Friday, February 17, 2012
From the Florida Judical Ethics Advisory Committee:
May a judge attend a victory party for a person who was elected, without opposition, to a position such as mayor of the city in which the judge resides?
The inquiring judge is a candidate for reelection and asks whether the specified contemplated conduct is permissible under Canon 7 of the Florida Code of Judicial Conduct. The inquiring judge states that the elected official is a friend and it is possible that more than just people of one particular political party would attend and the victory party is not for one particular group.
Here, although it is possible that the attendees would belong to more than one political organization and the party is not for one particular group, it appears that the party is not a “purely social function,” but a part of the campaign of the judge’s friend as it is a victory party to celebrate a successful candidacy. As the cited Committee opinions indicate, the judge’s “action” in appearing at a “campaign-related event” such as a victory party could give the impression that the judge endorsed the friend’s candidacy for public office. The fact that the candidacy was unopposed does not negate such conclusion as section 105.071(4) prohibits the endorsement of any candidate. Consistent with the reasoning of the above-cited opinions and the standards set forth in Canon 2A and Canon 7A(1)(b), the appearance of impropriety created when the judge attends a celebration for a candidate suggests that the judge should not attend the victory party.
The opinion is linked here. (Mike Frisch)
The Iowa Supreme Court has imposed a suspension of six months in a matter where the attorney failed to return an "inadvertant overpayment of fees."
The attorney handled a marriage dissolution case. The client paid a $500 retainer. When the matter was concluded, the attorney sent a final invoice that failed to credit the $500 that had already been paid. The client and her spouse split the payment, each overpaying $250.They had not discovered the error. As a result, the attorney got $500 more than the amount to which he was entitled.
To make matters worse, he did not address the articulated concerns when the error in his favor was discovered. This inattention led to a small claims action and a bar complaint. (Mike Frisch)
From the web page of the Ohio Supreme Court:
A record 126 new cases and other matters were filed with or referred to the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline in 2011, an annual report released today shows.
The board conducts evidentiary hearings and issues findings and recommendations to the Supreme Court on serious ethical misconduct complaints lodged against Ohio attorneys and judges.
“There were 115 formal complaints certified to the board, two of which involved allegations of judicial misconduct and judicial campaign conduct complaints, for a total of 117 new cases presented to the board,” according to the report.
“In addition, the Supreme Court directed the board to review seven petitions from lawyers who were seeking reinstatement to the practice of law following indefinite suspensions, and the board received two petitions from lawyers seeking reinstatement following mental illness suspensions.”
Rick Dove, secretary to the board, also pointed to the retirements of two long-time staff members as another significant event in 2011. Dove replaced longtime secretary, Jonathan W. Marshall, and Michelle Hall replaced Ruth Bope Dangel as counsel to the board. Marshall and Dangel each served at least 20 years with the board.
Even with the significant leadership transition, Dove said the board executed the responsibilities delegated by the Supreme Court and continued its education/outreach activities to enhance compliance with and understanding of professional conduct standards applicable to the bench and bar.
The board is composed of 28 members, appointed by the Supreme Court. Four are public members, seven are active or retired judges and 17 are lawyers throughout the state.
View the report to learn more about these milestones and others that occurred in 2011.
The report focuses more on the component parts of the disciplinary system than the details of the cases. I'd like to see the numbers broken down into the nature of the misconduct, the practice setting, and things of that nature. I do like the fact that this report provides some detail about the bar discipline budget.
Every disciplinary system should have a publicly-available annual report. If lawyers wish to retain the privilege of self-regulation, the report should be sufficently detailed so as to demonstrate that discipline is imposed with the public interest in mind rather that the parochial, self-interested concerns of the organized bar.
My Bar (the District of Columbia) does not make this information readily available. Indeed, the general lack of transparency of the D.C. Bar is a subject worthy of a separate post. (Mike Frisch)
The Florida Supreme Court has imposed a 91-day suspension of an attorney for misconduct in federal bankruptcy matters.
The attorney's misconduct related to the representation of two clients. The bankruptcy court found, among other things, that the attorney filed frivolous pleadings and repeatedly made allegations that were "incorrect or false." A $14,000 sanction was imposed in one of the matters. The attorney also continued to file pleadings after she no longer represented anyone in a matter.
The attorney claimed that the disciplinary proceeding improperly relied upon the findings of the bankruptcy court. The court here held that it is proper to rely on facts established in orders and decisions by other tribunals. (Mike Frisch)
Thursday, February 16, 2012
The Fayette County prosecutor had been publicly reprimanded by the Indiana Supreme Court.
The husband of one of his employees was arrested for the theft of metal pipes that he sold to a scrap yard. He claimed that he thought the pipes were abandoned. The owner had a different view.
The prosecutor did not seek the appointment of a special prosecutor. Rather, he handled the matter himself. He spoke to the arresting officer. No charges were filed.
He had no record of prior discipline and has served as a police officer for 20 years and a prosecutor for nine years. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging misconduct by an attorney who represented a drug defendant.
The complaint states that the attorney received a video of the undercover drug purchase in discovery. He allegedly showed the video to "approximately 20 people who were not related to [the] case" in violation of governing rules.
In or about April 2011, Respondent caused the video to be uploaded in two parts to an internet website known as YouTube (www.youtube.com) and entitled them, "Cops and Task Force Planting Drugs – Part 1" and "Cops and Task Force Planting Drugs – Part 2."
Respondent released the videos from his custody into the possession of John Hamann, an employee of the Quincy, Illinois company ‘Pyrographics,’ to be posted on the internet website YouTube. Respondent paid Pyrographics $233.75 for this service.
At no time did Respondent inform [the client] that he intended to post the videos on YouTube.
At no time did [the client] authorize Respondent to post the videos on YouTube.
The videos posted on YouTube were described by Respondent as a "drug plant" and implied that the Drug Task Force engaged in improper or illegal conduct by entrapping [the client]. The videos also showed the identity of a confidential source.
On or about April 11, 2011, Respondent posted a link to the videos on his page of an internet website known as Facebook (www.facebook.com), which would take a visitor from Respondent’s Facebook page directly to the videos on YouTube.
On April 20, 2011, the Pike County State’s Attorney, in case no. 11 CF 15, filed a motion for sanctions alleging Respondent violated the discovery rules by disseminating the videos.
On May 20, 2011, the court found that Respondent had violated Rule 415(c) and ordered Respondent to remove the videos from the internet.
Between March 4, 2011, when Respondent received the discovery in case no. 11 CF 15, and May 20, 2011, when Respondent was ordered by the court to remove the videos, the videos received more than 2,000 hits on YouTube.
Let's see how this one progresses. (Mike Frisch)
The Tennessee Supreme Court has suspended an attorney for one year.
According to the summary on the web page of the Board of Professional Responsibility, the attorney "represented a client in General Sessions Court and signed and made bond for that client in violation of a state statute prohibiting an attorney from such conduct."
The attorney failed to respond to the disciplinary charges. (Mike Frisch)
Wednesday, February 15, 2012
The Minnesota Supreme Court has imposed reciprocal disbarment of an attorney disbarred in Arizona in March 2009.
The attorney was disbarred in Arizona for numerous ethical violations that included misappropriation. The disbarment was imposed under her married name.
She then moved to Minnesota, where she also was admitted. She failed to inform disciplinary counsel of her disbarment. Rather, she began to practice under her maiden name. The Arizona Bar notified Minnesota of the discipline. (Mike Frisch)
The Oklahoma Supreme Court has reinstated an attorney admitted in 1992 who resigned with pending charges in 2005. He had a record of discipline that preceded the resignation.
From the court's opinion:
The petitioner testified that he was a sole-practitioner who took on more cases than he could adequately handle. He handled primarily criminal defense matters and, because he speaks Spanish, he took on a large number of cases representing Hispanics, many of which were pro bono. The petitioner realizes that he overloaded himself and was unable to manage his practice. He worked long hours and was affected physically by the stress of his practice. He now recognizes that he should have refused to take on so many cases, and that he should have gotten help. When questioned as to his reason for resigning, the petitioner stated: "There was just so much. I had two grievances pending and I was stressed out and I realized I wasn't doing as well as I should be doing and I resigned." Tr. pp. 73-74. The petitioner expressed remorse for his conduct and the disrepute that he brought on the profession. He fully accepts responsibility for his failures. He states that he has matured a great deal and has realized that he cannot help everybody. He is now living a more slow-paced life and is raising ducks, chickens and pheasants at his home on Lake Fort Gibson and is enjoying hobbies such as fishing. To ensure that he keeps his practice under control he plans to limit his law practice to part-time, if readmitted. He testified that he would like to practice immigration law and that he will not undertake major criminal cases. He will look to other attorneys and to the OBA for help when needed. He intends to do some pro bono work for elderly and disabled members of the Cherokee Nation. He would like to be of help to other lawyers that find themselves in the same position. He realizes the seriousness of his misconduct and the consequences of his decision to resign from the bar. (Mike Frisch)
The petitioner testified that he was a sole-practitioner who took on more cases than he could adequately handle. He handled primarily criminal defense matters and, because he speaks Spanish, he took on a large number of cases representing Hispanics, many of which were pro bono. The petitioner realizes that he overloaded himself and was unable to manage his practice. He worked long hours and was affected physically by the stress of his practice. He now recognizes that he should have refused to take on so many cases, and that he should have gotten help. When questioned as to his reason for resigning, the petitioner stated:
"There was just so much. I had two grievances pending and I was stressed out and I realized I wasn't doing as well as I should be doing and I resigned." Tr. pp. 73-74.
The petitioner expressed remorse for his conduct and the disrepute that he brought on the profession. He fully accepts responsibility for his failures. He states that he has matured a great deal and has realized that he cannot help everybody. He is now living a more slow-paced life and is raising ducks, chickens and pheasants at his home on Lake Fort Gibson and is enjoying hobbies such as fishing. To ensure that he keeps his practice under control he plans to limit his law practice to part-time, if readmitted. He testified that he would like to practice immigration law and that he will not undertake major criminal cases. He will look to other attorneys and to the OBA for help when needed. He intends to do some pro bono work for elderly and disabled members of the Cherokee Nation. He would like to be of help to other lawyers that find themselves in the same position. He realizes the seriousness of his misconduct and the consequences of his decision to resign from the bar.
The Oklahoma Supreme Court concluded that an immediate interim suspension was appropriate on the following facts:
A Complaint and Application for Immediate Interim Suspension has been forwarded to this Court by Complainant, Oklahoma Bar Association, Office of General Counsel, alleging lawyer misconduct. Complainant asserts that Respondent's conduct poses an immediate threat of substantial and irreparable public harm requiring her immediate suspension from the practice of law. In response, this Court directed the parties to show cause as to whether Respondent...is personally incapable of practicing law as a result of habitual substance abuse.
In answer to this Court's show cause order Respondent asserts that she is "clean and sober and completely able to practice law at this time." However, recent and recurring instances of Respondent's arrest have resulted in multiple criminal felony and misdemeanor charges which require this Court's immediate action. Respondent's arrests have compromised her effective representation in several criminal and family law matters.
Respondent is hereby suspended from the practice of law effective immediately. This interim suspension shall remain in place pending an opinion from this Court which determines the appropriate final discipline to be imposed or a determination by this Court that Respondent is unable to practice law as a result of habitual substance abuse.
Mail Online had this report that the attorney fell in love with an incarcerated drug dealer:
An defence attorney is facing a trial of her own for allegedly helping a client escape from jail so she she could marry him.
Amy McTeer is said to have fallen in love with Roy Kuykendall and met up with him when he walked out of the correctional facility where he was serving nine years for dealing drugs.
So happy was she that she even took a photo of them walking away from the prison and posted it on Facebook, police say.
The Rhode Island Supreme Court imposed a suspension of nine months in a matter where the attorney had converted to his own use a portion of the proceeds of a personal injury settlement.
The attorney made a number of proper disbursements but withheld a portion for medical payments. Some of these bills were paid from other sources. The attorney still did not pay the client.
The client complained. Disciplinary Counsel issued a subpoena. The subpoena response proved that the attorney used entrusted funds for his own benefit.
In mitigation, the attorney had "family turmoil," medical issues and a flood. (Mike Frisch)
The South Carolina Supreme Court has reprimanded an attorney for ethical violations in two matters.
Respondent represented Client A's husband from July through October 2002. Client A's husband subsequently passed away.
Thereafter, respondent represented Client A in a criminal matter from March through July 2003. Respondent had a sexual relationship with Client A from late fall of 2003 through early spring 2004. He represented Client A again in a domestic action involving her children from June 2006 through February 2007.
Although respondent had no active cases with Client A while he was engaged in the sexual relationship, he did from time to time give her legal advice on a variety of matters. The Rules of Professional Conduct did not specifically identify a sexual relationship with a client as a conflict of interest until after respondent's sexual relationship with Client A ended; however, respondent acknowledges that his conduct was prohibited...
Respondent's wife is a lawyer. Respondent's wife represented Client B in a personal injury case and obtained a settlement on Client B's behalf.
Respondent had a personal relationship with Client B. Client B asked respondent to act as trustee of her funds. Client B had an independent attorney draft a trust agreement naming respondent as trustee.
Respondent's wife issued a series of checks payable to respondent on behalf of Client B totaling $17,600.00. Respondent did not consider his relationship with Client B to be attorney-client, but more like family; however, he acknowledges that, at a minimum, he had a fiduciary relationship with Client B and that he was bound by the Rules of Professional Conduct regarding the safekeeping of funds.
Respondent did not place Client B's funds in a trust account but, rather, negotiated the checks to cash and kept the cash in his office safe. Respondent represents he cashed the checks at Client B's request because she liked to come into the office and view the money.
Respondent used the funds to provide Client B with food, clothing, an apartment, and other personal necessities. Respondent did not maintain contemporaneous records of his disbursement of funds to and on behalf of Client B. Further, respondent admits that some of the payments were from his law firm operating account, rather than cash from the safe. Although respondent has demonstrated that he made payments to or on behalf of Client B equal to the amount of funds received on her behalf and that no funds were missing, he admits he did not comply with the requirements of Rule 417, SCACR.
In addition, respondent admits he loaned money to Client B. Although he charged no fees or interest or other consideration for the loan, he acknowledges it was improper for him to provide financial assistance to a client.
This was an agreed disposition. (Mike Frisch)
Tuesday, February 14, 2012
More from the bar discipline web page of the North Carolina State Bar:
[An attorney] of Charlotte was reprimanded by the Grievance Committee. [The attorney] did not supervise an independent contractor hired to design his law firm website. The contractor developed a site almost identical to another firm's website. [He] did not review the content of the website for several years.
An update on a North Carolina bar matter that we previously reported:
Gary Kivett of Spruce Pine made unwanted sexual advances to multiple clients. The DHC suspended Kivett for four years. After serving one year active suspension, he may apply for a stay of the balance upon his compliance with numerous conditions, including providing certifications from two psychiatrists or psychologists who specialize in treating sexual offenders that, based upon their independent comprehensive evaluations, in their professional opinions Kivett does not suffer from any condition creating a predisposition for inappropriate sexual behavior and does not suffer from any mental, psychological, or emotional condition that significantly impairs his professional judgment, performance, or competence.
Our post on the charges is linked here. (Mike Frisch)
A District of Columbia Hearing Committee praised the Assistant Bar Counsel's "candor and professionalism" during an ex parte file review to consider a consent disposition in a case involving misconduct in three immigration matters.
The case had been set for a four day hearing. The parties agreed to a continuance of the contested hearing to consider a possible consent disposition.
An agreement was proposed for a 120-day suspension with 30 days stayed, unsupervised probation with 12 CLE hours approved by Bar Counsel and restitution (roughly $10,000) to the three clients. The attorney will do the additional 30 days if probation fails.
The hearing committee approved this entirely reasonable resoution of the matter. Here's hoping the Court of Appeals does the same. I look forward to a day when consents will not be sufficiently routine to not require (as here) a 37-page hearing committee report. Having said that, the report here provides a cogent analysis in support of the consent disposition.
The recommendation may be found at this link by inserting the name Virginia Fling. (MIke Frisch)
Another day, another sharp disagreement from the Wisconsin Supreme Court.
The court majority (per Justice Zeigler) holds that a circuit judge does not have statutory authority to reduce the length of a probationary period:
We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation. Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to "extend probation for a stated period" or to "modify the terms and conditions" of probation. When subsection (3)(a) is read in context, it is clear that the authority to "modify the terms and conditions" of probation does not include the authority to reduce the length of probation. Accordingly, in this case, the circuit court erred as a matter of law when it relied upon § 973.09(3)(a) to reduce the length of Dowdy's probation. On that basis, we affirm the decision of the court of appeals.
We decline to decide today whether a circuit court has inherent authority to reduce the length of probation, and if so, what standard applies. Neither Dowdy's petition to the circuit court nor the circuit court's order was grounded in the court's alleged inherent authority. As a general rule, issues not raised in the circuit court will not be considered for the first time on appeal.
Chief Justice Abrahamson dissents:
The majority opinion errs in declaring that the defendant, Carl L. Dowdy, forfeited the right to obtain review in this court of the question whether a circuit court has inherent authority to reduce the length of probation. Under the well understood rule of forfeiture, the case law applying the rule, and rules of appellate practice, it is clear that the defendant did not forfeit the right to have this court decide the inherent authority issue. Neither party argued or briefed the forfeiture issue. The court has taken its own detour and its conclusion is contrary to accepted practice. Thus, this court should address whether circuit courts have inherent authority to reduce the length of probation.
I would hold that circuit courts possess inherent authority to reduce the length of probation.
Justice Bradley wrote a separate dissent. Justice Prosser did not participate. (MIke Frisch)
The Illinois Review Board has recommended a censure of an attorney for violating the will drafting rule.
The board's summary of the matter:
This matter arises from a one-count complaint alleging that Respondent engaged in misconduct as a result of his actions in drafting wills and a trust agreement for clients John and Stephania Anderson, in which Respondent and/or Respondent’s wife were named as beneficiaries. The Hearing Board found that the Administrator failed to meet his burden of proof that Respondent engaged in misconduct and recommended that the complaint against Respondent be dismissed. In so concluding, the Hearing Board applied the 2010 version of Rule 1.8(c) of the Illinois Rules of Professional Conduct to Respondent’s conduct and found that because Respondent had a close, familial relationship with the clients and had detached advice from another lawyer, there was no violation of the rules. In addition, the Hearing Board found that Respondent acted in the best interest of his client.
On review, the Administrator asked this Board to find that the Hearing Board erred in its conclusions finding no misconduct. Specifically, the Administrator contended that Respondent breached his fiduciary duty and violated Rules 1.8(c), 1.7(b) and 8.4(a)(5) of the 1990 Illinois Rules of Professional Conduct, the rules in effect at the time of the Respondent’s representation of the Andersons. The Administrator asked the Review Board to recommend that Respondent be censured. The Respondent asked the Review Board to approve the Hearing Board findings and recommendation of dismissal.
The Review Board found that the Hearing Board should have applied the 1990 Rules and that the Respondent clearly violated Rule 1.8(c) with respect to the drafting of one trust agreement in 2006 in which the Respondent’s wife was named a beneficiary. With respect to the other alleged violations, the Review Board concluded that the Hearing Board’s findings were not against the manifest weight of the evidence. In light of the substantial evidence in mitigation, including the evidence that Respondent had a close relationship with the client and was abiding by the client’s wishes, the Review Board recommended that Respondent be censured.
The board found mitigating factors:
Respondent had a close relationship with Mrs. Anderson and he acted to insure that her wishes were met with respect to her bequests. Respondent has otherwise engaged in the practice of law without incident. He also offered evidence that he had attended an all day seminar on the Rules prior to the hearing and has stated his intent to comply with the Rules in the future. Respondent testified that he now carries with him a copy of the new rules. Most importantly, Respondent was forthcoming with his clients, with the Hearing Board and at oral argument. He took responsibility for his actions which were unfortunately occasioned by his ignorance of a rule he should have known.
The clients had moved in next door to the attorney's family when he was seven years old. His father had also been their attorney. (Mike Frisch)
Monday, February 13, 2012
The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of grand larceny.
Lawshucks had this earlier story about the attorney:
This is turning into a bit of perp-walk week, following yesterday’s arrest of a Goldman Sachs/Sidley lawyer who was soliciting a minor over the internet.
Then we got word of four friends who were arrested in New York for a “brazen” scam – they opened bank accounts, withdrew the money, then put in claims that the money had been lost or stolen. All told, they allegedly stole $422,000 on $700,000 in claims.
According to the Daily News, the “beaut of a scam” hinged on a “little-known federal regulation.”
Hmm… where does one learn about such things? BigLaw perhaps? Indeed!
One of the people charged was a BigLaw veteran, who may have actually figured this scam out on the job.
Three of the four arrested, Eric Manganelli, Lam Dang, and John Tluczek, went to NYU together. The fourth was Tluczek’s wife Marzena. Dang and the two Tluczeks are “in finance.”
The other, and the hero of the story from our perspective, is Manganelli – the lawyer.
Manganelli stuck around the Village for law school, graduating in 1998. He did a turn at the Queens DA and a small firm before joining Morgan Lewis in May 2000. He stayed there until March 2003.
The criminal charges were reported by the New York Times. (Mike Frisch)
From the web page of the Rhode Island Supreme Court:
Before the Supreme Court was a request from the Unauthorized Practice of Law Committee (committee) for guidance on whether nonlawyer union representatives engage in the unauthorized practice of law in violation of G.L. 1956 § 11-27-2 when representing unions at public labor arbitration hearings.
After receiving a complaint filed by the Town of Little Compton (the town) against the Little Compton Firefighters Local 3957 (the union), the committee conducted an investigational hearing on the matter. In its complaint, the town contended that the union or its representative had engaged in the unauthorized practice of law in violation of § 11-27-2 when the union allowed its nonlawyer business agent to represent it at a labor arbitration hearing. The committee’s report to the Court ultimately concluded that the union representative’s actions on behalf of the union constituted a “technical violation” of the statute governing the unauthorized practice of law. Mindful that this type of lay representation of unions in labor arbitrations is a common practice in Rhode Island, the committee petitioned the Court for guidance on how to proceed in the matter. After reviewing the committee record, the parties’ written submissions and oral arguments, and the many amicus briefs filed, the Supreme Court declined to limit this particular practice at this point in time.
The court's opinion is linked here.
The court notes that the lay representation is "commonplace" in Rhode Island, although that fact is not dispositive. Rather, the court concludes that public policy favors the continuation of the practice. The arbitrations are more about the "law of the shop" than strict legal principles. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the grant of summary judgment to a law firm that sued a third party who had agreed to pay the fees of the firm's client:
Pursuant to the written guarantee between the parties, defendant guaranteed payment to plaintiff-firm in accordance with the retainer agreement between plaintiff and defendant's former girlfriend. Defendant further guaranteed to make payments to plaintiff for services rendered according to a schedule specifying three monthly payments of $25,000 and, thereafter, "monthly payments of no less than $15,000 . . . until such time as all fees incurred by [defendant's former girlfriend] pursuant to the Retainer Agreement have been paid." Defendant made payments to plaintiff in the amount of $135,000, and then stopped making payments.
We reject defendant's contention that he was not required to make additional payments under the written guarantee because plaintiff failed to advise him of expenditures of time over and above the time covered by the retainer and provide him with periodic statements of account. Under the plain and unambiguous terms of the retainer agreement, plaintiff was required to advise and mail periodic statements of account to defendant's former girlfriend, not defendant. Accordingly, the court properly denied defendant's cross motion for summary judgment dismissing the complaint Given the unambiguous terms of the retainer agreement and guarantee, there was no basis for considering parol evidence. (citations mitted)
Plaintiff's allegations that, among other things, defendant owes it "the outstanding balance" on his former girlfriend's account were sufficient to state a cause of action for breach ofthe guarantee...