December 7, 2012
Custody Interference Draws Stayed Suspension
An attorney who was convicted on a plea of no contest to a misdemeanor charge of interfering with a custody order was given a stayed three-month suspension by the Pennsylvania Supreme Court.
The attorney, along with two others, attempted to take her twelve-year-old son from the custody of her ex-husband.
The sanction was consented to by the attorney and disciplinary counsel. (Mike Frisch)
Charging Legal Fees For Non-Legal Services
The Louisiana Supreme Court has imposed a two-year suspension with restitution of an attorney who charged and failed to refund excessive fees.
One client suffered from Huntingtion's disease. The attorney charged him hourly legal fees for both legal and non-legal services, such as driving him around and assisting in moving household belongings.
The court found the fees excessive, noting that the issue of charging fees at legal rates for non-attorney services had not been previously addressed.
The court quoted a case from Ohio that in turn quoted a Tennessee case:
...an attorney may not serve in a self-appointed role as a paraclete, comforter, helper, or hand holder, under the guise of legal services and at a lawyer's compensation rate.
The court held that the evidence failed to establish that the client had diminished legal capacity as a result of his condition.
A dissent would find the sanction, as well as the fees, excessive. (Mike Frisch)
Lipstick, Pigs And Bar Discipline
With particularly sharply-worded language in a special concurrence and dissent, the Iowa Supreme Court has imposed an indefinite suspension of no less than six months of an attorney convicted of misprison of felony in connection with the representation of a client.
The attorney facilitated the overstatement of the sales price in a real estate transaction.
Justice Waterman's concurring opinion asserts that dissenting Justice Wiggins unfairly characterizes the underlying criminal conduct as "stealing" when the attorney did not steal "a dime." Rather, the dissent "gets the facts wrong, and then misapplies our precedent."
Justice Wiggins would impose permanent license revocation:
The majority avoids revoking [the attorney's] license by suggesting this is not a real theft. This characterization is akin to putting lipstick on a pig. The truth to this colloquialism is apparent: no matter how much lipstick you apply, it is still a pig...Stealing is stealing.
The court majority noted that the attorney has practiced for over 30 years without discipline, enjoyed a fine reputation in his community and devoted himself to a number of good works.
The same sanction was imposed in a second matter involving an attorney with over 40 years of practice and a strong record of community and public service. The attorney was convicted of making a false statement on a mortgage application. He served as a "straw man" for his client, the true purchaser of the residential home.
Justice Wiggins dissented and cited his reasons as reflected in the above dissent. (Mike Frisch)
The New Jersey Supreme Court has entered orders suspending for three months a husband and wife law partners who were charged with misconduct during the course of their law practice.
The Disciplinary Review Board had recommended that the husband be suspended for three months and the wife disbarred for knowing misappropriation of entrusted funds.
The court rejected the DRB's finding that intentional misappropriation had been proved by clear and convincing evidence against the wife. Rather (and without explanation), the court stated that its review of the record found that the misappropriation was a result of negligence.
The links take you to the DRB report (a single document available at both links) and the court orders. (MIke Frisch)
December 6, 2012
Lack Of Candor
An attorney who failed to disclose the extent of his child-support arrearages and a bankruptcy petition in his bar admission application was disbarred by the New York Appellate Division for the Third Judicial Department.
The attorney was also subject to reciprocal discipline matters and did not participate in this proceeding. (Mike Frisch)
What I Did For Love
In a case involving intentional misappropriation of entrusted funds over an extended period, the Ohio Supreme Court imposed a fully-stayed two-year suspension with conditions.
The attorney had practiced for over 30 years. Part of this practice was personal injury plaintiffs work.
When his wife left him in 2005, he became obsessed with getting her back. He lent over $69,500 in escrowed funds to his wife starting in 2009. The money was in escrow while the attorney's negogiated over third party claims.
The money was used to fund her private investigator business.
The misconduct extended over a 17-month period and was revealed by an account overdraft.
When the misconduct came to light, the attorney was fully cooperative. He sought mental health treatment and consulted with the bar's lawyer assistance program. No client was harmed and restitution was made.
A fine feature of the Ohio Supreme Court is that it makes oral arguments available on video. This argument in this case is linked here. (Mike Frisch)
Age-Associated Cognitive Decline And Bar Discipline
The problems of the aging attorney were addressed in a disciplinary decision issued yesterday by the Ohio Supreme Court.
The attorney was charged with ethical violations in his handling of an estate matter. During the course of his testimony, he was "confused" in recounting his work. As a result, he agreed to submit to an examination by a medical professional.
The examination resulted in a diagnosis that the 71-year-old attorney suffers from "age-associated cognitive decline."
The court found that the condition was neither a mitigating factor nor a mental illness and imposed a two-year suspension with 18 months stayed on conditions. (Mike Frisch)
More On Ohio Bar Admission
We have reported a number of recent bar admissions decisions of the Ohio Supreme Court. The court issued two opinions on the subject yesterday.
The court denied the application to sit for the bar examination of an applicant who had engaged in a scheme to defraud her landlord in order to avoid lease obligations. The applicant also displayed a lack of candor in the admissions process. The court rejected a recommendation to forever bar the applicant's admission and will permit her to reapply in July 2014.
Another application presented a most unusual factual situation. The applicant failed the bar examination and gave "unresponsive" answers to the exam questions, leading to questi an inquiry into her mental fitness to practice.
She gave "rambling" testimony at the ensuing hearing and stated that a legal career was not a good choice for her. She also testified that she was greatly displeased with the direction of the country (particulary the Kelo decision) and that she had tried to communicate with God and Jesus during the exam. She testified that the Lord forbade her to practice law.
The court will permit reapplication in 2014. (Mike Frisch)
December 4, 2012
No Impleader In Bar Discipline Cases
An attorney who is the subject of a bar disciplinary proceeding sought to implead the Utah Down Syndrome Foundation pursuant to Rule 14(a) of the Utah Rules of Civil Procedure. The motion was granted by the district court.
On interlocultory review sought by the Foundation, the Utah Supreme Court held that the governing standards "do not permit litigation of collateral matters in disciplinary proceedings." Thus, the Foundation is entitled to summary judgment.
The attorney was retained by two individuals to represent the Foundation and two Utah chapters. A court had concluded that the two individuals did not have authority to retain him. At issues were fees paid to the attorney that he was ordered to disgorge to the Foundation.
The court here noted the "unique, separate nature of attorney discipline cases" and found civil impleader "not consistent" with the disciplinary regime. Thus, the district court abused its discretion in allowing the filing of a third-party complaint in the bar discipline matter. (Mike Frisch)
Leaving Battery Park
An attorney who was sanctioned in civil litigation where she acted as her own attorney has been suspended for six months by the New York Appellate Division for the First Judicial Department.
This matter arises from a 10-year litigation wherein respondent alleged that she was fraudulently induced to vacate her federally-subsidized Battery Park City apartment. The litigation resulted in, among other things, two Civil Court decisions and one Supreme Court decision imposing monetary sanctions against respondent totaling approximately $8,783. The observations of the courts and/or referees who sanctioned respondent included that her conduct was "indicative of harassment and an abuse of the judicial process" and "mean spirited and vexatious," and that her "inappropriate use of the courts" resulted in "needless expense in the defense of a frivolous lawsuit." She was sanctioned for "years of vituperative litigation," frivolous motion practice, and intentional misrepresentations to the court.
The attorney contended
At the sanction hearing, respondent challenged the jurisdiction of this Court and the DDC on the grounds that she has never maintained an office for the practice of law within the First Department, that she has not practiced law since 2002, and that the sanctions imposed against her arose from her conduct as a party-litigant, not as an attorney. Respondent admitted that she had not paid the sanctions, nor did she intend to do so. Respondent also testified that she suffers from, among other things, a serious immune deficiency condition that has resulted in serious illnesses, some of which have been life threatening. Respondent also testified that she has been treated for cancer, and that her only source of income was disability benefits.
The court rejected the jurisdictional argument but treated the health issues as a mitigating factor. (Mike Frisch)
Lawyer Reprimanded, Had Trouble Finding Imprisoned Client
The Wisconsin Supreme Court imposed a public reprimand and terminated an interim suspension for failure to cooperate in a case where a young attorney failed to properly handle a post-conviction matter.
The attorney's initial response to the client's complaint:
The letter said, "[K.W.] is certainly entitled to his frustration; I can only apologize for my inattentiveness. . . . I will not repeat my mistakes." Attorney R....claimed he had never received the letters K.W. had sent him because his offices had moved. The letter went on to say, "I'm a rather inexperienced attorney, so I wasn't sure how to find you in the prison system." Attorney R. said he was waiting for transcripts from K.W.'s case. The letter concluded by saying, "I'm sorry things got so messed up——I'll bend my efforts toward assessing your appeal with all possible speed."
On December 4, 2008, Attorney Lund [of the State Public Defender] wrote to Attorney R. documenting his unsuccessful efforts to get a response from Attorney Read. Attorney Lund said, "Your unwillingness to respond to me and, apparently, to your client is simply unacceptable." Attorney Lund provided K.W.'s new address at Columbia Correctional Institution and asked that Attorney R. contact both K.W. and Attorney Lund immediately.
After this response, the attorney was offered diversion, but the problems continued:
K.W. wrote to Attorney Lund complaining that Attorney R. was not keeping him apprised of the status of his appeal and was not contacting him at all. On June 11, 2009, Attorney R. wrote to K.W. saying that he had driven to Portage to meet with K.W. on June 6 but that he had been turned away because the Department of Corrections (DOC) or the institution has a regulation that people with obvious flu or cold symptoms may not visit. Attorney R. said he was no longer sick and promised to return every Saturday until he was able to meet with K.W.
An interim suspension was imposed when the attorney failed to respond to the renewed complaint, which had been held in abeyance due to the diversion agreement. (Mike Frisch)
December 3, 2012
Disbarment Proposed For Predatory Prosecutor
An Illinois Hearing Board has recommended disbarment in a case involving the following charges:
The first amended Complaint alleged Respondent engaged in inappropriate conduct in two instances while employed as an assistant state's attorney in Carroll County. In the first count, the Administrator alleged that Respondent overreached his position of trust as a prosecutor when he began a personal relationship with a defendant, K.I., in a case he prosecuted. Respondent engaged in a discussion with K.I. while she was in jail. After K.I. was sentenced and released from custody, Respondent had another conversation of a personal nature. Subsequently, Respondent took K.I. out to dinner, and while in the car, touched her leg and kissed her. The following day, Respondent sent K.I. four text messages.
In the second count, Respondent, in his capacity as a prosecutor, charged A.F. with child pornography for taking pictures of J.C., who was 14 years old when the pictures were taken. During the course of the prosecution of the case, Respondent developed a personal relationship with J.C. and her family. As a result of that relationship, Respondent was removed from the case, but he continued therelationship with J.C. and her family. On February 22, 2010, when J.C. was 17 years old, she was at Respondent's apartment, and he kissed her and touched her breast.
As to sanction:
We base this recommendation on the facts that Respondent was in a position of trust and authority, used that position to take advantage of vulnerable girls, and has demonstrated no acknowledgment of his misconduct. We place substantial weight on Dr. Henry's expert opinion that Respondent lacked an understanding of the relationship between an attorney and defendant or client, and that Respondent believed there was nothing wrong with the relationships he had with J.C. and K.I. Most importantly, Dr. Henry concluded that without treatment, Respondent is at risk to engage in similar conduct in the future, especially with vulnerable and susceptible clients. Given that attorneys meet and represent vulnerable and susceptible clients every day, Respondent is a threat to the community at large. Accordingly, we find that the only way to protect the public from further misconduct is to disbar Respondent.
Lawyers And Court Clerks Alike
In an opinion released today, the Massachusetts Supreme Judicial Court affirmed a single's justice's dismissal of a disciplinary action against an assiastant court clek:
The single justice accurately and succinctly stated the governing principles in his memorandum and order:
"Just as a private individual cannot, in her own right, prosecute an action in court seeking professional discipline of an attorney, see Slotnick v. Pike, 374 Mass. 822 (1977), a private individual such as the petitioner cannot prosecute a court action to obtain discipline of a clerk. See also Matter of a Request for Investigation of an Attorney, 449 Mass. 1013 (2007), and cases cited. The petitioner is free to file a complaint with the Committee on Professional Responsibility for Clerks
of the Courts, pursuant to S.J.C. Rule 3:13, [as appearing in 407 Mass. 1308 (1990),] if she has not already done so. The committee was established for this specific purpose. It is empowered to receive complaints such as this; conduct investigations and hearings of the type sought by the petitioner; dismiss, informally adjust, or otherwise dispose of complaints; pursue formal charges against a clerk if warranted; and make appropriate recommendations to the court regarding any disciplinary action to be taken. The creation of the committee did not abrogate the authority of the court in this area, but the fact remains that a private individual cannot invoke the court's authority in the manner attempted by the petitioner."
The petitioner's observation that the cases cited by the single justice involved bar discipline, and not clerk discipline, misses the mark. The same principles that apply to the Board of Bar Overseers and the discipline of attorneys apply with equal force here. A private individual may file a complaint with the board, or in this case the Committee on Professional Responsibility for Clerks of the Courts, and may be a witness in the proceedings before the board or committee, but he or she is not a party to the disciplinary process. It is the board that is responsible for prosecuting complaints against attorneys, and the committee that is responsible for prosecuting complaints against clerks. There is no private right to operate the disciplinary process. In addition to the cases cited by the single justice, see Gorbatova v. Semuels (No. 1), 462 Mass. 1012 (2012).
The case is Gorbatova v. First Assistant Clerk of the Supreme Judicial Court for the County of Suffolk. (Mike Frisch)
Reprimand For Free Consultation That Got Billed
The Ohio Supreme Court has publicly reprimanded two attorneys who had advertised a free consultation on their web page but charged for the intial consult after they had been retained.
Justice Lundberg Stratton dissented:
Because the rules for advertising a free consultation have never been made clear, I would issue an opinion in this case, but I would find that the standards that it provides should apply prospectively only, to give notice to the bar for the requiremebnts for this type of advertising.
Here, respondents were entitled to begin earning their fee once they were retained, and they did in fact perform the work that they billed. Their only error was to fail to advise their client that billable time had started. That is a communication error, not an ethical violation. If we are to make it a violation, we should do so only with fair notice to the bar...
The Indiana Supreme Court refused to enjoin the activities of an Ohio attorney retained to provide post-conviction relief to a defendant convicted of murder in Indiana.
The court rejected the contention that the attorney's travel to Indiana to interview and collect witness affidavits consituted the unauthorized practice of law.
The attorney was suspended in Ohio during the course of the representation.
The court here found that there was insufficient evidence that temporary admission would have been denied to the attorney because there was a pending disciplinary case in Ohio. There were no acts of unauthorized practice after the Ohio suspension order.
Injunction denied. (Mike Frisch)
Bar Counsel Chided By Kentucky Supreme Court
With pointedly admonitory language to Bar Counsel, the Kentucky Supreme Court imposed a suspension of 181 days of an attorney who had failed to appear in courts on behalf of himself and others.
The court's concerns were procedural in nature and related to Bar Counsel's approach:
While KBA disciplinary proceedings are frequently treated as prosecutorial in nature, they are not criminal proceedings. Rather, they are civil disciplinary matters carried out by an agency of this Court. Bar Counsel seems to conflate disciplinary proceedings with criminal plea bargains or guilty pleas, or civil settlement agreements, whereby the judge maintains a role throughout the negotiation process, including approval of the parties' agreement. We caution Bar Counsel not to conflate a Trial Commissioner with a trial court, nor Bar Counsel with a prosecutor. While there are some similarities, the rules indicate neither is identical in function or authority.
We need not remind Bar Counsel that it is the province of this Court, not Bar Counsel, to interpret its own rules.
Notwithstanding its procedural concerns, the court found that the disposition was not "patently unfair" and ended three years of ongoing investigations. (Mike Frisch)
Sex Talk With Defendants Gets Prosecutor Suspended
The Tennessee Supreme Court has ordered a 45 day suspension and probation of an assistant district attorney.
According to this notice, the attorney violated ethics rules by
engaging in conversation of a sexual nature with two criminal defendants who were being prosecuted by the Disterict Attorney's office for which he also worked. He was not the Assistant District Attorney assigned to those cases; however, he admitted that both defendants were represented by counsel and that he did not have permission to speak with either defendant. The conversations...were inappropriate and there was a potential risk for conflict of interest and abuse of power.
The attorney must perform ten hours of pro bono services and contact the Lawyers Assistance Program.
WMC TV.com reports that he also lost his job. (Mike Frisch)