public reprimand of an attorney who violated a rule that requires an attorney to give clients written notice that the attorney does not have malpractice insurance.
The attorney was already on probation for other misconduct. The Akron Bar Association discovered the insurance disclosure issue while investigating the violations that led the court to order a two-year probation.
The court considered favorable character testimony in determining that the probation should continue. (Mike Frisch)
October 10, 2012
The South Carolina Supreme Court has rejected a proposed admonition and ordered a public reprimand of an attorney for misconduct in a car accident civil suit.
The client met with the attorney after prior counsel had been relieved. They discussed the case. When the case was next called in court, the client advised the judge that he had retained the attorney. The attorney later appeared and confirmed that he was retained.
The attorney failed to attend to the case, which was eventually dismissed. As one might expect, a bar grievance was filed.
The attorney claimed he was not retained because no fee agreement was signed. His alternative defense was that he was representing the client diligently. We lawyers call that inconsistent theories of the case.
The court held that the rules required a written fee agreement "are designed to protect the clients from inadequate representation, not to determine the existence of an attorney-client relationship." The client had reason to believe that the attorney represented him and the relationship was established as a matter of law.
The attorney also must complete ethics school within six months. (Mike Frisch)
Limited Remand For Mitigation Evidence
The Ohio Supreme Court remanded a disciplinary case rather than impose the proposed sanction of permanent disbarment.
The attorney is already serving an indefinite suspension. He defaulted on charges in six matters. Before the court, he sought to introduce evidence of his depression as mitigation.
The court noted that remands in such cases have been granted in a small, but growing, number of cases. Remand is granted in such matters for the limited purpose of establishing that the attorney suffers from a treatable condition.
The attorney had failed to honor an earlier commitment to treatment through the Bar's counseling program but wishes to explore renewed supervision. (Mike Frisch)
October 9, 2012
Retained Counsel No Bargain
A defendant who was convicted of attempted first degree murder and aggravated battery with a firearm became unhappy with the appellate representation of the public defender. Through his mother, he retained as counsel the father of a friend. The retained attorney's ensuing neglect caused the appeal to be dismissed.
An Illinois Hearing Board has recommended an eighteen-month suspension:
In aggravation we consider, the harm caused by Respondent's inaction. As a consequence of Respondent's misconduct, Lance's appeal was dismissed for want of prosecution. Respondent's inaction deprived Lance of his constitutional right to appeal his criminal conviction. The Supreme Court has recognized that since this type of harm "is less susceptible to monetary valuation or remedy than the loss of a civil suit for damages, more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." See In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990). Further, Respondent's failure to provide Lance with copies of his transcripts has delayed Lance in seeking any alternative post-conviction relief and required Lance to file pro se motions with the Appellate Court, which has needlessly burdened both the court and Lance.
Additionally, Patsy was negatively affected by Respondent's misconduct. While Patsy ultimately received a refund of the $10,000 retainer fee she paid Respondent, she was without that money for approximately two years. In addition, after contacting the ARDC about Respondent, Patsy had to wait another year for her refund, which she ultimately received in full after the hearing in this matter. Given Patsy's poor financial circumstances, the deprivation of this money had a
significant impact on her. Moreover, Patsy, after having paid Respondent, did not have the financial means to hire another attorney to represent her son, which has also delayed Lance in seeking post-conviction relief. Furthermore, the legal profession was clearly harmed by Respondent's conduct, as evidenced by Lance's testimony that he will never again trust another attorney and Patsy's testimony that she no longer trusts anyone.
The attorney had a record of prior discipline. (Mike Frisch)
Insouciance Not Helpful In Bar Discipline Case
An attorney who accepted fees for services in an immigration matter and failed to perform as retained also failed to respond to the ensuing bar complaint.
As a result, the Virginia State Bar Disciplinary Board revoked his license to practice law in the Commonwealth.
The board noted that Bar Counsel had sought revocation for both the misconduct and the attorney's "insouciance" in responding. (Mike Frisch)
No Litigation Privilege In Malpractice Claim
The New Jersey Appellate Division has held that the litigation privilege does not apply in a lawsuit filed against a lawyer by a former client alleging legal malpractice.
The court was considering the plaintiff's appeal in a case involving allegation of malpractice in a bankruptcy matter. The case was reversed in part and remanded in light of the holding. (Mike Frisch)
The Utmost Importance
From the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the law license of Cleveland Heights attorney James Alexander Jr. for one year, with the final six months of that term stayed, for violations of the Rules of Professional Conduct.
In a 7-0 per curiam opinion, the court adopted findings by its Board of Commissioners on Grievances & Discipline that Alexander improperly commingled his own funds with funds held for clients in his law office trust account, used his trust account to pay personal and business expenses, and allowed his wife to write checks against his trust account.
The board also found that Alexander improperly divided a client’s fee with another attorney without the client’s written consent, violated the disciplinary rules that require an attorney to keep accurate records of client funds in his possession and reconcile his client trust account on a monthly basis, and engaged in conduct that adversely reflects on his fitness to practice law.
In setting the sanction for this misconduct, the court noted that maintaining a strict separation between an attorney’s own funds and funds he holds in trust for clients is a matter “of the utmost importance,” and wrote: “When we consider Alexander’s prolonged misuse of his (trust account), his failure to keep adequate records of client funds in his possession, and his improper fee splitting, we believe that respondent has displayed a general disregard of the rules of professional conduct, which warrants an actual suspension.”
As conditions for staying the final six months of Alexander’s suspension, the court ordered that he must commit no further misconduct, complete an extra six hours of continuing legal education coursework in law office management and trust fund maintenance, complete one year of probation that includes monitoring of his trust account by an attorney appointed by disciplinary counsel, and pay restitution of $175 to PNC Bank.
The opinion is linked here. (Mike Frisch)
October 7, 2012
Cell Phone In Jail Cell No Crime
The Nevada Supreme Court has affirmed the dismissal of criminal charges brought against a jail inmate who was found concealing a cell phone in his jail cell.
The defendant was charged under a statute that prohibits possesssion of an item that can be used for escape. The court concluded that "it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell." (Mike Frisch)