October 27, 2012
Rebecca Aviel Earns Zacharias Prize
Touro Law Center's Samuel Levine let us know that the recipient of this year's Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism. The award will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at the Palace Cafe on Canal Street.
Get the molten chocolate dessert, Sam! [Alan Childress]
October 27, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
October 26, 2012
A Dead Issue
The Massachusetts Supreme Judicial Court has remanded with orders to vacate a decision revoking the license of a funeral director and embalmer.
After an adjudicatory hearing, the Board of Registration of Funeral Directors and Embalmers (board) issued an order permanently revoking Troy J. Schoeller's licenses to do business in the Commonwealth as a funeral director and embalmer. G.L. c. 112, §§ 61, 84. The disciplinary action arose after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller. Schoeller did not reveal any confidential or private information about any deceased person or bereaved family members whom he had served. Rather, the board found that Schoeller had violated an ethical regulation prohibiting an embalmer from "comment[ing] on the condition of any dead human body entrusted to his or her care," 239 Code Mass. Regs. § 3.13(7) (1998), and that he had used unprofessional language in his descriptions of dead bodies. By doing so, the board concluded, Schoeller had "engaged in gross misconduct and unprofessional conduct which undermines the integrity of the profession." Schoeller filed a petition in the county court, pursuant to G.L. c. 112, § 64, seeking review of the board's order. The single justice reserved and reported the case without decision.
The board's action violated First Amendment protections:
...while there may be circumstances in which the board can appropriately seek to limit the speech rights of licensed funeral directors and embalmers...in proscribing all "undignified" comments, the board has "traveled in the constitutionally unacceptable direction," Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 201 (2005), of banning a substantial amount of protected speech. The board cannot apply § 3.13(7) to restrict such a wide range of speech, nor may it limit that speech by relying on a generalized notion of the integrity of the funeral services profession.
The case is Schoeller v. Board of Registration of Funeral Directors and Embalmers, decided today. (Mike Frisch)
October 25, 2012
Letter To Prosecutor Violated Defense Attorney's Duty Of Confidentiality
The Illinois Review Board has recommended a six-month suspension of an attorney for misconduct in the course of defending two criminal cases.
In one case, the client had denied any involvement in a murder for which he had been charged. Five days before trial, the client's story underwent a dramatic change and was revealed to the attorney.
The attorney violated his duty of confidentiality by disclosing the new story to the prosecutor:
The next day Respondent faxed a letter to Assistant State's Attorney, Duke Harris. In the letter, Respondent described in detail the shooting scenario that [his client] Mays had disclosed to Respondent. He informed Harris that his client and Shaw went to Spinks' apartment. Spinks opened the door, but when he saw the defendant and Shaw, he tried to close the door. Mays tried to "put his arm through the door to get in." According to the letter "the door hit the gun which Shaw had in his hand and it discharged" killing Spinks. The Respondent hoped the letter would persuade Harris that a lesser offense charge would be more appropriate for Mays. Respondent explained to the Hearing Board that his letter was "an attempt to get a plea agreement" and to let the assistant state's attorney know what testimony "my client would have to offer," presumably against Shaw. He did not consider that the letter could be viewed as an admission by Mays to the crimes of home invasion or felony murder. He told the Hearing Board that he did not know the felony murder law. On August 27, 2009, in an effort to persuade two witnesses to talk to him the Respondent also sent letters to Kathleen Faber and Roger Brown, in which he disclosed the information Mays had told him about the shooting scenario.
On August 28, 2009, Respondent received an e-mail from Assistant State's Attorney Harris informing the Respondent that Harris was going to file additional charges of home invasion and felony murder against Mays. On August 31, 2009, he did so filing a motion to file the additional charges against Mays. Respondent objected, claimed he was surprised by the new charges and requested a continuance of the trial. At the hearing on the motion, the prosecutor argued that the letter was "tantamount to a confession to a felony murder", that the charges could not come as a surprise to Respondent, and that it was therefore appropriate for the State to add the additional charges. The court agreed and granted the State's motion. The court denied Respondent's request for a continuance.
The attorney attempted to withdraw on the morning of the trial. The court denied the motion and the defendant was convicted.
In the disciplinary case, the attorney conceded that he did not have the client's informed consent to the disclosure. (Mike Frisch)
Phone Conversation Created Attorney-Client Relationship
The New York Appellate Division for the Third Judicial Department imposed a stayed one-year suspension of an attorney for misconduct in two matters.
In a criminal case, the attorney had a telephone conversation with the girlfriend of his client in a criminal matter. The conversation established an attorney-client relationship with the girlfriend, who had her own criminal exposure. He then used confidential information she had given him to cross-examine her. The conduct violated conflicts of interest rules.
In the second matter, he failed to have a required written retainer agreement with a matrimonial client. (Mike Frisch)
Law Of Stepniece Disqualification Explored
A recent opinion from the Florida Judicial Ethics Advisory Committee:ISSUES
1. If a judge’s stepniece is employed as an attorney with the Public Defender’s Office, is the judge’s disqualification required in all criminal cases in which a public defender is involved?
2. If a judge’s stepniece appears before the judge, is the judge per se disqualified pursuant to Canon 3E, Code of Judicial Conduct?
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and the stepniece.
3. Should the judge disclose that the judge’s stepniece is appearing before the judge as an attorney in a criminal case?
The inquiring judge currently presides over a criminal division, and attorneys with the Public Defender’s Office regularly appear before the judge. When the judge was a child, the judge’s mother remarried a person who, by a previous marriage, had a child (stepsister to the judge). The stepsister never lived with the judge, and the stepsister has a child (stepniece to the judge). The judge’s stepniece just passed the bar and is an attorney with the Public Defender’s Office. The inquiring judge has not advised this Committee of how close of a relationship the judge has with the stepniece. The judge’s stepfather is deceased.
Ethics Opinion On Confidentiality And In-House Counsel Claims Against Employer
A recently-issued opinion of the District of Columbia Bar Legal Ethics Committee concludes:
An in–house lawyer may not disclose or use her employer/client’s confidences or secrets in support of the lawyer’s claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer’s conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer’s confidences or secrets insofar as reasonably
necessary to respond to the employer/client’s contention. An in–house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer’s claim.
October 24, 2012
Shame Now The Name Of the Game: Judge Censured For Sharing Digital Image
The Michigan Supreme Court has publicly censured Circuit Court Judge Wade McCree based on a consent agreement.
The misconduct involved the judge's use of his cell phone to make a digital image of himself after completing a half-marathon. The image was shown to a number of people, including those "who worked in or passed through his courtroom."
The image was provided to a reporter for a television station. As a result, the judge was interviewed. He treated the interview in a "flippant" manner and said, "There is no shame in my game."
The interview and image "spread rapidly around the internet and became the subject of jokes and ridicule."
The judge is sorry now. The image is not part of the court's order.
Here it is, courtesy of FoxNews.com. (Mike Frisch)
Public Protection Requires Disbarment
The North Dakota Supreme Court has accepted findings of misconduct but rejected a proposed three year suspension in a matter involving misappropriation of entrusted funds.
The court imposed disbarment, rejecting the arguments of the Office of Disciplinary Counsel for a lesser sanction because of the attorney's conduct after the misconduct was uncovered:
Disciplinary counsel argues there must be an incentive for attorneys to admit violations, cooperate in the disciplinary process, and take steps to undo the damage they have caused. We agree. As a result, disciplinary counsel further argues that McDonagh's cooperation and restitution outweighs the seriousness of his violations and the presumptive sanction of disbarment. We disagree. For example, in Disciplinary Bd. v. Mahler, the disciplinary board recommended an attorney be disbarred for a trust account and fee violation. 2012 ND 124, ¶ 1, 819 N.W.2d 489. Mahler deposited a $2,500.00 retainer into his operating account rather than into a trust account, and spent the retainer money before any fees were earned. Id. at ¶ 3. He also charged a higher fee than agreed to, and failed to diligently represent the client. Id. Mahler admitted the underlying facts and consented to discipline. Id. at ¶ 5. We rejected the recommended sanction of disbarment, ruling it was "inconsistent with and disproportionate to discipline imposed in similar circumstances." Id. at ¶ 8.
In this case, the recommendation was a three year suspension for much more serious violations than Mahler's by an attorney who also admitted the violations and cooperated with the investigation. While it is important to promote cooperation and restitution, the protection of the public and the profession is paramount. We must weigh the seriousness of McDonagh's violations and be consistent in the imposition of disciplinary sanctions for the same or similar violations. McDonagh engaged in a very serious pattern of deceit, including forging documents, lying to business associates, and misapplying client funds. In this case, the aggravating factors outweigh the mitigating factors, and disbarment is the appropriate sanction.
As a former disciplinary counsel, I find the issue of providing incentives to cooperate with the bar to be one worthy of further discussion. If an attorney truly self-reports (i.e. reveals misconduct when there is no likelihood of discovery), I think that a court might treat such conduct as a basis to avoid disbarment. (Mike Frisch)
Run For Office Ends With Suspension
The Pennsylvania Supreme Court has accepted a consent disposition and imposed a two-year suspension of an attorney who violated the state election code.
The attorney pled guilty to 17 counts of filing nominating petitions that "contained forged signatures of electors, and/or forged signatures of fictitious individuals, and/or false statements made by Defendant in signing affidavits of circulator."
The petitions were in connection with the attorney's efforts to obtain a variety of elected offices, both as Republican and Democrat. The positions included District Attorney, District Judge and Judge of the Court of Common Pleas. (Mike Frisch)
October 23, 2012
Lawyer At First Sight
An Arizona disciplinary panel has recommended that a petition for reinstatement be denied.
The attorney had accepted a six-month suspension in 2007 and was required to petition for reinstatement due to the time lapse.
The panel found that his application was "incomplete" and that he had intentionally omitted multiple unfavorable documents from the application.
Also, the panel rejected a doctor's evidence in support of reinstatement.
[The doctor] also stated that [petitioner's] four divorces only reflect poor judgment skills regarding women, but not the practice of law, but never explained why such recurrent theme might not become a stressor again. The discounting of a stressing factor previously identified by the doctor, but now declared a nonfactor, was puzzling and simply not credible.
The doctor has the wonderful name of Jack Potts. Perhaps the good doctor should set up a Nevada practice.
The particular stress that led to the suspension was the result of the attorney's July 2005 marriage to "a woman he met on a dating website that he had known for only 9 days." He testified that the marriage reflected his poor judgment.
The attorney came to believe that his new wife had "sought him out because she needed legal assistance with child custody suits pertaining to her four children" and later learned that she was an exotic dancer.
He and his wife obtained restraining orders against each other and the attorney "was arrested three times in a period of three or four months, once for violating a restraining order and twice for false charges of domestic violence." (Mike Frisch)
Suspension For Failure To Pay Child Support
An attorney who failed to pay court-ordered child support has been suspended for a year and a day by the Colorado Presiding Disciplinary Judge.
The unpaid obligation was approximately $15,000. The attorney had not paId or arranged a plan for satisfying the arrearages.
He had been on interim suspension. (Mike Frisch)
"Pure Hearts And Empty Heads"
The Delaware Supreme Court has affirmed a trial court holding applying an objective standard to the determination whether a Rule 11 violation has taken place.
The court extended an earlier decision "to bar judges from sanctioning attorneys except where the attorney's conduct prejudically disrupts the administration of justice in a particular case."
The trial court had issued two sua sponte orders to show cause to an attorney concerning his representations to the court in representing a client in an asbestos suit. A $25,000 penalty was imposed on the attorney.
The court here reaffirmed the objective standard: "Delaware demands more from attorneys than pure hearts and empty heads."
However, the trial court did abuse its discretion in imposing sanction. The first contempt order involved his incorrect citation of a case, where he relied on a faulty memory; the second a failure to make a "thorough" argument.
Neither lapse rose to a sanctionable level: "The practice of law imposes many informal penalties on attorneys who do not make thorough arguments. Rule 11 sanctions are not among them."
The court vacated the sanction, noting that its holding "is not intended to leave a judge confronted with an attorney's problematic behavior without recourse. The Office of Disciplinary Counsel is well equipped to investigate attorneys and recommend appropriate action." (Mike Frisch)
No Private Sanction
The Rhode Island Supreme Court has ordered a public censure of an attorney without pled nolo contendere to charges arising from a motor vehicle accident.
The charges involved two felony counts of leaving the accident scene and a misdemeanor driving under the influence of liqour. He was sentenced to probation in the criminal case.
The court noted that the attorney had asked for private discipline. In the court's view, the case was "very similar" to one decided in 2011 in which a public censure was imposed: "We see no reason to impose a lesser sanction in this case." (Mike Frisch)
Sufficient Cooperation, Insufficient Supervision
The New York Court of Appeals has remitted a disciplinary matter in which the Appellate Division for the Second Judicial Department had imposed a two year suspension.
The court agreed that the attorney had failed to supervise a non-lawyer employee (his brother) who misappropriated entrusted funds. the attorney's conduct was not venal but nonetheless breached his fiduciary obligations to clients.
The court did not sustain charges of failure to coopeate with the bar investigation in light of the attorney's active participation in the process. The case was returned to consider sanction without that charge. (Mike Frisch)
October 22, 2012
The Worst Hearing Committee Report In D.C. Bar History
I have been carefully reviewing a District of Columbia hearing committee report issued recently that exonerates four attorneys on charges of conflicts of interest and dishonesty in a case involving the alleged abuse and manipulation of an elderly woman "client."
The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.
After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.
The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.
In particular, the hearing committee viciously attacks the complainant (the woman's loving daughter) as biased and incredible.
She was angry and upset with the attorneys and was not a lawyer or legal ethics expert herself. Thus, her entire testimony was ignored due to so-called "bias."
In my opinion, she had every right to be furious with the attorneys who had manipulated and endangered her mother and, based on this execrable report, has every right to regard the self-regulated legal profession as a fraud on the public.
As to the conflict, the hearing committee reasoned that the woman loved her son and wished for "peace in the family." Thus, there was no need to explore the significant conflicts in the dual representations or deal with the overwhelming evidence of her incompetence and inability to consent to the conflict when she "retained" them.
In sum, the report reflects the most superficial reasoning and failure to comprehend fundamental principles of legal ethics that I've seen in nearly 30 years of reading these reports.
When I read the report, I wondered about the background of the committee chair and surprise, surprise: He's an elder care lawyer. He signed (and presumably authored) an opinion that makes it nearly impossible to prosecute lawyer elder abuse. A classic "fox guards henhouse" approach to bar discipline.
And then, this from the committee chair's law partner hits my in box:
My partner, John Quinn, chaired a Board on Professional Responsibility panel which decided the attached case against Bar Counsel and in favor of the lawyers involved.The case spanned several years and the opinion is 219 pages. It is the only case known to the Hearing Committee that squarely deals with the difference between legal compentency and legal capacity. I recommend reading it in that it involved charges of Bar Counsel of conflicts of interest, dishonesty, fraud and other ethical violations against several attorneys alleging that they represented a client who Bar Counsel alleged was "incompetent…suffered from cognitive impairment..and memory problems." The report cites the relevant cases and other authorities that are pertinent and useful to practitioners.
I find this shocking, but at least it makes the agenda of this report crystal clear: protect the profession, trash the victim of misconduct (and discourage other victims from coming forward), make future Bar Counsel prosecutions virtually impossible and use the whole thing as a marketing tool.
It also is noteworthy that it took the hearing committee over 2 1/2 years to produce this whitewash, notwithstanding a rule that requires that the report be filed within 120 days of the close of the hearing.
The title to this post reflects my opinion. It calls to mind one of my favorite Seinfeld lines from Elaine to Jerry: "Just when I think you are the shallowest man I've ever met, you manage to drain a little more out of the pool."
Just when I think these reports can't possibly get any worse, one like this one shows up. (Mike Frisch)