February 3, 2012
New book on history of slaves' freedom and manumission lawsuits in the U.S. South
Posted by Alan Childress
Not a legal profession book, to be sure, but perhaps of interest to LPB readers is a new book from the Quid Pro project, Andrew Fede's Roadblocks to Freedom. It just came out in paperback, Kindle, Nook, and Apple iBooks formats, and by Monday in hardback. It is called "...the most comprehensive study of the law of manumission ever written" and "a must read for anyone interested in the legal history of slavery in the American South." More soon on a book decidedly about the U.S. legal profession and legal ethics.
Drug Buyer Not Guilty Of Felony Murder When Seller Shoots Bystander
Criminal Law Professors may find some things of interest in a decision handed down by the Maryland Court of Special Appeals.
The defendant bought some marijuana using fake money. When the seller discovered this, he chased after the defendant. The seller fired a weapon at the buyer and killed a bystander.
The defendant was convicted of misdemeanor possession of marijuana, felony distribution (on a theory that the buyer aids and abets the seller's felony) and felony murder.
Calling the questions of the distribution and murder convictions issues of first impression, the court found the evidence insufficient and reversed both counts. (Mike Frisch)
Real Estate License Misuse, False Statements Draw Suspension
The Wisconsin Supreme Court has imposed a 90-day suspension as reciprocal discipline based on an Illinois sanction for the following misconduct:
Attorney M. obtained a Wisconsin real estate broker's license in 2008. In 2009 Attorney M. used his Wisconsin real estate broker's license to enter a Kenosha, Wisconsin, condominium owned by his client's opponent in litigation, and obtained evidence that he later used in that litigation matter. Attorney M. also made false statements to a police officer investigating [his] entry into the condominium.
Illinois had also suspended the attorney for 90 days. (Mike Frisch)
February 2, 2012
Not A Doctor, Now A Suspended Lawyer
The Massachusetts Supreme Judicial Court has imposed a two-year suspension of an attorney who engaged in false representations concerning her supposed medical education.
The attorney began working for a New York firm as a part-time paralegal and medical consultant. She had four semesters toward a Ph.D. in pathology and had worked as a morgue technician.
She told the firm that she had graduated from College of Physicians and Surgeons of Columbia University. She had not. In reliance, the firm encouraged her to attend law school, paid 75% of her law school tuition, hired her as an associate and held her out as a top 1% Columbia med school graduate.
She was promoted to partner but eventually left the firm. After departure, she brought the information about the false medical degree to the firm's attention.
Boston.com named her a Beautiful Massachusetts Lawyer of 2009. (Mike Frisch)
Increased Sanction After Appeal And Remand Improper
A Texas attorney who had been found to engaged in misconduct in his handling of an appeal of a federal criminal conviction received a two-year suspension from an Evidentiary Panel. He appealed and was able to get one of the charges overturned. In response to the resulting remand, the Evidentiary Panel ordered disbarment.
The Texas Board of Disciplinary Appeals applied the principles of North Carolina v. Pearce to bar discipline and found no basis to impose the greater sanction after the remand. The board imposed a sanction of, in essence, time served for the misconduct.(Mike Frisch)
No Objections To Bill
The New York Appellate Division for the First Judicial Department affirmed an award of legal fees because the client had not timely objected to the invoices:
The record demonstrates that defendants failed to dispute that plaintiff sent them the subject invoices and that no objections were lodged thereto until after this action had been commenced (see Bartning v Bartning, 16 AD3d 249, 250 ). Defendants' challenges to the reasonableness of plaintiff's fees fail. In the context of an account stated pertaining to legal fees, a firm does "not have to establish the reasonableness of its fee" (Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605, 606 , lv denied 17 NY3d 713 ), because "the client's act of holding the statement without objection will be construed as acquiescence as to its correctness" (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 563 , lv dismissed 8 NY3d 840  [internal quotation marks omitted]; see also Tunick v Shaw, 45 AD3d 145, 149 , lv dismissed 10 NY3d 930 ).
Disclosing Information Without Client Consent Violates Duty Of Confidentiality
The Indiana Supreme Court has imposed a public reprimand of an attorney for misconduct in two bankruptcy matters.
The attorney referred the matters to other counsel without advising the clients. He did so because he did not have the software needed for the court filings.
In one matter, the attorney provided confidential financial information to the other counsel's support staff. The court found that a breach of the duty of confidentiality, rejecting the claim that the eventual filing of a public bankruptcy document diminished any problem.
Rather, the providing of the information without client consent violated the ethical duty:
...until the moment a bankruptcy is actually commenced, it is the client's decision whether to make confidential financial information public.
In mitigation, the attorney had practiced without discipline for 44 years. (Mike Frisch)
The Guiding Principle In Reciprocal Discipline
The New York Appellate Division for the First Judicial Department has reciprocally suspended an attorney on terms identical to that imposed in Florida. The misconduct involved the attorney's acceptance of a retainer while serving a previously-imposed suspension.
The court identified the pertinent policy considerations in determing the appropriate sanction:
As to the appropriate sanction, it is generally accepted that the state where an attorney lived and practiced law at the time of the offense has the greatest interest in the matter and in the public policy considerations relevant to the disciplinary action. Therefore, great weight should be accorded to the sanction administered by the state where the charges were originally brought.
In this matter, Florida determined that the appropriate sanction for respondent's conduct was a three-year retroactive suspension and costs, which falls within the range of sanctions that this Court has ordered for failing to comply with a court order. This Court has previously imposed retroactive suspensions, per the original jurisdictions' orders, and there is no reason not to do so here. (citations omitted)
Makes sense to me. (Mike Frisch)
Shampoo, Rinse, Suspend
A disciplinary sanction is summarized in the most recent edition of the California Bar Journal:
[An attorney] was suspended for three years, stayed, placed on three years of probation with an actual six-month suspension and was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. She received credit for an interim suspension from Sept. 5 - Dec. 14, 2007. The order took effect June 18, 2011.
[She] was terminated from the State Bar’s Alternative Discipline Program due to unexcused absences from group/therapy sessions, missed lab tests, having a non-self-reported relapse and not providing an annual certification of completion. She already had admitted several misdemeanor convictions, and because she didn’t complete the ADP successfully was subject to a higher level of discipline.
In 2004, [the attorney] pleaded guilty to misdemeanor hit and run with property damage. A month later, local police responded to a complaint about a fight between roommates, and [she] was arrested and charged with driving under the influence with a prior and driving with a blood alcohol content of more than .08 percent with a prior. ([she] also pleaded no contest and guilty in 2003 to two DUIs and two infractions.)
In 2007, [the attorney] left a hair salon without paying but left a card bearing a different name. The police were called and discovered her other name and prior DUI convictions. [She] later returned to the salon, yelling that her hair was ruined, left $40 of the $240 bill and left. Employees wrote down her license number and police later determined she was driving on a suspended license. She eventually pleaded guilty to petty theft.
In 2008, [She] pleaded no contest to driving under the influence with a prior, a misdemeanor. Some of her convictions involved moral turpitude and others did not.
February 1, 2012
Attorney Disbarred For 1982 Murder Conviction
An order of discipline reported in the February 2012 California Bar Journal:
[An attorney] was disbarred Sept. 14, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
Admitted to the State Bar in 1980, [he] was convicted of murder in Texas in 1982 and was sentenced to 20 years in prison. He was incarcerated from 1982 to 1988, and was then on parole for 14 years.The bar did not become aware of his conviction until 2010.
"All Right, Nikki..."
The Wisconsin Supreme Court has reversed its Court of Appeals and held that a criminal defendant convicted of battery on a law enforcement officer and disorderly conduct was not entitled to a new trial because she used a peremptory challenge to keep the judge's daughter-in-law off the jury:
We conclude that because the defendant exercised a peremptory strike to remove the circuit court judge's daughter-in-law from the jury, and because the defendant does not claim the jury was unfair or partial, a new trial is not required under the circumstances of the present case. The defendant has not shown that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. Accordingly, we reverse the decision of the court of appeals ordering a new trial.
The voir dire of the potential juror is recounted in the opinion:
THE COURT: All right. Nikki, you're my daughter-in-law. All right. I've told the attorneys that you and I have had no discussions about the case, correct?
JUROR STENGEL: Correct.
THE COURT: As a matter of fact, I didn't know until last night that you were coming in as a juror in this matter, right?
JUROR STENGEL: Correct.
THE COURT: Very good. You didn't ask and I wouldn't have excused you anyways so. But you're competent, you can be fair and impartial?
JUROR STENGEL: Uh-huh.
THE COURT: The fact that I'm the judge wouldn't affect your ability in this matter at all?
JUROR STENGEL: No.
THE COURT: Listen to all the evidence and decide the case, correct?
JUROR STENGEL: Correct.
THE COURT: And if we see you after the case, you wouldn't be at all hesitant as to how you decide the case, right?
JUROR STENGEL: Correct.
THE COURT: Very good. And I have told the lawyers about this, so they understand that as well.
The case was remanded to explore claims of ineffective assistance of counsel.The defense counsel had not challenged for cause.(Mike Frisch)
Website Puffery Results In Reprimand
An attorney has been publicly reprimanded by the South Carolina Supreme Court for misconduct described in the court's order:
Upon admission, respondent opened a solo practice, handling primarily domestic and criminal matters. Between July 2010 and July 2011, respondent consulted with 93 potential clients. He opened 79 client files and resolved 25 cases by settlement, guilty plea, or completion of non-litigation legal work (i.e., drafting a deed). Representation of 15 of the opened files ended without resolution of the clients' legal matters. As of July 2010, respondent had never handled any matter involving contested litigation to jury verdict.
In August 2010, respondent began using a law firm website at www.divorcelawyercolumbia.com. In December 2010, respondent added a website at www.dmd-law.net to his law firm marketing. Respondent began using these websites without adequate review of the relevant provisions of the South Carolina Rules of Professional Conduct.
The websites contained the following rule violations:
1. material misrepresentations of fact and omissions of facts necessary to make the statements considered as a whole not materially misleading by mischaracterizing respondent's legal skills and prior successes; falsely stating he handled matters in federal court; falsely stating he graduated from law school in 2005; and, listing approximately 50 practice areas in which he had little or no experience;
2. statements likely to create unjustified expectations about the results respondent could achieve;
3. statements comparing respondent's services with other lawyers' services in ways which could not be factually substantiated; and
4. descriptions and characterizations of the quality of respondent's services.
In addition, respondent set up internet profiles on various online directories and professional marketing sites, including www.lawyers.com, www.lawguru.com, and www.linkedin.com. Respondent relied on company representatives who were lawyers and non-attorney web designers who assured him that the advertisements would comply with respondent's ethical requirements. Respondent did not review the applicable provisions of the South Carolina Rules of Professional Conduct prior to posting the internet profiles. As a result, respondent's internet profiles contained the following:
1. material misrepresentations of fact by overstating and exaggerating respondent's reputation, skill, experience, and past results;
2. a form of the word "specialist" even though respondent is not certified by this Court as a specialist;
3. statements likely to create unjustified expectations about the results respondent could achieve; and
4. descriptions and characterizations of the quality of respondent's services.
The attorney was admitted in May 2010. The discipline was imposed by consent. (Mike Frisch)
False Resume Draws Reciprocal Reprimand
The South Carolina Supreme Court has imposed reciprocal discipline of public reprimand based on a Tennessee sanction for the following misconduct:
Respondent is licensed to practice law in Tennessee and South Carolina. On September 23, 2011, the Supreme Court of Tennessee publicly censured respondent. The Board of Professional Responsibility (the Board) of the Supreme Court of Tennessee specified respondent submitted a false resume to a potential employer and made false statements to disciplinary counsel for the Board.
Respondent reported the public censure to the Office of Disciplinary Counsel (ODC) as required by Rule 29(a), RLDE. ODC submitted a certified copy of the Supreme Court of Tennessee's public censure to the Clerk. In accordance with Rule 29(b), RLDE, the Clerk provided ODC and respondent with thirty (30) days in which to inform the Court of any reason why the imposition of identical discipline in this state was not warranted. ODC filed a response stating it knew of no reason why identical discipline was unwarranted. Respondent did not respond.
After thorough review of the record, we hereby publicly reprimand respondent for her misconduct.
"The Devil Wears Green"
An attorney who has never been admitted to practice in Virginia was suspended for two years with terms in that jurisdiction for misconduct that involved misrepresentations in print advertising and on the Internet about her license status, other acts of dishonesty and unauthorized practice of law. the attorney was admitted in Louisiana and North Carolina but had both licenses suspended.
The attorney was also registered to engage in federal patent and trademark practice.
The Virginia action was initiated when her former North Carolina law partner contacted her Virginia employer.
Among the terms of the suspension is a requirement that the attorney view a CLE video "The Devil Wears Green." She also must refrain from federal PTO practice in Virginia. The sanction was imposed by a three-judge panel.
The Loiusiana order imposing reciprocal discipline based on sanctions imposed in North Carolina is linked here. (Mike Frisch)
January 31, 2012
Fit To Practice
The Oklahoma Supreme Court has reinstated an attorney who had practiced exclusively in the criminal law area. The petitioner had resigned while facing disciplinary charges.
The court described the circumstances that led to suspension:
...In the hearing before the Trial Panel, [petitioner] testified that prior to her resignation she was working as a solo practitioner handling criminal cases. When [she] passed the bar exam, she was working for Paul Brunton and had been employed with his firm about eleven years, first as a secretary, then as a legal intern and upon passage of the bar as an attorney. Within months of her being sworn in, Mr. Brunton was appointed as Federal Defender by the 10th Circuit Court of Appeals. When this happened, she took over Brunton's practice, assuming not only his client list, but also the firm's monthly lease of $1300.
Though [petitioner] was well versed in criminal law, she had no practical experience related to managing the business aspect of a law firm.[She] testified that she accepted all court-appointment requests and never submitted vouchers to be reimbursed for that time. "...I just kind of felt like that was my contribution or my pro bono." [She] also testified that she often conducted her jail visits at night, after her children were in bed, in an attempt to squeeze more hours into each day.
Before long, [she] had taken on too many clients overextending herself both emotionally and physically. It appears that she set extremely high standards, pushing herself far beyond what any one person could handle. [She] reached an acute level of stress by 2004 when she began receiving notice of bar complaints. Rather than addressing the issues, [she] testified that she put the complaints in a drawer and refused to deal with them.
Yet, [she] continued to push herself. Just a few weeks before tendering her resignation, she drove to Denver to present oral argument in a case reassigned to her by the Tenth Circuit.
In her testimony, [she] discussed the reasons she waited more than five years to file for reinstatement, saying that she wanted to make sure she was ready and that she could handle herself being able to say no to clients. It is apparent [she] realizes that agreeing to take on more than she could manage was a dominant factor in the events precipitating her resignation. [Petitioner] testified that she has taken steps to avoid placing herself in similar circumstances by not engaging in criminal defense work and managing her time.
The court concluded that the criteria for reinstatement were satisfied. (Mike Frisch)
Practice Pointer: Don't Use Trust Funds As Collateral For Gambling Debts
The New Jersey Supreme Court agreed with its Disciplinary Review Board that an attorney engaged in an instance of knowing misappropriation and ordered disbarment. The attorney also had used his trust account funds "as a source of collateral to cover gambling debts."
The attorney used a trust check to cover a casino "gambling marker" of over $20,000.
He was admitted to practice in 2002 and had defaulted on the bar charges. (Mike Frisch)
No Judicial Immunity For Attorneys Conducting Judicial Sale
The Maryland Court of Appeals has held that two court-appointed trustees employed by a law firm who conducted the judicial sale of a condominium are not entitled to judicial immunity on claims of fraud and breach of fiduciary duties arising from the sale.
The trustees and the law firm (also sued on a theory of vicarious liability) are not considered to be judicial officers protected by immunity. (Mike Frisch)
January 30, 2012
The Indiana Supreme Court has ordered the suspension of an attorney convicted of felony obstruction of justice, possession of child pornography and voyeurism.
The Evansville Courier Journal had this earlier report:
[William] Wallace, 58, was indicted in June 2010 shortly after a former client of Wallace claimed the attorney videotaped sexual encounters she had with him without her knowledge. She said he suggested that he would forgive legal fees she owed him in exchange for sex. The woman reported that she only learned about the recordings after Wallace allegedly showed them to her boyfriend.
During an April 19, 2010, search of Wallace's house in Princeton, he tried to flee from the house to his garage with various DVDs and an external computer hard drive in his pants. A search of Wallace's computers uncovered child pornography. Police also found recordings of Wallace and the woman having sex.
The suspension was imposed pending final discipline for the convictions.
The Weekly Vice reported that he had run for the position of county prosecutor. (Mike Frisch)
Weisselberg and Li on the White Collar Defense Bar in BigLaw and How it Has Changed
Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:
Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.
Expressly Prohibited By Law
The New Jersey Supreme Court has rejected a recommendation from its Disciplinary Review Board to dismiss all charges against an attorney who conducted a series of condo sales for a seller. The court imposed a reprimand.
The misconduct related to an increase in the state realty transfer fees ("RTF"). In 12 settlements, there was a "forced shifting of the RTF obligation from the seller to the buyers [that] involved [the attorney's] preparation of a written instrument containing terms that he knew were expressly prohibited by law." The court found the misconduct and imposed discipline based on its independent review of the record.
The attorney served as an officer of the seller, which was a retirement community.(Mike Frisch)