Tuesday, December 31, 2013

Legal Profession Blog Records Millionth Hit

This month the Sitemeter ticked past 1,000,000. Happy New Year to all, and thanks for checking in. Thanks most of all to Mike Frisch for his dedicated research to find all these stories and dispositions, and for his reporting on them here so prodigiously and clearly. His attention to results and process has really taught me a lot over the past seven years. Thanks also to Jeff Lipshaw for his insightful posts over the years and for creating this blog. Mike and I could not tell an HTML from a hot meal on Sept. 18, 2006! [Alan Childress]

December 31, 2013 in Blogging | Permalink | Comments (2) | TrackBack (0)

Normal, Not Paranormal, Activity

A seventeen-year-old boy, along with a group of his friends, broke into the former Ladd Center in the Town of Exeter in a search for ghosts.

The Ladd Center housed a place to treat the "feeble-minded" and has acquired a reputation that it is haunted more fully recounted here and here.

It was closed in 1994 and has "no trespassing" signs posted.

Instead of finding what the court whimsically called "things that go bump in the night," the group encountered four bottles of what turned out to be sulfuric acid.

The boy was severely burned when one of the bottles broke.

He sued the State of Rhode Island on a theory of attractive nuisance. He lost at trial.

He also lost on appeal to the Rhode Island Supreme Court. (Mike Frisch)

December 31, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Immigration Advice To Criminal Defendant Deemed Sufficient

From the web page of the Tennessee Supreme Court, reporting on a December 23 opinion

The Tennessee Supreme Court today upheld the conviction of a man who said he wasn’t aware that his guilty plea would result in his deportation or adversely affect his future eligibility to return legally to the United States.

In 2011, Juan Alberto Blanco Garcia, an alien illegally residing in the United States, pled guilty to the felony of neglect of a child under six years of age. With the aid of an interpreter in court, Blanco Garcia said he understood the charges, the sentence possibilities and that his guilty plea was made freely and voluntarily.  The trial court did not advise the defendant of the immigration consequences of the plea or inquire whether his attorney had done so. 

Before he entered the plea, however, Mr. Blanco Garcia’s attorney told him that he would be deported based on his status as an illegal alien and the guilty plea. The attorney also told Mr. Blanco Garcia that the guilty plea could adversely affect his future eligibility to return legally to the United States, but she advised him to consult an immigration lawyer for more specific information about the issue.

After his conviction, Mr. Blanco Garcia filed a petition alleging that his attorney was ineffective and his plea involuntary because he was not informed of the future immigration consequences of the guilty plea.

The Supreme Court determined that the attorney fulfilled her obligation of effectively representing Mr. Blanco Garcia by advising him that he would be deported upon pleading guilty and that the guilty plea could have future adverse immigration consequences.  The Court explained that this general warning was sufficient because federal law did not clearly and succinctly describe the effect Mr. Blanco Garcia’s guilty plea would have on his future eligibility to return legally to this country. 

As to Mr. Blanco Garcia’s claim that his plea was unknowing and involuntary, the Court declined to decide whether the federal or state constitution requires courts to advise a person pleading guilty of the immigration consequences of the guilty plea.  The Court explained that, even assuming the trial court’s failure to advise Mr. Blanco Garcia of the immigration consequences of his plea amounted to constitutional error, the error was harmless because Mr. Blanco Garcia’s attorney had already informed him of the immigration consequences of his plea.

Read the Opinion in Juan Alberto Blanco Garcia v. State of Tennessee, authored by Justice Cornelia Clark.

(Mike Frisch)

December 31, 2013 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, December 27, 2013

Plumbing The Depths Of Misconduct

An attorney who was sued over a bill for plumbing services failed to advise opposing counsel of his change of address.

He nonetheless contended in the litigation that opposing counsel had failed to provide proper notice and had falsified certificates of service.

He conditionally admitted ethical misconduct and has been publicly reprimanded by the Nebraska Supreme Court. (Mike Frisch)

December 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Internet Use Admissible In Death Of Child

A mother convicted of negligent homicide and related offenses after one of her children drowned in a bathtub and another was severely injured appealed, claiming the the trial court erred in admitting evidence of her internet use while the children were in the tub.

The evidence showed that she was on a web page that was devoted to discussion of breast implants.

The defendant gave conflicting accounts to police and other witnesses
about the nature and length of her computer use, but admitted that she
“posted [a] blog” on a website named “myfreeimplants.com.” The State
described the website, which the defendant admitted that she had visited since
2007, as a “social networking website where people can make donations for
others to get free breast implants.” A forensic examination of the defendant’s
computer resulted in a report that documented nearly continuous user activity,
exclusively at myfreeimplants.com, from 4:20 p.m. to 5:02 p.m. The majority of
entries were associated with viewing and writing blog posts on
myfreeimplants.com or sending messages on the website. The report
documented only when a user entered, or was directed to, a new web address;
thus, several gaps existed in user activity during which the user could have
been watching videos, reading online content, or composing messages.

The conviction was affirmed by the New Hampshire Supreme Court.

WMUR9 had this report. (Mike Frisch)

December 27, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Excuses Aggravate Misconduct

The Wisconsin Supreme Court rejected a proposed suspension of four months and imposed a six-month sit down of an attorney in light of her prior discipline and pattern of excuses rather than acknowledgement of misconduct.

The court listed the excuses for misconduct in the representation of client C.M.

·         C.M. wrote and called her too frequently.

·         Telephone calls from prisons are not clearly identified on telephone systems.

·         She was out of the office or busy when C.M. called. 

·         Her failure to respond to C.M.'s communications was reasonable given that there was no ongoing activity in his case at that time.

·         C.M. could relay messages to her through his family and friends.

·         Written communications to a client in the federal prison system are risky because other inmates may steal them.

·         Keeping memos or notes of her communications with clients is dangerous for her clients.

·         Setting up telephone conferences through the prison system is difficult.

·         She is too busy to document all communications with clients.

·         She could not send C.M. his file because it was too large to transmit to the prison.

·         The precise nature of services to be rendered in criminal matters is difficult to state in writing at the commencement of representation.

·         She was unaware and therefore did not inform C.M. of the district court's denial of relief under 28 U.S.C. § 2255 because of the "unique nature" of the federal court's electronic filing system.

(Mike Frisch)

December 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tax Appeal Advice Is Unauthorized Practice

Kathleen Maloney has a summary of a recent decision of the Ohio Supreme Court

The Supreme Court of Ohio ruled today that a Texas company with offices in Ohio engaged in the unauthorized practice of law in this state when it prepared and filed a tax appeal and appeared before the Ohio Board of Tax Appeals.

In a unanimous decision, the court adopted a consent decree recommended by the state’s Board on the Unauthorized Practice of Law and proposed by both sides in the case. The decree is an agreement between the Texas tax advisory and consulting firm, Ryan, L.L.C., and the Ohio State Bar Association (OSBA), which filed the charges.

In the decree, Ryan, L.L.C., and its employee, Brett Koch, admit that they were practicing law in Ohio without the appropriate legal authorization when they prepared and filed a tax appeal for their client, Owens Corning, and appeared on their client’s behalf before the Ohio tax board.

The decree states that the company and Koch did not understand that their actions constituted providing legal services under Ohio law, that they have ceased giving their client any services that would be considered legal representation, and that they have fully cooperated with the OSBA’s investigation. The OSBA recommended no civil penalties against the company.

Ryan, L.L.C., and Koch are prohibited by the decree from representing Ohio clients in forums requiring a lawyer and from preparing legal documents or rendering legal advice about legal documents in the state.

The opinion is linked here. (Mike Frisch)

December 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 24, 2013

Judges, God And Country

An opinion from the Florida Judicial Ethics Advisory Committee:

ISSUES

 

May a judge attend an annual event called “God and Country Day,” organized by a local church which focuses on the laws of the state and country and its foundation in Judeo-Christian values?

 

ANSWER: Yes.

 

Is it permissible for a judge to pose for a photograph with the pastor and other elected officials, knowing that it would be published in a local newspaper?

 

ANSWER: Yes, unless the judge is aware or has reason to believe that the pastor intends to use the photograph to advance the private interests of the church through solicitation of members or donations.

 

If asked, may the judge make public religious comments from the pulpit at this event?

ANSWER: Yes, as long as the judge’s comments do not otherwise violate the Canons.

(Mike Frisch)

December 24, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Indefinite Suspension For Stealing From Church

Kathleen Maloney summarizes a decision issued today from the Ohio Supreme Court

A Dayton attorney who embezzled more than $100,000 from his employer has been indefinitely suspended today by the Ohio Supreme Court.

In a 4-3 decision, the court ordered that Mark Allan Anthony must pay nearly $128,000 in restitution and complete a treatment plan for gambling addiction before he is permitted to apply for reinstatement to the practice of law.

During a period of nearly four years as the business manager of the St. Francis de Sales Catholic Church in Lebanon, Anthony embezzled church funds to pay for personal expenses and to support a gambling addiction. After pleading guilty to grand theft in February 2007, Anthony was sentenced to 12 months in prison and ordered to repay the church the money he stole. The common pleas court later modified Anthony’s sentence after he had served four months in prison to five years of community control.

While the parties agreed during Anthony’s disciplinary hearing that he misappropriated approximately $118,000 in parish funds, they also stipulated that a firm handling insurance claims for the Archdiocese of Cincinnati had determined the church’s total loss to be $127,649.15.

The archdiocese had an insurance policy to cover employer dishonesty. It had also created a self-insured retention fund, which paid the first $100,000 on any such claim. In this matter, the fund paid $100,000 to St. Francis, and the archdiocese’s insurance company then paid the remaining amount of the loss to the church, not including a $500 deductible the church paid.

In its per curiam (not authored by a specific justice) opinion today, the court noted that Anthony is currently suspended from practicing law for three reasons – failure to register as an attorney, non-compliance with continuing legal education requirements, and his felony theft conviction. Not complying with attorney registration requirements is prior discipline, the court stated, which makes it is a factor that weighs against an attorney when the court is determining the appropriate sanction in a disciplinary case.

The Supreme Court’s majority also noted that this case is factually different from a recent decision (Stark Cty. Bar Assn. v. Williams) involving a Canton attorney who was disbarred for stealing money to maintain a gambling addiction. In that case, the lawyer kept gambling throughout her disciplinary proceedings and showed little likelihood of recovery, the court explained. Anthony, however, has served his sentences, has not gambled since 2007, and has participated in Gamblers Anonymous for seven years.

In addition to suspending Anthony indefinitely, the court ordered that he must make restitution of $127,649.15 to the retention fund, insurance company, and church before he may apply for reinstatement to the practice of law.

Joining the court’s majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill.

Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.

In the dissent, Justice Lanzinger stated that she would permanently disbar Anthony to be consistent with the court’s decision in Williams, which established the appropriate standard for discipline in these types of cases. In particular, she noted that the Williams court explained to attorneys and the public that the “strictest discipline” must be imposed against attorneys who have misappropriated funds. “This is not a case to back away from that pronouncement,” she concluded, adding that the mitigating factors in this case do not justify a sanction less than disbarment.

The opinion is linked here.

Christmas came a day early. (Mike Frisch)

December 24, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Wielding The Club To Back In The Club

The Rhode Island Supreme Court has reinstated a previously suspended attorney.

GoLocal Prov.com had a July 2011 report of several Rhode Island disciplinary matters, including this description of the attorney's issues:

A drinking binge and a confrontation with a club ultimately sealed the fate of Attorney Michael A. Mosco. According to a court account:

 “In the early morning hours of March 14, 2009, in the City of East Providence, the respondent, Michael A. Mosco, a member of the bar of this state, entered the dwelling of a friend and business associate without his consent. In what appears to have been an alcohol fueled rage he confronted his friend and a female companion, who was a former intimate partner of the respondent. Wielding a club, he assaulted the female victim, causing injury to her hand.”

A slew of legal troubles ensued: One year later, Mosco pleaded no contest to trespassing and felony assault and was sentenced to five years in prison, which was suspended, with five years of probation. On top of that, before entering his plea, Mosco was arrested in Newport on a disorderly conduct charge in September 2010.

 A few months later, the state Supreme Court stepped in. Even though the charges had nothing to do with his professional work, the court said it had to suspend his license to maintain the integrity of the profession: “The respondent has been convicted of a serious crime involving violence, tarnishing the integrity of the profession,” the court wrote. “It is of no moment that his crimes are unrelated to his practice of law, as we expect all members of the bar to comport themselves in accordance with the criminal laws of this state.”

The suspension was imposed in April 2011. (Mike Frisch)

December 24, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

Judge In Contempt

The Ohio Supreme Court affirmed a contempt citation against a county court of common pleas judge for disobeying an order of the court of appeals in a juvenile matter.

The order involved media access to the case brought by the Cincinatti Enquirer.

The court of appeals had allowed the paper into court without conditions. The judge then prohibited publication of names. The paper argued that the judge's order was a prior restriant on its right to publish.

The court here rejected the judge's contention that she had complied with the express mandate of the court of appeals' order.

Nky.com had this report. (Mike Frisch)

December 23, 2013 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

ADA Admission Claim Rejected In South Dakota

A University of South Dakota School of Law student sought counseling in his second year of law school along with his girlfriend in order "to resolve some relationship issues."

Among other things, he reported in the session that he experienced auditory hallucinations. He was shortly thereafter diagnosed with Bipolar II Disorder. He took medication for a period of time but stopped due to his finances and then "his mood fluctuated frequently."

He nonetheless was able to complete his second year of law school. His condition was "stabilized" when he was seen by counselors in August 2009.

He was arrested for DUI in February of his third year and pleaded guilty to reckless driving. He picked up and pleaded guilty to a second DUI two months later.

His application for admission in Iowa was granted after a psychological evaluation was conducted as part of the process.

He then took and passed the South Dakota Bar.

The South Dakota Supreme Court denied admision, finding that he had failed to prove his good moral character by clear and convincing evidence. His Iowa admission was not deemed dispositive of the fitness issue.

After taking the South Dakota bar exam, he was re-evaluated and the bipolar diagnosis was deemed "less likely." Rather, he appeared to have "clear manic/hypomanic syptoms his entire life."

The court followed the recommendation of the Board of Bar Examiners to deny admission, rejecting the claim that the denial of admission violated the Americans with Disabilities Act.

The court concluded that the denial was not based on the bipolar diagnosis.

Rather, the applicant failed to show that he was a "qualified individual" for bar admission.

The cumulative effect of [the applicant's] lack of candor, poor judgment, criminal record, and unreliability, paired with unresolved issues regarding the status of his mental health, justify the Board's decision.

He "may reapply at a future date with the understanding that the Board is allowed to conduct an individual assessment into [his] fitness to practice law, which includes a reasonable inquiry into [his] mental health." (Mike Frisch)

December 23, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, December 21, 2013

Ron Gilson Headlines Transactional Skills Program and Reception at AALS - Be There!

UnknownIf you are interested in a nice blend of theory and practice, and then are inclined to have a drink on somebody else's dime, you'll want to take in two events the AALS Section on Transactional Law and Skills is hosting at the AALS Annual Meeting in New York on January 3-4, 2014.  

***Shameless promotion and conflict of interest warning:  even though the esteemed Eric Gouvin, dean of the Western New England Law School and chair of the section asked me to post this, I'm one of the panel participants.***

First, the Section's program "Value Creation By Business Lawyers in the 21st Century” features Prof. Ronald Gilson (above left) as the main presenter.  It is scheduled for Saturday January 4th from 4-5:45pm.  

In 1984, the Yale Law Journal published one of the foundational scholarly articles in the study of transactional law, Professor Ronald Gilson’s “Value Creation by Business Lawyers.”  In the years since its publication the article has fueled a robust debate on the role of business lawyers and the justification for the services they provide.  On the thirtieth anniversary of that influential article this program will re-examine Professor Gilson’s thesis, evaluate the impact of the article, and discuss the prospects for business lawyers creating value in the 21st Century. 
The program will have two parts-

(i)            Part one will feature Professor Gilson, along with our two speakers (Professor Jeff Lipshaw and Professor Elizabeth Pollman). Professor Gilson will be speaking for approximately 20 minutes, followed by Professors Lipshaw and Pollman.   [Ed:  I've posted my essay "What Is It Like To Be a Beetle? The Timelessness Problem in Gilson's Value Creation Thesis."]

(ii)           Part two will feature presentation of the two papers selected from the call for papers.  We have two terrific papers selected for presentation: (1) Professor Susan R. Jones (The George Washington University Law School) & Professor Jacqueline Lainez (The University of Richmond School of Law) will present Viewing Value Creation by Business Lawyers Through The Lens of Transactional Legal Clinics, and (2) Professor Karl Okamoto will present Value Creation in StartUp Lawyering. 

The panel will then be followed by 15 minutes of discussion and questions/comments from the audience. We will conclude the program with a short 5 minute business meeting. 

Second, the Practical Law Company, which is now a division of Thomson Reuters, is sponsoring a reception in honor of the Section.  Here are the details:

Event:                   Thomson Reuters Reception for the AALS Section on Transactional Law and Skills

Date/Time:         Friday, January 3, 2014, 6:30-8:30 pm

Location:              Conference Room F, Executive Conference Center, Sheraton New York, 811 7th Avenue 53rd Street, New York, NY  10019

December 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Fictitious Facebook Name Is Unethical!

Arkansas Committee on Professional Conduct Panel C has imposed a suspension of twelve months of an attorney for criminal and other ethical misconduct.

The attorney was involved in a series of "discussions through on-line social media about a meeting of [three individuals] in Arkadelphia in which sex acts would be performed for money."  The meeting led to the arrest and misdemeanor charges against the three.

One witness testified that she received unsolicited sexually-explicit text messages from the attorney.

Another testified that she met the attorney on the social media service P.O.F. (Plenty of Fish) and thereafter met the attorney at a motel for paid sex. The attorney paid for the room but not the sex, as the witness "became anxious and left hurridly."

The criminal charges involved sex solicitation on a property managed by a business that the attorney owned.

He also created a Facebook page under a false name where he posed as the owner of Arkansas Models which sought females for photgraphy purposes. Notably, the panel found that the Facebook fictitious page amounted to conduct involving dishonesty, fraud, deceit or misrepresentation.

The attorney testified that he suffers from a sex addiction. (Mike Frisch)

December 20, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"The Understatement Of the Year"

Two attorneys who had represented opposing parties in civil litigation ended up in litigation against each other.

The Maryland Court of Appeals affirmed dismissal of the case, noting that "[t]o characterize Farmer and Mixter's relationship as acrimonious might be the understatement of the year. This court is sadly too familiar with the antics of these litigants from a dispute a few years ago..."

After the earlier case settled, Farmer "was so infuriated by Mixter's behavior that he sought sanctions against him."  Sanctions were imposed but reversed on appeal.

Farmer then sent twenty letters to various Maryland lawyers that alleged "unprofessional behavior" and sought information for a bar complaint. Mixter responded with a suit for defamation. Famer sent more letters to attorneys and filed a bar grievance against Mixter.

The court here affirmed the the dismissal of the Mixter suit against Farmer and a second attorney who allegedly conspired with him based on absolute judicial privilege grounds

Because [Attorney Grievance Commission] complaints are not published and lawyers' exposure is protected to a reasonable degree, we are unwilling to overlook the absolute privilege accorded to the AGC process simply because appellant feels aggrieved by the situation.

(Mike Frisch)

December 20, 2013 in Hot Topics, Privilege | Permalink | Comments (0) | TrackBack (0)

No Reasonable Explanation

The New Jersey Supreme Court has publicly censured a 67 year old attorney for gross neglect and related violations.

The attorney was a Vietnam veteran and former police officer with no prior discipline.

The Disciplinary Review Board denied the attorney's motion to vacate a default for failure to answer the compliant. The attorney sought to vacate, claiming that his "genuine remorse and a fatalistic view of what would occur as a result of this ethics case" and a hope that it "would just go away" was not a reasonable explanation for the failure to file an answer. (MIke Frisch)

December 20, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 19, 2013

Penny Wise, Pound Foolish

An attorney who had practiced while his license was administrately revoked for failure to pay his annual client protection fund fees was suspended for one year by the New Jersey Supreme Court.

The attorney was admitted in New Jersey in 1991 and worked in the Cherry Hill (N.J.) office of a Philadelphia (Pa.) law firm. While he initially did not need a New Jersey license for his work, eventually he did. Unfortunately, his license was suspended (and later revoked) for failing to pay the fees from 1995 to 2005.

When he sought to activate his New Jersey license, he was required to pass the February 2008 bar examination, which he did. Unfortunately (again), he did not cure the client protection problem.

The Disciplinary Review Board noted that the attorney had appeared in nearly fifty New Jersey matters while suspended.

The problem surfaced on the cusp of a jury trial. A check of the Lawyer's Diary by the court clerk failed to show that the attorney had an active license. The attorney made misrepresentations by initially contending that it was a mistake.

The court got to the truth and refused to admit the attorney pro hac vice.

The trial did not go forward. The disciplinary process did.

Becuase the attorney's license status is "revoked," he may nor petition for reinstatement for a year and is barred from pro hac admisssion as well. (Mike Frisch)

December 19, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Ready For Private Practice

An attorney who had served as an assistant county prosecutor for sixteen years was laid off due to budget considerations. She had gone to the prosecutor position directly from law school.

She opened her own law office but struggled without the experience of private practice and a lack of mentors and oversight. She testified that private practice was "overwhelming and intimidating..."

Disciplinary problems ensued.

The Ohio Supreme Court imposed a stayed suspension of two years with conditions that are designed to help prevent future misconduct. (Mike Frisch)

December 19, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspended But No Written Statement Required

An attorney who had mishandled two ciminal defense matters was suspended for five months by the Wisconsin Supreme Court.

The attorney had a record of prior discipline

Attorney C. was admitted to the practice of law in Wisconsin in 1987 and practices in Appleton.  In 1992 he received a private reprimand for failing to hold funds in trust in which both he and his former law firm claimed an interest.  In 1997 he received a private reprimand for performing work for a client after his services were terminated and for misrepresenting that he had filed a motion on behalf of the client.  In 1999 he received a public reprimand for neglect of a matter, failing to communicate with a client, and failing to return a retainer. 

In 2002 Attorney C.'s license was suspended for one year for eight counts of professional misconduct, four of which related to trust account and fee matters, and the other four involving failure to diligently pursue a client's claim, failure to keep a client reasonably informed about the status of a matter, failure to disclose to and cooperate with the Board of Attorneys Professional Responsibility (the predecessor to the Office of Lawyer Regulation (OLR)), and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation...While suspended, Attorney C. consented to the issuance of a public reprimand for pre-suspension conduct involving loaning funds to a personal injury client in conjunction with pending litigation...

The referee said given the number of violations proven and Attorney C.'s disciplinary history, the sanction suggested by Attorney C. was inappropriate and unduly lenient.  The referee concluded that a five-month suspension was appropriate.  In reaching this conclusion, the referee noted that the OLR failed to meet its burden of proof as to three of the ten counts alleged in its complaint.  The referee found no proof of actual harm resulting from Attorney C.'s misconduct.  The referee noted that both T.R. and J.H. were convicted after trials.  T.R.'s convictions were appealed.  Although Attorney C. failed to properly initiate the appeal process in one case, failed to obtain a written conflict waiver, and misrepresented certain information to T.R., the referee pointed out that the court of appeals allowed both appeals to go forward.  Thus, the referee reasoned Attorney C.'s misconduct caused the potential for harm to T.R. in the appellate process as opposed to actual harm.

The court rejected one proposal

We choose not to follow the referee's recommendation that Attorney C. be required to file a written statement that he has read, understands, and agrees to be bound by and obey the court's rules concerning professional conduct for attorneys and the rules governing disciplinary proceedings.  As noted in the Preamble to Wisconsin Rules of Professional Conduct for Attorneys, "Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings."  SCR Chapter 20 Preamble, [16]; see also id., [7] ("A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.")  All lawyers who practice law in Wisconsin are bound by the rules of professional conduct for attorneys and are presumed to know the rules and follow them.  Requiring an attorney to file a written statement averring that he or she understands and agrees to be bound by the rules is redundant and unnecessary.

(Mike Frisch)

December 19, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Peter Madoff Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred Peter Madoff as a result of his criminal conviction:

The respondent admitted that he conspired with others to commit several violations of the law, including attempts to interfere with the administration of internal revenue laws, falsifying books and records of an investment adviser, making false filings with the SEC, and mail fraud and securities fraud. Moreover, the respondent admitted that he conspired with others to prevent the IRS from collecting proper tax revenue—to his and his family's benefit—in three different ways. Specifically, the respondent received benefits from the company by which he was employed, Bernard L. Madoff Investment Securities (hereinafter BLMIS), which he failed to report as income on his tax returns. In addition, the respondent falsely placed his wife on the BLMIS payroll, resulting in her receipt of untaxed 401(k) contributions to which she was not entitled. The respondent admitted that, in 2005, 2007, and 2008, he received gifts from his brother, Bernard Madoff, the principal of BLMIS, which were used to provide the respondent's children with substantial sums of money. The respondent, although not expecting to be repaid by his children, had them execute promissory notes to avoid paying gift taxes. Additionally, the respondent's brother provided him with gifts, which were documented as loans so as to avoid paying gift taxes. The respondent further admitted that,  between 2006 and 2008, he knowingly signed and approved false compliance documentation in connection with BLMIS. The respondent admitted that, at the time he made these statements, he knew that they were false. The respondent also admitted that he conspired with others to falsify employment and payroll records of BLMIS.

Disbarment was automatic because the federal offense has a state felony equivalent. (Mike Frisch)

December 18, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)