Thursday, October 31, 2013

Can You Hear Me Now?

An attorney who "engaged in numerous acts of misconduct by behaving in an unprofessional and antagonistic manner during the course of a civil case" was suspended for two years by the Florida Supreme Court.

The court rejected the referee's proposed 90 day suspension:

There are proper types of behavior and methods to use when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional without being obnoxious.

The attorney also was ordered to appear personally before the court for a reprimand.

The attorney "argued that his voice is naturally loud, he speaks loudly when he feels he is not being heard, and he is working with a behavioral therapist to correct his behavior. The referee found Respondent's explanation concerning the volume of his voice patently unbelievable."

Footnote 5: "Members of The Florida Bar, law professors, and law students should study the instant case as a glaring example of unprofessional behavior." (Mike Frisch)

October 31, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Cannot Join Political Action Committee

The Florida Judicial Ethics Advisory Committee has opined that a judge may not be a member of SUNPAC, described in the opinion as a political action committee that promotes stong ties between the United States and Israel.

The committee split evenly on the question whether the judge may attend SUNPAC events:

The  Committee is evenly divided in resolving the second inquiry. One half is of the  opinion that, due to the SUNPAC’s stated political purpose, the judge would be  prohibited from attending any of its functions. To do so would give the appearance  that the judge is supporting SUNPAC’s political positions and candidates it  endorses. Therefore, the judge would be lending the prestige of judicial office  to SUNPAC’s political positions and candidates it endorses, in violation of  Canons 2B and 7. 

The  other half is of the opinion that, although SUNPAC is a political organization,  it is not a political party. Therefore, mere attendance at an event may be  permissible under very limited circumstances. The judge could attend only if  the event was not a political party function (Canon 7A(1)(d)), the judge does  not pay a fee to attend (Canon 7A(1)(e)), the judge’s attendance cannot be  construed to be a public endorsement of a candidate (Canon 7A(1)(b), and the  judge does not actively engage in any political activity (Canon 7D).

 Although we cannot  prejudge a particular event, in making the determination of whether the event  is appropriate to attend, the judge should take into account not only subject  of the program but also the advocacy of the organization.  The more zealous, and the more one-sided the  advocacy of the organization, the more weight the judge should give that factor  in deciding whether to attend or not.  If  an organization had historically taken a very consistent, unwavering position on  a highly political issue, that would create the rebuttable presumption that an  event they were sponsoring on that issue was not informative but instead was an  exercise in advocacy.   That presumption  could be rebutted by advance publicity concerning the event, the bent of the  speakers, the location of the event and the totality of circumstances  surrounding the event.

(Mike Frisch)

October 31, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Judges Of Sangamon County

The Illinois Review Board has proposed a suspension of six months of a former judge for misconduct in office:

The Administrator charged Respondent with  misconduct arising out of Respondent's actions as an associate judge in Sangamon  County in dismissing a traffic citation issued to the daughter of another judge  by indicating on the court file that the State had filed a motion to dismiss the  citation due to insufficient evidence when Respondent knew that that State had  not done so. The Hearing Board found that Respondent engaged in conduct  involving dishonesty, fraud, deceit or misrepresentation in violation of Rule  8.4(c) and in conduct prejudicial to the administration of justice in violation  of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010). The Hearing  Board recommended that Respondent be suspended for a period of six months.

(Mike Frisch)

October 31, 2013 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Dance Instructor

The Illinois Hearing Board has recommended a censure of an attorney, finding that he had testified falsely in an immigration proceeding involving his mother-in-law;

Based on her marriage to Beaudion, [mother-in-law] Antonina  petitioned to adjust her immigration status. On November 18, 2003, in connection  with Antonina's immigration matter, Respondent submitted a Form I-864 Affidavit  of Support (Affidavit of Support) to the Department of Homeland Security (DHS).  By submitting this document, Respondent agreed to financially support Antonina  if she were unable to support herself. The Affidavit of Support stated that  Antonina resided at 501 N. Clinton Street...

Respondent's marriage to Tanya began to unravel in  May 2004, when Respondent learned that Tanya was having an affair with her dance  instructor. Respondent filed for divorce from Tanya on June 11, 2004. Shortly  thereafter, on July 7, 2004, Respondent sent a letter to DHS requesting to  immediately withdraw his Affidavit of Support for Antonina. Respondent retained  counsel, who sent DHS a more detailed letter and affidavit signed by Respondent  on July 14, 2004. The letter and affidavit stated that Respondent had learned  that Antonina's marriage to Beaudion was fraudulent. An investigation into  Antonina's marriage ensued, and DHS initiated removal proceedings against  Antonina.

The board rejected charges of dishonesty in several instances but found misconduct in testimony:

...we find that Respondent testified falsely  when he stated that, between July 2000 and June 2004, Antonina always lived at  1703 W. Wrightwood and it was not possible that she lived elsewhere for any  period of time. This testimony cannot be reconciled with Respondent's position  here that Antonina moved out of his home for a period of time in the fall of  2003. There is no question that Respondent was aware that Antonina moved out, as  he was the one who insisted she do so before he would sign the Affidavit of  Support. Although Antonina apparently did not move in with Beaudion, she did  move out of 1703 W. Wrightwood for a period of time, according to Respondent and  the many witnesses who testified in this matter. Accordingly, Respondent's  Immigration Court testimony was false.

(Mike Frisch)

October 31, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Mental Health Suspension To Disciplinary Suspension

From Kathleen Mahoney on the web page of the Ohio Supreme Court:

The  Supreme Court of Ohio today suspended the law license of Cincinnati attorney  Joy Lawrence for one year. The unanimous decision also ended Lawrence’s mental  health suspension, imposed in 2005, and then addressed the underlying  disciplinary charges.

Following a surgery in 2002, Lawrence suffered significant cognitive impairment. The court in 2005 found that she had a mental health disorder stemming from the surgery, which impaired her ability to practice law, and imposed a mental health suspension.

In the current case, the Board of Commissioners  on Grievances and Discipline determined that evidence submitted by Lawrence and  an independent mental health evaluation demonstrated that she is no longer  mentally ill. The court agreed and, in its per curiam (not authored by a  specific justice) opinion, today terminated Lawrence’s mental health  suspension.

In reviewing the underlying misconduct in  three client matters prior to 2005, the board also found that Lawrence did not  maintain complete records of the client funds in her possession, withdrew fees not  yet earned from her client trust account, did not perform contracted legal  work, and failed to cooperate in the resulting disciplinary investigation. 

The court agreed and determined that the  board’s recommended sanction of a one-year actual suspension from the practice  of law was appropriate for this misconduct. 

If Lawrence wants to practice law again, she will  need to petition the court for reinstatement; submit a report from a mental health  professional stating that she is able to return to the competent, ethical, and  professional practice of law; and enter into a contract with the Ohio Lawyers  Assistance Program and comply with their treatment recommendations. If  reinstated, she must serve two years of monitored probation.

The opinion is linked here. (Mike Frisch)

October 31, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Oversight Does Not Extinguish Fee Claim In Lawyer-Lawyer Dispute

If you are a New York attorney and wish to be paid under a contingency fee agreement in a medical malpractice action, it is prudent to file the agreement with the Office of Court Administration in a timely manner --within 30 days.

That lesson emerges from a case decided yesterday by the New York Appellate Division for the Second Judicial Department.

Lawyer One retained Lawyer Two to assist in the litigation. When the case was resolved, Lawyer Two contended that Lawyer One had shortchanged him.

Lawyer Two had inadvertantly failed to file the required papers. Fortunately for him, the court excused the lapse:

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion. Here, the reason for the delay, in effect, [Lawyer Two's law office failure, was an isolated, inadvertent mistake and there is no prejudice to [Lawyer One], as the remaining contractual contentions will be resolved in connection with any separate plenary action that may be commenced. Accordingly, the Supreme Court providently exercised its discretion in permitting the filing of a retainer statement nunc pro tunc by extending the time to do so for "good cause" shown (citations omitted)

(Mike Frisch)

October 31, 2013 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

The Spring 2013 edition of the Georgetown Journal of Legal Ethics is now available at this link.

Monroe Freedman has again published with us -- an article entitled "The Unconstitutionality of Electing State Judges."

There are also fine pieces on advising the president by William R. Casto, the development of law firm marketing by Silvia Hodges, the "reason-giving" lawyer by Donald J. Kochan and the forgotten foundations of the attorney-client privilege by Norman W. Spaulding.

Thanks to the authors and editors for this contribution to the legal profession. (Mike Frisch)

October 31, 2013 in Current Affairs, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

More Than Poor Judgment

An attorney convicted of felony concealment of securities and wire fraud was suspended for three years by New York Appellate Division for the Second Judicial Department.

The court described the reasons for the sanction:

In determining an appropriate measure of discipline to impose, we find that the respondent has endured hardships as a result of his conviction, including difficulty maintaining his practice and obtaining new clients, financial difficulties, both as a result of the harm to his practice and the expenses incurred in his defense, and embarrassment resulting from his conviction. However, we find that, rather than demonstrating remorse, the respondent has tried to minimize his culpability, both before the sentencing Judge and the Special Referee, by describing what he did wrong as, inter alia, a "poor exercise of judgment" and a "failure to exercise due diligence." In fact, the respondent abused his position as an attorney, affirmatively aided the commission of a felony, to wit, securities fraud, and affirmatively acted to conceal the commission of that felony. To the extent that the respondent reached out to the Securities and Exchange Commission and the United States Attorney's Office, he did so with the knowledge that others were already under investigation, and that he might be next.

(Mike Frisch)

October 31, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

"Patina Of Propriety"

An ad hoc District of Columbia Hearing Committee has proposed a suspension of 90 days and fitness of an attorney who engaged in discussions with an elderly woman that he knew was represented in the matter under discussion - the impact of the woman's estate plan on the interests of his client.

The conduct also involved dishonesty.

According to the report, the attorney

made no real attempt to find out if Ms. Kincaid represented Ms. Jumper, a fact he knew to be true, but simply refused to believe because it was not in his client's interest. Instead, he attempted to give these meetings a patina of propriety - and give himself legal deniability - by asking Ms. Jumper whether she was represented by counsel. However, Respondent did not ask such an open-ended question. Instead, Respondent asked Ms. Jumper if she was represented by Troxell Kincaid and Mullin, without informing Ms. Jumper that that was name of Ms. Kincaid's firm. It is clear that Respondent questioned Ms. Jumper about her representation in a manner designed to cause Ms. Jumper to say that she was not represnted, whether that was the truth or not.

We also note that, in Respondent's view, Ms. Jumper was lucid only when she took action favorable to his client, and was not lucid when she action harmful to his client. He does not articulate a principlied basis for this distinction, and we see none in the record.

 The sanction recommendation was driven by the conclusion that the attorney "utterly fails to recognize the wrongfulness of his conduct" and testified he would do it again.

The case is In re William Rogers, Bar Docket No. 2003-D274 and can be accessed through this link.

The underlying litigation resulted in an opinion of the District of Columbia Court of Appeals, which tells the story in greater detail:

Sally Jumper is dead, but a dispute arising out of the handling of her assets lives on. We must decide whether the trial court abused its discretion by sanctioning Allen Anderson, a friend of Ms. Jumper's, and William Rogers, Mr. Anderson's attorney, for the manner in which the pair conducted litigation over Ms. Jumper's assets. We affirm in part and vacate and remand in part the order awarding sanctions.

The court also referred the matter to Bar Counsel.

The hearing committee did not give collateral estoppel effect to the court's opinion. (Mike Frisch)

October 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Cogent Explanation

Am Law Daily's Sara Randazzo has a story of a suspension imposed on a former Sidley Austin partner by the New York Appellate Division for the First Judicial Department.

The misconduct:

In 1986, respondent joined a New York law firm as a partner. In or about January 2008, the law firm confronted respondent regarding car service rides taken by respondent and members of his immediate family which respondent improperly charged to firm clients. Respondent resigned from the firm the cost of reimbursing the affected clients was charged to his capital account (approximately $50,000). The firm also informed respondent that it intended to report him to the Departmental Disciplinary Committee (Committee) unless he reported himself, which respondent did...

While respondent has practiced law for 45 years without a prior disciplinary problem, as the Referee observed, "[t]he reason a successful attorney resorted to such continual unethical conduct has not been really explained. Respondent's testimony suggesting that it was carelessness explains neither why he first left the vouchers blank and, then, having to complete the allocation forms, classified them as client charge rather than personal. The testimony offered by his therapist and capsulated in his letter report does not provide a cogent explanation for his patient's admittedly dishonest actions."

The court ordered a one-year suspension.

Was he sharing cab rides with another former partner who faces ethics charges in Illinois for allegedly fabricating taxi receipts? (Mike Frisch)

October 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 29, 2013

Disbarment For Subornation Of Perjury

The Oklahoma Supreme Court has disbarred an attorney as a result of a state court conviction for subornation of perjury.

NewsOK had this report on the criminal case:

[Attorney] Clayborne represented Jose Cruz Herrera at a jury trial in February 2008. Herrera was convicted at the trial of drug trafficking, conspiracy and cocaine possession. He is serving 102 years in prison.

Prosecutors alleged Clayborne had a witness lie in a failed effort to give Herrera an alibi for the day of a 2007 drug deal. The witness testified at the drug trial that she was with Herrera in Mexico on that day and had videotaped him there.

Prosecutors said Clayborne had her testify even though she told him “straight to his face” beforehand that she did not shoot the video and was afraid she would get into trouble if she testified she had done so.

The videotape actually was shot in 2005 but it had been altered to reflect a date in 2007.

Prosecutors alleged Clayborne put into evidence a shortened version of the altered videotape, knowing the date on it was false.

Clayborne's attorneys contended he did not know the videotape had been altered and did not know the witness was lying.

(Mike Frisch)

October 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Generous But With Prior Discipline

The New York Appellate Division for the First Judicial Department has imposed a public censure of an attorney who had split fees with a non-lawyer.

The court considered the following:

In determining an appropriate measure of discipline to impose, we find that the respondent has produced impressive evidence of his good moral character, as well as his generous charitable contributions. Moreover, he has expressed remorse for his conduct. However, the respondent has a prior disciplinary history consisting of a Letter of Admonition, personally delivered, for negligently converting client funds, commingling personal funds with client funds, and communicating with a party known to be represented by counsel (March 2005); a Letter of Caution for failing to enter into a written retainer agreement with a matrimonial client and failing to provide the client with a Statement of Client's Rights and Responsibilities (February 2006); a Letter of Caution for improperly seeking to limit his individual liability to a client for malpractice (February 2006); a Letter of Admonition for, inter alia, neglecting a client's legal matter, improperly notarizing documents, and submitting a falsely notarized document to a court of law (February 2010); and a Letter of Admonition for improperly issuing a subpoena duces tecum in a criminal action (September 2011).

(Mike Frisch)

October 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Akron School of Law Nov. 8: Presents Joan Bikuspic

From John Sahl, news from University of Akron School of Law:

The Joseph G. Miller and William C. Becker Center for
Professional Responsibility
Journalism and the Law Lecture
 

Joan Biskupic
Editor-in-Charge, Legal Affairs, Reuters News

From Thurgood Marshall to Sonia Sotomayor: The Voices of Groundbreaking Supreme Court Justices

Nov. 8, 2013 at 4 p.m.
Free and open to the public: Room 151, The University of Akron School of Law
150 University Ave., Akron, Ohio

To register: Ph: 330-972-6363 / Email: manovac@uakron.edu / Online: www.uakron.edu/law / CLE credit has been requested. [Posted by Alan Childress]

October 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Separated By More Than The Hudson River

The American Bar Association promulgated sanction standards in an effort to promote greater uniformity in imposing discipline on members of the legal profession.

Disparities nonetheless persist.

A case in point involves discipline for failure to respond to a bar complaint.

A New York attorney will be summarily suspended when a response is not received. The suspension matures into a disbarment if no response is received within six months of the suspension.

An example from the First Department is linked here.

In contrast, the same misconduct often results in much lesser discipline in New Jersey.

An example from the New Jersey Supreme Court is linked here.

Notably, the Disciplinary Review Board proposed a public censure. Mercifully, the court raised the sanction to three month suspension and until further court order. (Mike Frisch)

October 28, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Awardees of Zacharias Prize announced

Samuel Levine of Touro Law Center and chair of the prize committee has announced that the "winners have been selected for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Dana Remus, for Out of Practice: The Twenty-First Century Legal Profession, 63 Duke Law Journal __  (2013).  An Honorable Mention will be awarded to Norman Spaulding, for The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege, 26 Georgetown Journal of Legal Ethics 301 (2013). The awards will be presented in January at the Section Breakfast of the AALS Section on Professional Responsibility." [Alan Childress]

October 28, 2013 in Professional Responsibility, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Treatment Mitigates Sanction

The New York appellate Division for the First Judicial Department has imposed a public censure of an attotney for a series of DWI incidents that spanned from 2004 to 2011.

The court rejected the implied request for a suspension by the Departmental Disciplinary Committee, finding that the attorney's participation in the lawyer counseling program merited a lesser sanction:

The facts here, viewed in conjunction with the relevant precedent, favor public censure with respondent's continued participation in LAP (see Matter of Krishnan, 99 AD3d 207 [1st Dept 2012][censure for misdemeanor convictions of aggravated driving while intoxicated and giving unlawful gratuities to a police officer]; Matter of Antomattei, 96 AD3d 136 [1st Dept 2012][censure for DWAI violation and two DWI misdemeanor convictions, one of which resulted in an admonition, and required to enroll in and complete LAP for one year]; cf. Matter of LaPenta, 67 AD3d at 120 [six-month suspension for two DWI misdemeanor convictions and probation violation; the court noted relapse while on probation, first arrest occurred while on way to court, and second arrest occurred four days after being sentenced to probation for first conviction]; Matter of Clarey, 55 AD3d at 210-211 [one-year suspension for misdemeanor convictions for DWI and leaving the scene of an accident involving personal injury]).

While respondent's lack of candor as to the circumstances surrounding the 2006 arrest is troubling, he attempted to correct his testimony via a post-hearing affirmation. Notably, the Referee and the Hearing Panel, both of whom recommended censure, gave the issue full consideration. Moreover, the Referee and the Panel both noted that there was no evidence that respondent was unfit to practice law nor was there evidence that his actions caused neglect or harm to any client matters. Further, respondent appears to have taken significant steps toward his rehabilitation. Therefore, under the circumstances, respondent's lack of candor is not sufficiently aggravating to warrant an elevated sanction.

(Mike Frisch)

October 28, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Veteran Attorney Censured For Client Solicitation

An attorney who was admitted to practice in 1964 and had no prior discipline was publicly censured by the Pennsylvania Supreme Court for improper solicitation of clients.

The solicitations were made through a company paid by the attorney.

The Disciplinary Board found the sanction appropriate

Admittedly, the amount of money Respondent paid to PCH, the number of accident victims PCH contacted, and the length of time the PCH runners were employed is not insignificant. Nonetheless, the weighty mitigating factors of [his] extensive cooperation in ODC's exhaustive investigation, [his] unblemished disciplinary record spanning nearly five decades, and the absense of any aggravating factors tip the balance away from imposing a period of suspension.

PCH Consulting was an independent entity that marketed services to medical providers and solicted legal business. (Mike Frisch)

October 28, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, October 26, 2013

Fungible Commodity Clients Sue Too Late

The Kentucky Supreme Court has affirmed on statute of limitations grounds the dismissal of claims of fraud, misepesentation  and breach of fiduciary duty brought against attorneys involved in the litigation of Fen-Phen claims.

The court's opinion describes how "50 plaintiffs in Kentucky with Kentucky attorneys could end up in an Alabama court case represented by law firms in Mississippi and Alabama."

The 50 were a group of plaintiffs in  Kentucky case that had what their Kentucky attorneys felt were "low value" claims.

They were sold off without their knowledge (and with a cut of the fee) to other law firms in an Alabama case that needed them because of a requirement that they certify within a given time frame that  a minimum number of the claimants that they represented were willing to participate in a settlement.

The plaintiffs got no individualized consideration of their claims; rather, they were treated as "fungible commodities." They each got a settlement check for $29,500 of a $72,000 settlement but were left in the dark over the amount and distribution of the proceeds.

Suffice it to say that the lawyers divided up the rest.

The matter came to light when a lawyer  conducted an investigation that peeled back the Fen-Phen litigation onion and found that the clients were supposed to have received slightly less than $48,000.

That discovery triggered the start of the statute of limitations.

Here, the court held that Kentucky statute of limitations law applied (not Alabama, as the Circuit Court had held) but that the suit was nonetheless filed too late. (Mike Frisch)

October 26, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Gambler No Longer

The Pennsylvania Supreme Court has reinstated an attorney was had been suspended as a result of a mail fraud conviction.

The focus of the proceeding was on the petitioner's efforts to deal with his longstanding gambling addiction.

According to the Disciplinary Board report, the petitioner had been abstinent from gambling from 1984 to 1999. He relapsed in 2000 but has been gambling-free since 2003.

The report describes how the petitioner went from gambler to nationally certified gambling addiction counselor ("the highest level [of certification] one can obtain with the National Counsel on Compulsive Gambling') and his efforts to help others with their gambling.

The petitioner served as Deputy Commissioner of Elections in Philadelphia County for 30 years. (Mike Frisch)

October 26, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

Hogwash

The Iowa Supreme Court has imposed a public reprimand of an attorney who also is a veterinarian.

The 75-year-old attorney/vererinarian operated a hog confinement facility on property owned by an Iowa corporation. He and his corporation stopped paying the real estate taxes. A limited liabilty company purchased the property at a tax sale. The new owner filed a replevin action against the attorney that resulted in a monetary judgment.

The misconduct involved actions in response to the judgment. The attorney claimed that opposing counsel had engaged in deception and collusion with their client during the tax sale. 

The court found that the attorney had taken frivolous positions in a motion for relief from the judgment, concluding that an attorney is subject to discipline for frivolous actions in a pro se capacity as well as on behalf of a client. (Mike Frisch)

October 25, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)