Friday, November 30, 2012
The Wisconsin Supreme Court imposed a public reprimand of an attorney for misconduct in the course of representing a client after a conviction on bail-jumping charges.
Among other things, the attorney violated the duty of confidentiality and failed to adhere to the client's chosen course of action.
The court rejected the suggestion that the misconduct was not established by the chosen strategy eventually failed:
Attorney G....argues that his representation of F.B. was proven to be competent by virtue of the fact that a different lawyer, an assistant state public defender, eventually filed a motion making the ineffective assistance claim that D.B. had wanted Attorney G. to pursue, and the circuit court denied this motion.
We reject this argument. Simply because F.B.'s preferred litigation strategy did not succeed does not mean that Attorney G. acted with the legal knowledge, skill, thoroughness, and preparation reasonably necessary to provide competent representation. By rendering legal advice without speaking to his client, reading trial transcripts or reviewing key evidence, Attorney G. failed to provide competent representation.
Attorney G. next attempts to persuade us that F.B. was to blame for the lack of lawyer-client communication, and that additional such communication was unnecessary given his familiarity with F.B.'s case.
We reject this argument. Attorney G.'s argument does not alter the established facts that: (1) Attorney G. never consulted with F.B. before filing the sentence modification motion, and (2) Attorney G. never sought to withdraw the motion after learning of F.B.'s disapproval of the motion. By any measure, these are troublesome failures in lawyer-client communication.
The Massachusetts Committee on Judicial Ethics has a recent opinion on the propriety of a judge in a small community hearing cases in which his former law firm appears.
The Code does not mandate your recusal from all cases in which attorneys from the Firm appear before you, unless you were involved in the matter in controversy while you were at the Firm. The two-part Lena test therefore applies, and you have already conducted the subjective component and concluded that you can handle the Firm's matters impartially. The objective test remains, and you are in a better position than the Committee to determine whether a disinterested observer would question your impartiality in handling Firm matters given your eleven-year absence from the Firm, the lack of relationship between you and the attorneys who have joined the Firm during that eleven-year period, and the disruption to the court, attorneys, and litigants that your frequent recusals cause.
The web page of the Iowa Supreme Court has a summary of issues presented in a disciplinary matter that is scheduled for decision today:
The issues raised on appeal include: (1) whether Iowa’s substantive ethics rules apply when an alleged ethical violation occurred during representation in a case that was pending in a different jurisdiction; (2) whether this case should have been dismissed under the comity doctrine; (3) whether the Grievance Commission exceeded its authority and determined substantive questions of tribal law; (4) whether ethics claims against an attorney, who was at all times acting as an agent for a foreign government, must be brought in the foreign government’s court system; (5) whether the Board needed new authorization to file a second action when a first action against the attorney had been dismissed and closed; (6) whether repossession is the practice of law in Iowa; (7) whether the Board provided adequate notice of its claims; (8) whether the commission erred in denying respondent’s motion to compel when the Board failed to provide a privilege log prior to the commission’s ruling; (9) whether the grievance commission erred in excluding as witnesses or barring respondent from calling as witnesses attorneys who are representatives of the Board; (10) whether the commission erred in ruling on motions before the due date for reply briefs.
In addition to the issues raised in the briefs, the case also involves a motion as to whether the Board, or the attorney representing the Board, should be sanctioned for filing frivolous documents during this appeal.
The decision is now available. The court found that the attorney had not violated any ethics rules and dismissed the matter.
The allegations involved the removal of a computer server with software in which the client had an interest in a dispute with a company called DNA Today.
The court found that the use of "self help" was not prejudicial to the administration of justice and found
it unnecessary to resolve many of the rather interesting issues identified above. (Mike Frisch)
Thursday, November 29, 2012
An attorney who had signed the names of judges to five subpoenas without permission has been struck from the rolls by the New York Appellate Division for the First Judicial Department:
...respondent states that on or about April 10, 2012, she appeared in Brooklyn Supreme Court, Criminal Term, on behalf of the New York City Department of Probation, as the assigned attorney on a probation violation hearing. Two representatives of drug treatment programs appeared pursuant to subpoenas they had received, and questioned the validity of the subpoenas which were purportedly signed by Supreme Court Judge Michael Brennan. On that day Supreme Court Judge Vincent Del Guidice presided over the matter in Judge Brennan's absence and took possession of the subpoenas for further investigation. The City of New York Department of Investigation conducted an investigation following which they referred the matter to the Kings County District Attorney's Office for criminal prosecution against respondent. In exchange for a non-criminal plea offer, respondent agreed to resign from the practice of law in the State of New York. Respondent further admits that she improperly prepared the two subpoenas by signing Judge Brennan's signature on one, and printing his name on the other, without his permission or authority.
Additionally, respondent admits that in three unrelated matters, she improperly "issued" judicial subpoenas by printing the judges' names without permission or authority. With respect to two of those subpoenas, one dated April 18, 2011 and the other October 31, 2011, respondent printed Judge Brennan's name on the signature line, and with the third subpoena, dated July 21, 2011, respondent typed in Judge Matthew J. D'Emic's name on the signature line.
The New York Appellate Division for the Third Judicial Department has imposed a censure as reciprocal discipline of an attorney who had been reprimanded in Delaware.
We reported on the Delaware discipline, which involved the attorney's false report to 911 of an hostage situation which, according to the court here, "precipitated a predictable police response." (Mike Frisch)
In a display of efficiency all too uncommon in the D.C. bar disciplinary system, the District of Columbia Court of Appeals imposed reciprocal discipline in seven matters without referring a single one to the Board on Professional Responsibility ("BPR").
The seven cases can be found at this link.
The most interesting one of the bunch is a case from Massachusetts in which the court imposed a two-year suspension with fitness.
As reflected in this summary from the Massachusetts Board of Bar Overseers, the attorney had falsely claimed that she had a medical degree to her law firm. The law firm then relied on the false representation in marketing her services.
Under the prior reciprocal discipline rules, these cases all would have gone to the BPR for a recommendation. Bar CouIt would have used up limited resources, taken years to decide and perhaps even resulted in contested litigation before the court. (Mike Frisch)
For the second time in two days, the Ohio Supreme Court has disapproved an application for bar admission and cited unpaid student loans as a factor.
The applicant graduated from the University of Dayton in May 2009.
Two concerns were raised by the Dayton Bar Association admissions committee in its interview with the applicant: (1) his failure to disclose his dismissal from Golden Gate University School of Law in 1998 for poor academic performance and (2) his default on "significant student-loan debt."
A second interview "did not go well" and revealed dishonesty on his 1992 application to Detroit College of Law. He also had an uncooperative attitude.
The court noted that the applicant "never made a single payment on the $32,300 in student loans that he had accumulated" as an undergraduate and law student. The loans are in default and "he has no plans to begin repayment because he simply does not have the money....His complete disregard of his financial obligations does not inspire confidence..."
As to eventual bar admission: "In order to be a viable candidate...[he] must obtain full-time employment, devise a strategy to satisfy his significant debt, and fully cooperate in the admissions process."
He may apply again in July 2014. (Mike Frisch)
Wednesday, November 28, 2012
From the web page of the Ohio Supreme Court:
The law license of Columbus attorney Christopher T. Cicero has been suspended for one year for improperly disclosing to former Ohio State University football coach Jim Tressel information that Cicero obtained during consultations with a prospective client.
In a 5-2 decision announced today, the Supreme Court of Ohio adopted findings by the Board of Commissioners on Grievances and Discipline that Cicero violated two provisions of the Rules of Professional Conduct by sending emails to Tressel in which Cicero disclosed information he had received from Edward Rife, the owner of a tattoo parlor frequented by OSU football players, who consulted with Cicero about possible representation in a federal investigation of Rife’s alleged involvement in drug trafficking.
In those emails, Cicero told Tressel that a number of his players had apparently given or sold team memorabilia to Rife in exchange for tattoos, and that dozens of those items, including Big Ten championship rings and athletic jerseys and shoes autographed by the players, had been confiscated by federal authorities during a raid on Rife’s home in connection with the drug trafficking investigation.
The board concluded that, although Rife was ultimately represented by a different attorney, Stephen Palmer, and never retained Cicero’s services, Cicero violated Rule 1.18 of the Rules of Professional Conduct, which requires an attorney to maintain the confidentiality of information gained through consultation with a prospective client. The board also found that Cicero had engaged in conduct that reflected adversely on his fitness to practice law.
Writing for the court, Justice Judith Ann Lanzinger rejected Cicero’s argument that his interactions with Rife did not support a finding that Rife was a prospective client.
Justice Lanzinger wrote: “We agree with the board that relator has proved by clear and convincing evidence that Rife was a prospective client of Cicero. As the panel found, the two discussed the possibility of a client-lawyer relationship; Cicero admitted this in his e-mails to Tressel, and Rife testified as to the discussion. Rife’s testimony was corroborated by Palmer, who testified that Rife had told him soon after the meeting with Cicero that Cicero had quoted him a fee. Rife met with Cicero on April 15 to discuss his case, and Cicero offered legal advice in response to Rife’s questions.”
“While we recognize that some limitations on the rule’s protection to prospective clients may be justified, those limitations do not come into play here. Indeed, this case goes to the very heart of confidentiality between a prospective client and an attorney. Before obtaining representation, clients must meet with attorneys, and attorneys often must obtain sensitive information before they can decide whether to represent a client. Prospective clients trust that their confidences will be protected when they engage in an initial consultation with an attorney. Cicero’s almost immediate dissemination of the detailed information that Rife provided on April 15 directly violated that trust. This conduct violates Prof.Cond.R. 1.18, as well as Prof.Cond.R. 8.4(h), which prohibits a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.”
In setting the sanction for Cicero’s misconduct, the court noted the mitigating factor that Cicero has an excellent reputation among attorneys and judges for professional integrity and competence. It also noted the aggravating factors that Cicero was previously suspended for misconduct in 1997, that his primary motive for disclosing Rife’s confidential statements to Tressel was self-aggrandizement, that the board found some of his hearing testimony to be disingenuous and not credible, that he refused to acknowledge the wrongful nature of his conduct, and that his disclosure of Rife’s involvement in the player memorabilia transactions exposed Rife and his family to criticism and harassment because of the negative impact of those events on the OSU football program.
Noting that this is the first case in which the court has addressed a violation of Prof.Cond.R. 1.18 since its adoption in 2007, Justice Lanzinger compared Cicero’s misconduct to several similar cases and determined that a one-year license suspension was commensurate with his offense and the multiple aggravating factors found by the board.
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Robert R. Cupp and Yvette McGee Brown.
Justice Evelyn Lundberg Stratton entered a dissent, joined by Justice Terrence O’Donnell, in which she agreed with the rule violations found by the majority but said she would impose a stayed six-month license suspension as the appropriate sanction.
Justice Stratton wrote that in her view “Cicero’s intentions were not for personal aggrandizement or personal gain, as found by the majority, but were to alert the coach about misconduct by his players that could affect the team. His request that such information be held confidential does not support the notion that he was trying to seek fame. That conclusion is contrary to the content of the e-mails. Therefore, I respectfully dissent.”
The opinion is linked here. (Mike Frisch)
The Ohio Supreme Court has disapproved the application for bar admission of a 2011 graduate of Capital University Law School.
There were three character issues addressed in the court's opinion.
One involved an incident in a first year law school exam:
...concern [was] expressed about [her] truthfulness based on her explanation that she had failed her real-property class during her first semester of law school because she failed to place her assigned exam number on the exam. She claimed she had written the number on the palm of her hand but that her sweaty palms had rendered the number illegible. The committee's investigation... revealed that while [she] may have lost some points based on her failure to use her assigned number, she had also performed poorly on the exam.
There were also concerns about her handling of finances and "the most serious area," which involved lack of truthfulness in explaining a 2008 traffic stop.
The court noted findings below that the applicant had "used her mother's name, birth date and Social Security number in an attempt to avoid responsibility for driving with an expired driver's license."
The applicant may apply to take the bar exam in July 2014 and will be required to undergo a complete new character and fitness invesigation. (Mike Frisch)
Tuesday, November 27, 2012
The criminal conviction of a yoga teacher accused of beating her husband nearly to death with his own baseball bat has been affirmed by the Maine Supreme Judicial Court.
The focus of the court's opinion was on allegations of prosecutorial misconduct in arguments.
The prosecutor had, among other things, improperly speculated as to what the family dog (Zoe) might have been thinking and used the phrase "I think" several times in closing argument.
The court did not conclude that the misconduct was a basis to overturn the conviction.
Details here from BDNMaine Portland.
ABC 20/20 had this earlier report. (Mike Frisch)
The New York Court of Appeals has affirmed a decision not to disqualify a county district attorney and his staff from prosecuting a criminal case relating to illegal steroid and other prescription sales over the internet. The court agreed with the Appellate Division that the trial court had exceeded his authority in ordering disqualification and directing the appointment of a special district attorney.
The alleged conflict of interest involved a civil suit brought by the criminal defendants after the district attorney had dismissed an indictment. A virtually identical indictment was obtained "well before the defendants filed the civil suit."
...while we refrain from concluding that a civil law suit commenced by a criminal defendant against a duly elected district attorney in the midst of a pending prosecution will never warrant disqualification of such district attorney, we see no basis for petitioner's disqualification here.
In a high-profile bar disciplinary case brought against a workers' compensation arbitrator who engaged in multiple ex parte contacts with attorneys, an Illinois Hearing Board has recommended a two-year suspension:
...the Respondent was the presiding official in the workers' compensation cases and, thus, the person who was required to be, and to appear to be, an impartial arbitrator. She failed miserably in that regard. By being in a position of authority and presiding in the cases in which the other three attorneys represented a party, the Respondent could have clearly stopped the exchange of ex parte e-mails by simply informing the other attorneys not to communicate with her ex parte in regard to any pending matter. Instead, the Respondent affirmatively participated in the ex parte communications and induced O'Sullivan, Barringer, and Nadenbush to continue to communicate with her in that manner. The ex parte e-mails the Respondent exchanged with O'Sullivan, Barringer, and Nadenbush discussed the merits of pending cases, contained disparaging comments about their opposing attorneys, and even contained advice from the Respondent regarding the handling of the cases.
The seriousness of Respondent's misconduct with respect to her actions concerning the setting of a secret hearing in a case before her is, in our opinion, profound, and she exhibited a total absence of understanding of, and responsibility for, her complicity in, and of the gravity of, her actions in that regard.
Freedom of the press, as embodied in the 1st Amendment to the United States Constitution, and the freedom to speak, write and publish freely, as embodied in Article I, Section 4, of the Illinois Constitution, are protected and priceless rights. But those rights are not protected if the performing of public functions, including, as in this case, the holding of an administrative hearing, are kept from the media and the public. Every attorney is, upon admission to the Bar, sworn to uphold the laws of the land, which include these constitutional rights of freedom of speech and freedom of the press. Conspiring to keep an administrative hearing secret, as Respondent did, was nothing less than an intentional failure to comply with her responsibilities as a member of the Bar. Moreover, during her testimony Respondent said nothing that indicates to us she understands or is remorseful for that misconduct, but instead she complained that a news organization's reporting had prevented her from obtaining employment in the legal profession.
The Respondent intentionally and repeatedly engaged in misconduct that jeopardized the appearance of her impartiality and the very integrity of workers' compensation proceedings. In addition, the Respondent deliberately set a special hearing in a case for the purpose of preventing the news media from attending the hearing, and then instructed two attorneys to make false statements if they were asked about the reason for the special setting.
Separate bar disciplinary cases were brought against the attorneys involved in the contacts at issue here. (Mike Frisch)
So, Mike Frisch's catalog of lawyer foibles has not only put this blog into the ABA Journal's Blawg 100 every year since the award's inception, but the editors of that esteemed publication have seen fit to induct this blog into the inaugural class of its Blawg 100 Hall of Fame.
A fitting tribute. Alan, Nancy, and I tip our collective hats and say "thanks for the hard work." We are proud to be associated with you, Mike.
From the web page of the Ohio Supreme Court:
The law license of [a] Cleveland attorney...has been suspended for two years, with the second year stayed on conditions, for multiple violations of state attorney discipline rules.
In a 7-0 per curiam opinion announced today, the Supreme Court of Ohio adopted findings by the Board of Commissioners on Grievances and Discipline that after accepting fee advances to represent clients in several Chapter 13 bankruptcy cases, [the attorney] failed to file required documents, failed to appear at scheduled court hearings, and otherwise failed to provide competent representation to his clients.
In one instance, the court found that [he] filed a bankruptcy action in the name of a person who had died three years earlier, in the mistaken belief that person’s estate could still seek bankruptcy protection from the deceased’s creditors.
The court agreed with the board’s conclusions that [his] conduct violated, among others, the state disciplinary rules that require an attorney to act with reasonable diligence and provide competent representation, and rules that prohibit an attorney from failing to carry out a contract of employment, engaging in conduct prejudicial to the administration of justice, and bringing or defending a legal claim that is unsupported by law or a good faith argument.
As the appropriate sanction for these violations, the court imposed a two-year license suspension with the second year stayed on the conditions that [he] engage in no further misconduct, complete six hours of continuing legal education in law office management in addition to the general biennial requirements, and complete one year of monitored probation during which the monitor should insure that [he] practices only in those areas of law in which he is competent.
The court's opinion is linked here. (Mike Frisch)
Monday, November 26, 2012
The illinois Supreme Court has ordered a three-year suspension of an attorney for his involvement in online chats with two individuals who had represented themselves to be underage girls.
The report and recommendation of the Review Board set forth some facts:
Respondent testified that he is not sexually interested in minors and did not believe that Amy Girl or Brati were underage. He believed he was "role-playing" with adult women. Respondent testified that he has "zero interest" in urination for sexual gratification and that his "urine chat" was a "vehicle that would often get me to somebody who was willing to engage with me quickly and to get to that point of sexual arousal." Respondent denied any sexual attraction to urination because [t]his has never carried over into any realistic situations." When asked whether he was interested in children between the ages of 12 and 17, Respondent answered, "Absolutely not." Respondent testified that if he ever engaged with someone he sensed was a child, he "would click off." He further testified that he did not "click off" when Amy Girl said she was 12 because people misrepresented their age all the time so "it wasn't registering. I didn't think about it."
There was mitigation evidence:
The Hearing Board gave substantial weight to the character evidence from Respondent's three rabbis. The rabbis strongly believe that Respondent is a fundamentally good person who made mistakes and is trying to make up for them. Although the rabbis were not aware of the extent of Respondent's addiction or of some of the more sordid details of his acts, we have no reason to disregard their testimony about Respondent's remorse and commitment to his rehabilitation. That said, Respondent's character evidence does not substantially impact our recommendation due to the severity of Respondent's misconduct.
The Hearing Board determined that Respondent's misconduct did not involve the practice of law. However, Respondent admittedly engaged in sexually related online chats while at work for a corporation where he was employed as in house counsel. On at least two occasions as part of his communications with Brati he transmitted video of himself masturbating and ejaculating on his office desk. Respondent readily acknowledged that, had he been discovered, his behavior would have caused "[e]mbarrassment to the company, embarrassment to my colleagues, embarrassment to the department, embarrassment to, you know, many people on many levels."
The Maine Supreme Judicial Court has affirmed a criminal conviction of a defendant who was charged and convicted of crimes after he evaded a police roadblock, hid in the woods from law enforcement for over a week and then emerged to hold schhoolchildren hostage at gunpoint.
The trial court had allowed the defendant to represent himself and appointed standby counsel.
The court here found no violation of the defendant's right to hybrid representation. The court also rejected the argument that the legal process against the defendant was a RICO conspiracy.
The standby counsel should have been a dentist -- attorney Jeffrey Toothaker. (Mike Frisch)
The South Carolina Supreme Court has publicly reprimanded the General Counsel of the state Department of Motor Vehicles.
The general counsel and Disciplinary Counsel entered into a consent agreement for discipline.
The general counsel was involved a jurisdictional dispute with judges over returned tickets. He willfully refused to comply with over twenty orders to return tickets. Rather, he sent letters explaining his view of the law rather than obey the court's orders.
He filed a judicial ethics complaint against a judge that was dismissed. Thereafter, he "ceased the practice of sending the letters, as well as unilaterally deciding what court orders he would follow based on his own view of the law."
The basis for discipline were the ex parte contacts of sending his letters, which were copied to counsel for defendants but not to defendants who were pro se. (MIke Frisch)
The New York Appellate Division for the Second Judicial Department has imposed a two-year suspension as reciprocal discipline based on a sanction imposed in California.
The court noted the attorney's contentions:
By letter dated February 8, 2012, the respondent explained that, in 2002, "I agreed to an active suspension of my California Bar (sic) for two years. Never was this intended to be used as a sword to pierce my ability to earn money. I am very proud of my legal license and will fight to protect my name and reputation." He added that, at the time in question, "I was the most vulnerable that I have ever been." According to the respondent, his then-wife and oldest child were continually hospitalized with life-threatening illnesses. The respondent alleged that he was "unprepared and unable emotionally to fight." The respondent thereafter complied with the California State Bar requirements for reinstatement of his license and passed the professional responsibility test in the spring of 2004. However, he asserted that he "didn't reinstate" his license in California because he no longer lived there.
The respondent learned of New York's interest in the California proceedings in or about 2007 and again last Fall. In his letter dated February 8, 2012, he requested an adjournment or extension of time to secure counsel, stating that, in his opinion, it would be neither fair nor equitable for New York to pursue this matter any further.
The court did not permit relitigation of the California findings. (Mike Frisch)
Sunday, November 25, 2012
Posted by Jeff Lipshaw
The op-ed section of the Boston Globe this morning has a piece extolling the "benefit corporation,"* the statutory basis for which takes effect in Massachusetts this coming Saturday.
The headline reads "Virtue Inc. Can a new kind of charter give corporations a conscience?"
Interesting. That is a deeply profound question out there at the cutting edge of science and philosophy of mind. Normally it plays out in questions of the limits (or not) of artificial intelligence. Can artificial neural nets give computers consciousness - that is, an inner experience and self-awareness? Indeed, just this past Friday the New York Times contemplated how far "deep learning" programs have progressed in replicating the pattern recognition capabilities of the human mind. But will consciousness ever be reducible to scientific explanation? (See, e.g., Daniel Dennett and Douglas Hofstadter for the affirmative and David Chalmers for the negative in that debate.)
Personally, I think an entity has to be conscious to have conscience. Hannah Arendt said this:
It took language a long time until it separated the word consciousness from conscience, and in some languages, for instance in French, such a separation never happened. Conscience, as we use it in moral orlegal matters, supposedly is always present within us, just like consciousness. And this con-science is also supposed to tell us what to do and what to repent of; it was the voice of God before it became the lumen naturale or Kant’s practical reason.Corporations are legal structures. By definition they are artificial. Even if the artificial intelligence people can create a machine that passes the Turing Test and fools me into thinking it's thinking (and therefore might have a conscience), no corporation statute, charter, bylaws, or series of board resolutions is ever going to approach the algorithmic complexity of decision-making and judgment that it would take for a corporation to have either consciousness or conscience.