Friday, May 31, 2013
The Arkansas Judicial Ethics Advisory Committee has issued an opinion disapproving of a proposed filming in Hot Springs District Court:
...we are here presented with a production company that wishes to make a series of pograms about a particular court, syndicate those programs, perhaps nation-wide, and make a profit from "reality television."
The committee signalled disapproval where the project was motivated by profits rather than a desire to educate. Further, it might be undignified.
Possible titles: "America's Busiest District Court" and "Located in America's Most Dangerous City." (Mike Frisch)
A recent judicial ethics opinion from South Carolina deals with the following facts:
The judge is currently a part-time Municipal Court Judge and a practicing attorney. The judge has been asked to represent, at post-seizure hearing in the Magistrate’s Court, the owners of video gaming machines which were seized by City police. The judge inquires into the propriety of accepting such representation.
A continuing part-time judge is not required to comply with Canon 4G
that prohibits a judge from practicing law. Rule 501, Application
C(1)(b), SCACR. A part-time judge may practice law, subject to
several limitations under the Code of Judicial Conduct. “A continuing
part-time judge shall not practice law in the court on which the judge
serves or in any court subject to the appellate jurisdiction of the
court on which the judge serves, and shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other
proceeding related thereto.” Rule 501, Application C(2), SCACR.
Canon 2 mandates that judges avoid the appearance of impropriety in
their activities and conduct themselves “in a manner that promotes
public confidence in the integrity and impartiality of the judiciary.”
Rule 501, SCACR.
Here, the Magistrate’s Court is not subject to the appellate jurisdiction of the City court and the judge would not be acting as a lawyer in proceeding in which he had served as judge. However, as we noted in Opinion 14-2002, it would be improper for a part-time municipal judge to act as an attorney in representing a client in a matter investigated and brought by the municipality in which he serves. This would not promote public confidence in the integrity and impartiality of the judiciary. Here, the City police investigated and seized the video gaming machines. Thus, even though the matter is now pending before the Magistrate’s Court, it would be improper for the municipal judge to represent the owners of those machines. The involvement of the City police could intrude on the “public confidence in the integrity and impartiality of the judiciary” and therefore the judge’s representation of the owners would violate Canon 2.
Thursday, May 30, 2013
The web page of the Illinois Attorney Registration & Disciplinary Commission reports that attorney Reema Bajaj was served with disciplinary charges on May 20, 2013.
The link to the complaint did not work but we will check back and update when the charges are available.
The attorney was the subject of extensive publicity (link to Above the Law stories here) in the wake of prostitution charges and a resulting criminal conviction. (Mike Frisch)
The Florida Supreme Court revoked the admission of an attorney for lack of candor in his application for bar admission.
After he passed the bar exam, questions were raised in the character and fitness process. The undisclosed information primarily involved problems the attorney had encountered while serving as a police officer.
The court's opinion explains the obligation to update and supplement answers.
It also underscores the crucial importance of absolute candor in the admission process, as the information that was not disclosed here would likely not have prevented the applicant from becoming a member of the Florida Bar. (Mike Frisch)
An attorney was disbarred by the New York Appellate Division for the Third Judicial Department as a result of her guilty plea to felony driving while intoxicated.
As we have previously explained, a New York attorney convicted of a crime that is a felony under New York law is subject to automatic disbarment.
Thus, an attorney convicted of federal immigration fraud has a shot at a lesser sanction because there is no such crime under state law. However, a single DWI results in the ultimate sanction.
In many if not most jurisdictions, a DWI conviction does not lead to disbarment. Often, probation with conditions of monitored sobriety are imposed. (Mike Frisch)
The Michigan Attorney Discipline Board has affirmed a hearing panel order of a 30 day suspension and restitution, rejecting the attorney's claim that the panel erred in refusing to vacate his default for failure to answer the formal complaint.
The attorney's excuse for the default was that he is a sole practictioner and had other pressing matters that require his attention. He claimed that the disciplinary matter was "overlooked" and that "the fact that the matter was set for hearing which would suggest that an answer was not needed."
It was needed under Michigan rules.
The board found that the defaulted attorney failed to demonstrate that the panel abused its discretion and was "both perplexed and concerned" over the attorney's inability to read and follow its rules. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice case on statute of limitations grounds.
The court interpreted the "continuous representation" rule:
Here, contrary to the plaintiff's sole contention on the issue of timeliness, the Supreme Court did not err in concluding that the relationship necessary to invoke the continuous representation rule ceased to exist by November 5, 2007, when the plaintiff surreptitiously removed his file from the defendants' office. By so removing the file, the plaintiff evinced his lack of trust and confidence in the parties' relationship, and his intention to discharge the defendants as his attorneys. Accordingly, because, contrary to the plaintiff's contention, the relationship necessary to invoke the continuous representation doctrine terminated more than three years prior to the commencement of this action, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged legal malpractice against the defendants... (citations omitted)
In a case dealing with a law firm's entitlement to fees in representing a divorce client, the New York Appellate Division for the First Judicial Department remanded in light of the non-compliance of the firm with with written retainer requirements:
Following arbitration, the law office commenced this action seeking unpaid legal fees in the amount of $83,775.69 and a trial was held on the claim. [Client] Blisko asserted that the retainer did not comply with 22 NYCRR 1400.3 because it did not state the "hourly rate of each person whose time" was charged to her, but rather only stated the hourly rate of [attorney] Eisenberger and made no mention of any other attorney working on the case. Blisko also contended that the retainer expressly stated that the law office's representation did not include being trial counsel. The trial court rejected Blisko's arguments and ordered her to pay $83,775.69 to the law office, in addition to the substantial amount she already had paid.
We modify because the law office should be denied any legal fees arising from representation of Blisko after the grounds trial commenced. The plain language of the retainer states that the law office's representation of Blisko includes work leading "up to" a trial, "but not including an actual trial." Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer.
The law office contends that, even if the retainer terminated when the trial began, it may still collect unpaid fees from Blisko because it substantially complied with the requirements of 22 NYCR 1400.3. The substantial compliance argument has no relevance to this issue because there was no trial retainer at all. If the law office wanted to be paid for representing Blisko at trial, it needed to have the client sign a new retainer. Moreover, there is no indication that the law office explained the limited nature of the retainer to the client, who then agreed to expand its scope to include the actual trial.
Although the law office cannot receive legal fees for any services completed after trial commenced, it may receive any outstanding unpaid fees for work completed prior to commencement of the actual trial. The law office substantially complied with the requirements of 22 NYCRR 1400.3 by giving the client the required statement of client rights and responsibilities and by listing the fee of the primary attorney. Blisko's testimony indicates that she was aware that more than one attorney was working on her case, and that she received bills reflecting the work of multiple attorneys.
Finally, as a general principle, the law office "need not return fees [it] properly earned." Although the retainer does not fully comply with 22 NYCRR 1400.3, the law office did complete work that was within the scope of the pretrial retainer, and therefore it is not required to return fees already paid to it for work completed before the trial. When a client is seeking the return of funds already paid to the attorney, the attorney does not need to show substantial compliance with 22 NYCRR 1400.3, but only that the fees paid were properly earned.
(citations omitted throughout)
Wednesday, May 29, 2013
The Kentucky Supreme Court has permanently disbarred former Bath County Attorney Donald "Champ" Maze as a result of his conviction on federal charges of lying under oath to a grand jury.
The grand jury was looking into issues relating to his 2006 campaign for reelection to the post.
Justice Scott would impose a five-year suspension, giving Maze an opportunity to demonstrate rehabilitation: "Hope is an eternal beacon." (mike Frisch)
The Pennsylvania Court of Judicial Conduct has suspended with pay a Philadelphia traffic court who is the subject of a felony indictment.
The judge had been suspended without pay by the Pennsylvania Supreme Court. Here, the court affirmed that it had the authority to determine whether suspension (with or without pay) should be imposed.
The court chided the Judicial Conduct Board for the "grossly inaccurate representation" that the judge was indicted in 68 counts. The number is actually just three.
A concurring opinion provides some history of the court. The concurring opinion notes that the error in the board's petition was promptly corrected.
In an unrelated matter of a judge who allegedly dismissed her own parking tickets, the court suspended without pay and directed return of payments made after February 11, 2013. (Mike Frisch)
An attorney who was unable to find work as a lawyer went to work for Net Access doing legal research.
Despite his lack of litigation experience, he undertook a complex litigation in the New York courts and tried the case, securing a $3.5 million judgment on behalf of his clients. Thereafter, the good news turned bad.
The New Jersey Supreme Court agreed with the majority of the Disciplinary Review Board that the attorney had knowingly misappropriated funds from the judgment.
The attorney was disbarred for taking $1.2 million at a time when his fee was in dispute.
One board member would have imposed a three-month suspension; two favored a suspension of one year. (Mike Frisch)
Tuesday, May 28, 2013
The Connecticut Supreme Court affirmed the grant of summary judgment to two attorneys sued under a variety of theories including violation of the state's unfair trade practices law.
The basis was the failure of the plaintiff to "identify any evidence of ascertainable loss."
One of the defendants had been employed by attorney Meo as an associate. Meo was the sole proprietor of the law firm.
Meo was hospitalized in October 2005 and remained so until his death in April of the following year. The clients were managed by the asociate during his illness. Eventually, the attorney left the Meo firm and 51 of 53 clients retained him to complete their cases.
The suit here was filed by the widow Meo individually and as administrix of the estate. (Mike Frisch)
An attorney who engaged in a conflict of interest due to his negligent supervision of a non-lawyer employee was publicly reprimanded by the Indiana Supreme Court.
The attorney defended a client in 2008-09 in connection with several crimes including battery of a person called "JB" in the court's order. JB faced charges of driving while intoxicated and there was a warrant for her arrest.
During the same time period, JB came to the attorney's office and was signed up as a client by the attorney's office assistant. At the time, they "should have known JB was a victim and witness in [the current client's] case." The attorney was disqualified in JB's case.
The attorney did not seek payment in either matter.
The court also noted that JB falsely denied being the person who had been a witness in the other case. (Mike Frisch)
An attorney who engaged in neglect and deceit for a decade in a variety of matters was suspended for two years by the New York Appellate Division for the First Judicial Department.
There was mitigating and aggravating evidence:
In light of respondent's admissions, the Referee convened a sanction hearing on November 3, 2011. In mitigation, respondent testified, inter alia, that over the years he has been treated by psychologists and psychiatrists for depression; he suffers from cardiac problems; that he financially supports and oversees the care his 90-year old mother; and that he is paying for college for his two children. Respondent also testified that he has reformed his practice, to wit, respondent now makes it his practice to send letters of engagement and, when applicable, sends written confirmation that he will not be proceeding with a matter; he uses a revised, "double" calendaring system; he uses an outside service to handle advertisements required for the labor certification process; and he uses an Internet-based program that electronically notifies him of deadlines.
In aggravation, the Committee introduced two prior Admonitions received by respondent. In September 2003, respondent was admonished for failing to file two immigration petitions and making intentional misrepresentations to the affected clients, which included providing them with fictitious INS file numbers. In May 2009, respondent was admonished for failing to timely file a client's immigration application.
A Louisiana Hearing Committee has recommended a reprimand of an attorney based on a finding that his web page proclaimation that he specializes in maritime personal injury and death cases violated advertising and specialization rules.
The 1999 Tulane graduate claimed that he received a certificate of maritime specialization from the law school.
A letter from the assistant dean of academic affairs confirmed the certificate in Maritime Law but did not use the word "specialization." The school does now use the word in describing the Maritime Law academic program.
The committee rejected the attorney's First Amendment defense without discussion. (Mike Frisch)
The Maine Supreme Judicial Court has ordered a one-year suspension in a case involving allegations that the attorney "is unable to discharge her professional duties due to significant substance abuse and substantial mental health conditions."
The attorney "generally rejects the notion that her profesional conduct has been adversely affected by alcohol, drugs, or any psychiatric condition."
The attorney was admitted in 1998 and represents primarily criminal clients in Maine and Massachusetts.
She had no prior criminal or disciplinary history until she was charged with driving under the influence in a December 30, 2010 accident. She claimed that the blood drawn on that night was not hers and failed to comply with with an order to provide a blood or tissue sample.
In 2011, the attorney was administratively suspended for failing to renew attorney registration and complete CLE requirements. She continued to practice law after the suspension.
In December 2011, the police responded to a call from the Mictrotel Motel concerning an intoxicated guest. The attorney had left the motel but returned while an officer was present:
As she walked around him, she appeared unsteady on her feet and her sweatshirt was unzipped, revealing her undergarments. [The officer] asked her to stop so he could speak to her, but she refused to respond to him. He followed her to the elevator and put his foot in the door so it would not close. [The attorney] said she would fight him if he tried to put her in handcuffs.
As the police officer entered the elevator, the attorney kicked at him. A search revealed prescription pills.
She was stopped by the same officer for driving while suspended in January 2012 and picked up a driving under the influence charge in February 2012. She was admitted to a hospital and a full psychological workup was done.
She pled guilty to criminal charges, was placed on probation and was jailed for probation violation.
The court's decision to suspend the attorney was "not taken lightly." The attorney was able to compensate with her alcohol and mental health issues until the death of her father and her own divorce. While her "chronic alcoholism and bi-polar disorder can, in all likelihood, be managed with proper medication, supervision, and treatment," she "is currently mired in the depression of having hit rock-bottom. She will need help and a plan to dig out."
The court thus set a number of conditions that must be met for reinstatement. (Mike Frisch)
Monday, May 27, 2013
The Vermont Supreme Court reversed an award of damages for emotional distress in a legal malpractice case.
The court did not rule out the possibility of such damages but found an insufficient basis here:
...we conclude that the trial court erred in awarding damages for plaintiff’s emotional distress in this case. Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness. In many ways, this case is less compelling than the loss-of-home cases cited above; plaintiff here did not lose his home but, rather, faced a threatened loss of his home which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast to the loss of liberty or one’s child—very significant losses for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected—what plaintiff ultimately lost in this case was money. We consider plaintiff’s losses in this case to be economic, and reverse the trial court’s award of emotional distress damages to plaintiff.
Sunday, May 26, 2013
The web page of the Tennessee Supreme Court has this report on a decision from last Friday:
The Tennessee Supreme Court ruled today that Knoxville attorney Herbert S. Moncier must pay the costs incurred prosecuting the disciplinary proceeding that resulted in his one-year suspension from the practice of law in Tennessee.
On June 1, 2011, the Supreme Court assessed costs totaling $22,038.32 against Mr. Moncier. Afterward, Mr. Moncier petitioned for relief from costs, arguing that the disciplinary proceedings resulting in his suspension were unfair and unconstitutional.
A three-member panel of the Tennessee Board of Professional Responsibility (BPR) refused to grant him relief from costs. Mr. Moncier appealed to the Supreme Court, again arguing that he should not be required to pay costs because the disciplinary proceedings that resulted in his suspension were unfair and unconstitutional. Mr. Moncier also argued that the members of the BPR panel assigned to hear his petition for relief from costs were biased against him.
The Supreme Court addressed and rejected Mr. Moncier’s arguments and affirmed the BPR panel’s decision denying him relief from costs. Among other things, the Court concluded that Tennessee’s attorney-disciplinary procedure is consistent with the due process requirements of the Tennessee and United States constitutions and that disqualification standards applicable to judges do not apply to members of the Board of Professional Responsibility.
The court rejected the claim that the proceedings were flawed because the officials had not taken an oath to uphold the U.S. and Tennessee Constitutions.
The Nashville Post had this story on the attorney 's civil suit in response to the bar prosecution. (Mike Frisch)
Friday, May 24, 2013
The Oklahoma Supreme Court has ordered that an interim suspension of an attorney who entered a no contest plea to bringing contraband into a penal institution be set aside.
The matter is terminated without further disciplinary proceedings.
Esquire Empire had this report on the criminal case and resulting interim suspension:
The Oklahoma Supreme Court has suspended Tulsa attorney Sandra Lee Tolliver from the practice of law after Tolliver in February was handed an 18 month deferred sentence on a misdemeanor charge of bringing contraband into a jail. Tolliver was originally with a felony on the same allegations, in which she allegedly brought scissors, tweezers and a razor into the David L. Moss Criminal Justice Center.
Tolliver’s husband, Michael S. Tolliver, was charged on the same day with bringing contraband into jail. Charging information alleged he possessed the same items for which Sandra Tolliver was charged – scissors, tweezers and nail clippers. An affidavit of probable cause in Michael Tolliver’s misdemeanor case says a deputy reviewed surveillance video from the Tulsa jail and saw Sandra Tolliver remove large envelopes from a bag she’d carried into the jail visiting area and place them on top of paperwork Michael Tolliver had placed on the table. The deputy wrote that Michael Tolliver gathered the envelopes, placing one inside of others.
The same deputy reported that he listened to a phone conversation between Mr. and Mrs. Tolliver recorded later that night. In the conversation, Michael Tolliver reportedly told Sandra Tolliver he was on lock down because a jail official had found the “stuff” Sandra Tolliver had brought him. The affidavit says a jail officer had thrown the “big ass cookie away.” Sandra Tolliver reportedly replied “Oh no.”
The same deputy reported that he listened to another conversation recorded two days later – on Feb. 19, 2012, in which Michael Tolliver told Sandra Tolliver “I think next time you should just bring you (sic) files in and not your bag, that’s always clever.”
The deputy reported that he reviewed logs of attorneys, clergy and special visitors who signed into the jails and noticed Michael Tolliver had visited in with Sandra Tolliver — his wife and his attorney. In a recorded Feb. 22 interview with a deputy, Michael Tolliver denied having received contraband from his attorney and wife. He reportedly told the deputy he’d obtained the scissors, nail clippers and razor in question from another inmate. The affidavit says Michael Tolliver told the deputy “off the record, I will tell my wife not to bring in any more cookies” then asked the inmate for a bite of the cookie the deputy reportedly took from him, but then said “I’m just kidding.”
The charging document said jail staff also found pills in Michael Tolliver’s possession, which appeared to be vitamin C and omega 3 capsules, and some Godiva brand chocolate. Mr. Tolliver was being held in the jail awaiting pickup by United State’s Marshals. He was convicted in federal court in 2011, at the age of 61 on two counts of arson and to counts of use of fire to commit mail fraud in connection with fires in 2001 and 2003 at Tulsa rental properties. He was facing a 36 year prison sentence.
In the interim suspension of Sandra Tolliver’s law license, the court set a routine schedule in which she may show cause why the interim suspension should be set aside and set a May 9 deadline for any filings showing why a final order of discipline should not be imposed, to request a hearing, file a brief or submit evidence that might mitigate the severity of the discipline the court may impose.
The court rejected the claimed defense of ingorance of the law in connection with the criminal matter. (Mike Frisch)
The Kansas Supreme Court has disbarred an attorney admitted in 1970 for misconduct in connection with a case involving a building collapse.
The attorney filed "as bare bones of a petition [suit] that could possibly pass muster" and failed to proceed in a competent and diligent manner. But the cause of the sanction had to do with a deposition he defended.
The deponent had had testing performed on concrete at issue but did not wish to disclose that fact because it was done by a moonlighting friend. The deponent was concerned that the friend could lose his job if the work came to light.
When the issue arose at the deposition, the deponent asked for a break. He expressed his concerns to the attorney and later testified that the attorney told him
Well, you're going to say what you want to say, so go ahead.
The deponent testified falsely and the false testimony was not corrected.
The attorney denied he had counseled false testimony but defaulted in the bar disciplinary case. (Mike Frisch)