March 2, 2012
Disbarred But Immediately Eligible To Seek Reinstatement
The Pennsylvania Supreme Court has disbarred an attorney for ethical misconduct in representing clients and (more significantly as to sanction) his sale of cocaine and heroin in undercover drug buys.
The Disciplinary Board found a casual connection between the attorney's drug addiction and the misconduct. He also has made strides in his recovery. Because he has not practiced since 2000, the Board recommended that he be allowed to petition for reinstatement after January 1, 2012. the court adopted that recommendation and made the disbarment effective as of January 1, 2007. (Mike Frisch)
Georgetown Law Expresses Support For Student Attacked By Limbaugh
A statement has been issued signed by faculty members, administrators and students at Georgetown Law in support of student Sandra Fluke:
Ms. Fluke had the courage to publicly defend and advocate for her beliefs about an important issue of widespread concern. She has done so with passion and intelligence. And she has been rewarded with the basest sort of name-calling and vilification, words that aim only to belittle and intimidate. As scholars and teachers who aim to train public-spirited lawyers, no matter what their politics, we abhor these attacks on Ms. Fluke and applaud her strength and grace in the face of them.
A justice of the Massachusetts Supreme Judicial Court has ordered a suspension of two months of an attorney who accepted appointments to represents indigent criminal defendants on appeal while not covered by liability insurance. Attorneys who accept such appointments must have insurance with minimum coverage amounts of $100,000/$300,000 and a maximum deductible of $10,000.
The attorney was uninsured from August 2009 through December 2010. He also falsely certified to the Board of Bar Overseers that he had the required coverage. (Mike Frisch)
No Stay, No Dismissal In Judicial Conduct Matter
The New York Appellate Division denied relief to a judge who sought to delay or dismiss judicial misconduct proceedings:
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered September 13, 2011, denying the petition seeking, inter alia, to stay the disciplinary proceedings brought against petitioner by respondent pending the resolution of the criminal prosecution of a witness to the disciplinary proceedings, and dismissing the proceeding brought pursuant to CPLR article 78, and order, same court and Justice, entered on or about September 22, 2011, which, upon renewal, adhered to the prior determination, unanimously affirmed, without costs.
Denial of the petition and dismissal of the proceeding was warranted because petitioner failed to exhaust the administrative remedy available to him pursuant to Judiciary Law § 44(7) (see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 195 ). Petitioner has not demonstrated that doing so would be futile or that irreparable harm would occur absent judicial intervention (see Bankers Trust Corp. v New York City Dept. of Fin., 1 NY3d 315, 322 ; Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 88 AD3d 72, 81 ). The alleged "possibility of reputational harm" does not constitute irreparable injury warranting the relief sought by petitioner (Martinez 2001 v New York City Campaign Fin. Bd., 36 AD3d 544, 551 ; see Mabry v Neighborhood Defender Serv., Inc., 88 AD3d 505, 506 ).
Details about the charges are available at this link on the web page of the Commission on Judicial Conduct. (Mike Frisch)
Misappropriations Draw License Revocation
The Iowa Supreme Court has revoked the license of an attorney who misappropriated settlement proceeds in two personal injury matters.
The court made clear its view of the violations:
We do not tolerate this kind of misconduct from Iowa lawyers...In light of the misappropriations of client funds for personal use, we do not address the numerous other disciplinary violations against [the attorney]. To do so is simply unnecessary. Based on the proven misappropriations of client funds for his personal use, we revoke the license of [the attorney] to practice law in this state.
The attorney defaulted on the bar charges. (Mike Frisch)
Improper Conduct Results In New Trial
The New York Appellate Division for the Second Judicial Department has reversed a defendant's favorable verdict in a medical malpractice case.
The court granted relief to the plaintiff in light of the conduct of defense counsel:
A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants. The defendants' counsel repeatedly denigrated the medical background of the injured plaintiff's treating physician. Counsel also made inflammatory remarks, including commenting during summation that the plaintiff's treating physician and the plaintiff were "working the system." Moreover, counsel remarked that the injured plaintiff's treating physician testified "at an enormous amount of Workers [Compensation] proceedings" and was the "go-to" doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the credibility of the defendants' expert witness by thanking "God there are people like [him] who are the stop gap."
Additionally, during cross-examination of the plaintiffs' expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a "parking lot," even though the court had sustained the plaintiffs' objection to the first use of this reference. In addition, counsel persistently questioned the plaintiffs' expert about an investigation by the Department of Health of "anesthetic mishaps" in the anesthesiology department at Long Island Jewish Medical Center, despite the expert's testimony that the investigation did not involve his practice, and the defendants' lack of any evidence to the contrary. Counsel also commented that the plaintiffs' expert was "sensitive" about this topic, and stated repeatedly that the plaintiffs' expert was "out of control." Further, in questioning the plaintiffs' expert about a malpractice case that had been brought against him, counsel remarked that the expert had been "afraid to take the witness stand in that case."
Moreover, counsel for the defendants cross-examined the plaintiffs' economic expert on collateral issues, including, among other matters, the state of the local Suffolk County economy, the foreclosure rate in that county, and the twelve-year period during which judges in New York State had continued to work without receiving a raise.
Understanding (And Taking Advantage Of) The 1%
The March 2012 California Bar Journal has a summary of a bar discipline case:
[An attorney] was suspended for three years, stayed, placed on three years of probation with a two-year actual suspension and until he makes restitution and proves his rehabilitation, and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect July 8, 2011.
A State Bar Court review panel found [he] committed six acts of misconduct in three matters, beginning three years after his admission to the bar in 2000. He disobeyed two court orders, charged an unconscionable fee, committed an act of moral turpitude, performed incompetently and failed to communicate with clients. Both the hearing judge and the review panel found it significant that [he] blamed others for his misconduct and was dishonest in trial testimony.
[The attorney] sought review, claiming the bar failed to prove the charges against him.
In the first matter, he represented the plaintiff in a civil case, but he was sanctioned for not attending a hearing. He neither paid the sanctions nor filed a declaration that he had done so. He missed a second hearing but paid the sanctions later. The review panel found that he failed to obey court orders.
Despite only three years of practice, [the attorney] was hired to handle a dissolution in which the community estate was worth between $40-60 million. His client, however, was an unemployed high school graduate with two children; they were living in a hotel at the time. Although the client wanted to ascertain the estate’s assets, she said [his] “biggest concern was getting paid attorneys fees.”
Although the client lived in San Diego, [the attorney] filed the case in Los Angeles, believing L.A. judges understood wealthy clients. The client denied that she asked him to file the case there, despite his assertions. He agreed to dismiss the petition in Los Angeles in exchange for $25,000 in monthly spousal support and $35,000 advance attorney fees. But when [he] responded to the husband’s dissolution petition in San Diego, he asked for monthly spousal support of $61,150 and fees and costs totaling $37,275. He included a declaration signed by his client attesting to the fees owed, although he had never sent her any billing statements. The client fired him and her new attorney immediately obtained a temporary support order for $75,000 per month.
[He] then billed and sued the client for additional fees that totaled nearly $93,000. A family law expert testified that his legal services were worth about $10,000 and the judge found found the evidence was “just over the top,” that it was“almost shameful when you look at what happened here, the price that was charged, and then to think that someone would come in and ask for almost $93,000 for this level of services is just unconscionable.” The judge said Nownejad was entitled to $10,000 and awarded his client $15,000 in restitution, which he hasn’t paid.
The review panel found that [he] charged an unconscionable fee and committed an act of moral turpitude by taking advantage of his client and trying to collect a windfall from her.
The review judges found that [he] essentially abandoned two other clients by failing to appear at scheduled hearings, respond to discovery requests, or take any action to set aside the dismissal. They also found that he intentionally allowed the case to be dismissed and did not notify his clients for almost one year. He also did not respond to his client’s many efforts to communicate with him.
There was no mitigation.
March 1, 2012
"A Legitimate Educational Or Scientific Pursuit"
More from the California Bar Journal:
[An attorney] was disbarred Oct. 28, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
[The attoeney] was convicted in 2010 of possession of child pornography and possession of an assault weapon.
Following a search of his residence, law enforcement found child pornography stored on six separate pieces of media, including [his] desktop computer, two laptop computers, two zip disks, and a thumb drive. He had 450 images of prepubescent children, many engaged in explicit sexual acts, stored on various devices. [He] also used his check card intermittently to buy access to child porn websites.
According to the stipulation [he] said “he had an honest but mistaken belief that viewing child pornography constituted a legitimate educational or scientific pursuit, insofar as he was ‘psychologically and emotionally exploring and attempting to understand human malice and perverse acts of human cruelty, including but not limited to atrocities committed in war time, sometimes in an effort to understand and get to the root of his belief that he was possibly a victim of childhood abuse in order to overcome the effects of such abuse and experiences in Vietnam.’”
He was privately reproved in 1997. In mitigation, he presented extensive evidence of a variety of traumatic experiences.
Attorney's Terror Campaign Leads To Disbarment
A recent disbarment is summarized in the March 2012 California Bar Journal:
[An attorney] was summarily disbarred Oct. 20, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
[The attorney] was convicted in 2005 of first degree burglary, stalking and solicitation to commit kidnapping (all felonies), and misdemeanor battery and cruelty to a child by endangering health.
The Court of Appeal reversed the conviction in 2007 but was itself reversed by the Supreme Court in 2010. The appellate court then affirmed the conviction but [the attorney] went to the Supreme Court, which denied her petition for review. Her petition for writ of habeas corpus in federal district court is pending.
The State Bar Court said her conviction is final, despite the pending petition, and recommended summary disbarment. It found that first degree burglary is a felony involving moral turpitude and thus meets the requirement for summary disbarment.
The decision reversing the criminal conviction is linked here. The basis for the reversal was the failure of the trial judge to recuse himself in light of allegations that the attorney had stalked a judicial colleague and friend.
The conviction involved the attorney's teenage daughter, who was removed from her care as a result of allegations of abuse. The attorney tried to disrupt the foster care placement and terrorize the foster parents "in a misguided attempt to monitor and reunite with her daughter." The attorney solicited a client to kidnap her daughter. (Mike Frisch)
The Wisconsin Supreme Court imposed reciprocal discipline based on sanctions ordered in Minnesota. The sanctions consist of a public censure and a one-year suspension.
The Minnesota suspension was imposed in 2000.
The court here declined to make the suspension nunc pro tunc to 2000:
We reject Attorney Eichhorn-Hicks' argument. First, whether or not he voluntarily chose not to practice law in Wisconsin during the period of his Minnesota suspension, Attorney Eichhorn-Hicks was not precluded from practicing law in this state due to any disciplinary suspension. Thus, if we were now to make his Wisconsin suspension retroactive to 2000, he would effectively have avoided any discipline in Wisconsin for his professional misconduct. Second, the fact that Attorney Eichhorn-Hicks' Wisconsin license was not suspended simultaneously with his Minnesota license results solely from Attorney Eichhorn-Hicks' own failure to notify this state's regulatory authorities of his suspension. (citations omitted) Although Attorney Eichhorn-Hicks asserts that he was unaware of his obligation to do so, his failure to ascertain his legal and ethical obligations to this state is no excuse.
Dismissal With Warning In Failure To Report Partner's Thefts
After overturning a finding of no misconduct against five partners charged with failure to report the thefts of colleague, the Maine Supreme Judicial Court ordered that the matter be dismissed with a warning.
The charges involved partners at the Verrill Dana law firm.
From the court's opinion finding the misconduct:
We recognize that these six attorneys, comprising Verrill Dana's executive committee, were caught completely "off guard" by [the partner's] conduct. We also recognize that they dealt with [him] with compassion, and there is no suggestion of bad faith in their failure to refer his conduct to Bar Counsel or to individuals in the firm who were more capable of assessing the need for action, such as the firm's own counsel. However, we cannot ignore that, when faced with the significant malfeasance of a self-destructing partner, none of these attorneys even recognized that the Maine Code of Professional Responsibility required them to contemplate reporting that partner's conduct and subsequent breakdown. Notwithstanding the single justice's factual findings, when a firm's practices and policies do not require the firm's leadership to at least consider whether it has an ethical obligation to report a colleague in the circumstances presented by this case, we are compelled to find, as a matter of law, that the firm failed to have in effect "measures giving reasonable assurance that all lawyers in the firm conform to the Code of Professional Responsibility."
Suspension For False Pay Claims, Unauthorized Use Of Military LexisNexus
From the web page of the Ohio Supreme Court:
In a 7-0 per curiam decision announced today, the Supreme Court of Ohio suspended the license of [a] Columbus attorney...for one year for submitting false pay forms for hours he had not worked while serving as an officer in the U.S. Air Force Reserve Judge Advocate General Corps, and for making personal use of his military LexisNexis account in connection with his private law practice.
The court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney], who failed to submit an answer to the complaint filed against him or to appear for scheduled depositions or a hearing before the board, had violated the state disciplinary rules that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, conduct that reflects adversely on an attorney’s fitness to practice law, and conduct that is prejudicial to the administration of justice.
The attorney was a reserve Air Force JAG.
The court's opinion is linked here. (Mike Frisch)
February 29, 2012
Legal Chutzpah In Florida
SunEthics (the best blog for Florida ethics information, in my view) has an interesting recent post:
Lawyer and his law firm represented 77 plaintiffs in cases against a cruise line ("RCL"). RCL moved to disqualify Lawyer and the firm based on allegations that Lawyer paid an RCL employee "to provide insider information on the cruise line's claims files" so that Lawyer could use the information in negotiations. At the hearing on the disqualification motion Lawyer and the firm stipulated to withdrawal from all 77 cases. The trial court's order allowed the withdrawal and permitted the filing of charging liens for fees and costs, but specified that the merits of any such liens would be adjudicated at a future hearing.
Subsequently it came to light that Lawyer had entered into a "secret agreement with successor counsel" providing that Lawyer would be paid a portion of the funds recovered by successor counsel in the RCL cases. The court held a show cause hearing and thereafter entered an order of criminal contempt, "finding the agreement with [successor counsel] was 'a secret, self-serving and illegal arrangement intended as a means of evading this Court’s order concerning [Lawyer]’s claim to fees and costs from files which he abandoned.'” The court referred Lawyer to the Bar, and Lawyer was disbarred by order of the Florida Supreme Court.
Despite these events, Lawyer filed a motion with the trial court seeking disbursement of costs alleged to have been owed to him in cases that had not yet been settled at the time of the contempt hearing. The court denied that motion, and Lawyer appealed.
The Third DCA affirmed. The motion was legally insufficient, having failed to identify which of the cases on which Lawyer was seeking costs or the amount and description of the costs. Moreover, Lawyer's motion was barred by the trial court's earlier contempt order. The appeals court described Lawyer's conduct in even filing the motion as "a textbook example of legal chutzpah." In a footnote, the court observed that the classic definition of "chutzpah" was "that quality enshrined in a man, who having killed his mother and father, throws himself upon the mercy of the court because he is an orphan." (Citations omitted.) Wingate v. Celebrity Cruises, LTD, __ So.3d ___ (Fla. 3d DCA, No. 3D11-400, 2/8/2012).
Tears Prevent Disbarment
A single justice of the Massachusetts Supreme Judicial Court declined to follow a disbarment recommendation and instead imposed an indefinite suspension effective on the date of the attorney's 2007 temporary suspension.
The attorney was convicted of violating a protective order, harassment and intimidation of a witness. He also violated terms of probation.
The justice on sanction:
There is no reason to depart from the presumptive sanction in this case. However, I had an opportunity to observe the respondent for about forty-five minutes, including about thirty minutes for his own oral argument, and I could not help but think that he has unresolved emotional issues that in all likelihood contributed to his difficulties. He was reduced to tears twice during the hearing before me. Although he did not present any evidence in mitigation to the hearing panel, I honestly believe it exists and I am not inclined to order disbarment for this reason. I also note that, although not determinative, the misconduct in this case did not occur in the course of the practice of law.
The attorney must establish that he has "addressed his emotional issues" if he applies for reinstatement.
There may be no crying in baseball, but I guess it sometimes can work in court. (Mike Frisch)
A Question Of Timing
The Wyoming Supreme Court imposed a public censure of an attorney who filed untimely post-trial motions in a criminal case.
The attorney's client was convicted of attempted first degree murder and aggravated assault. The attorney filed motions for judgment of acquittal and for a new trial. He believed that the motions were timely because of the date of the court's written judgment and sentence. In fact, the time had begun to run from the date the verdict was returned, nineteen days earlier.
The trial court denied the motions as untimely.
The Wyoming Supreme Court found ineffective assistance and ordered a new trial. (Mike Frisch)
Bar May Investigate, Prosecute Matters Not Alleged In Initial Client Complaint
The Minnesota Supreme Court imposed an indefinite suspension with no right to apply for reinstatement for 90 days in a matter involving the mishandling of a client's case and failure to cooperate with the bar proceedings. The court noted that the attorney had similarly mishandled 11 other cases for 8 other clients from 2003 to late 2009.
The attorney contended that the investigation into his practice beyond the four corners of the initial complaint was improper.
The court disagreed:
The Director's investigation was commenced pursuant to the complaint filed by a former client, not upon the Director's sole initiative. Based on the results of the investigation, which showed [the attorney] had failed to communicate with his client and mishandled his appeals, the Director had a reasonable belief that [he] may have committed similar misconduct in other appeals. The record supports the conclusion that the Director's additional investigation was reasonably related to the complaint, and was appropriate. We therefore conclude that the Director was within his authority to investigate all of the matters alleged in the petition, including those not mentioned in the client complaint that initiated the Director's investigation.
An Explanation, Not An Excuse
The South Carolina Supreme Court has disbarred an attorney for misconduct that included the misappropriation of a substantial amount of entrusted client funds.
The court commented on the attorney's pro se oral argument before it:
The current allegations, which Respondent has admitted, include misconduct that has resulted in significant harm to his clients. Respondent admitted at oral argument he stole client funds simply to support a more lavish lifestyle. Moreover, Respondent has not raised any exceptions to the Panel's report recommending that he be disbarred. Accordingly, we find disbarment is an appropriate sanction.
February 28, 2012
E-Mail Evidence Cited In Allegations Of Misconduct
The Illinois Administrator has filed an amended complaint in a high-profile ethics case brought against a former arbitrator for the Illinois Workers Compensation Commission.
The amended complaint alleges that the arbitrator engaged in improper attempts to expedite payment in her own workers compensation case, made improper statements in another case, improperly attempted to keep a public matter secret and engaged in improper ex parte contacts with counsel.
As we have mentioned before, Illinois pleads detail in its complaints far beyond the "notice pleadings" you see in many if not most jurisdictions. The value of such detail from an educational standpoint is readily apparent here. Many of the factual contentions reference the accused's e-mails, with the e-mails quoted throughout.
Illinois also is one of the very few jurisdictions that posts charging documents on its web page.
For my money, the best web page for information about disciplinary charges is North Carolina. The web page has not just the charges but all of the pleadings, as well as the date, place and time of the hearing and the identities of counsel and the panel that decides the case. This is information that you could not get from most disciplinary systems with a crowbar.
Here, the allegations do not paint a pretty picture of a judicial officer interacting ex parte with counsel:
Respondent, Nadenbush, and Barringer also exchanged ex parte emails making disparaging remarks about Nadenbush’s and Barringer’s opposing counsel in case pending before Respondent, including comments such as calling the opposing counsel an "idiot" (Barringer to Respondent, August 2, 2010); stating that Nadenbush’s opposing counsel was "annoying and a bad lawyer" (Respondent to Nadenbush, January 29, 2010); stating that opposing counsel’s "f’n exhibits – I can’t figure out where the god damn records are and I am pissed!" (Respondent to Nadenbush, March 10, 2010); calling opposing counsel a "dumb ass" (Respondent to Barringer, September 1, 2010); calling opposing counsel an "ass" (Nadebush to Respondent, May 27, 2009).
The ABA Journal had this earlier story. (Mike Frisch)
Public Not Private
The New York Appellate Division for the First Judicial Department rejected a plea for private discipline and imposed a public censure as reciprocal discipline based on a sanction imposed by the United States Court of Appeals for the Second Circuit.
The misconduct involved the mishandling of appeals in a number of immigration matters:
Respondent conceded that between December 2005 and August 2007, she defaulted on 28 of 41 petitions for review she filed in the Second Circuit and four petitions filed in the Third Circuit for failing to comply with scheduling orders. However, respondent argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were part of her strategy to gain time to pursue other, more advantageous forms of relief. Respondent further testified that in her experience, the court liberally reopened cases that were dismissed for noncompliance with scheduling orders and it was not until she received the referral order from the CAG that she realized the court was critical of repeated failure to comply with those orders. Although not mentioned in the original referral order, respondent addressed the fact that she had filed at least 19 of the defaulted petitions prior to being admitted in the Second Circuit on March 3, 2006. Respondent admitted that she did not research whether she needed to be admitted for purposes of filing petitions for review, and testified that she relied on information conveyed by an associate in her firm, who had been advised by a court employee that, pursuant to the court rules, an attorney litigating before the court need not be admitted to the bar of the Second Circuit unless she intended to orally argue before the court.
There was mitigation:
In support of mitigation, the [Second Circuit"s Committee on Admissions and Grievances] noted that respondent expressed a genuine commitment to her clients' best interests, including often working for clients who did not pay their fees and for non-responsive clients, evidencing the absence of a dishonest or selfish motive; that she testified about certain medical issues that arose during the time of the first admonition; that she was forthcoming and cooperative with the CAG's investigation; that she expressed credible remorse for her misconduct; that she had taken good faith steps to prevent any recurrences by significantly limiting her caseload and committing to a diligent monitoring of court deadlines; that she appears to be a committed practitioner who provided quality work notwithstanding challenging situations; and that she appears to be well respected in the legal immigration community, as evidenced by her having worked for the Lawyers Community for Human Rights and her having acted as the chairperson of the Federal Bar Association's immigration law committee.
The court the mitigation insufficient to warrant non-public discipline. (Mike Frisch)
Holding Out In Montana
The Tennessee Supreme Court suspended an attorney for six months, with credit for 21 days from the termination of his disability inactive status.
At a time when he had no active license, the attorney practiced law in Montana "by signing settlement documents, by using letterhead stating that he was an attorney with addresses in Montana, and by using a bank account in the name of his solo practice."
Complaints were filed by authorities in Washington State and Montana. The attorney is not licensed in either of those jurisdictions. (Mike Frisch)