Saturday, January 5, 2013
The Lewiston-Auburn Journal reports that F. Lee Bailey's attempt to secure a Maine law license has been turned down:
Bailey, 79, passed the Maine Bar Examination in February. He had been licensed in Massachusetts and, later, in Florida. But he was disbarred in both of those states in the early 2000s following a Florida Supreme Court ruling on seven counts of attorney misconduct stemming from his handling of a case involving an accused marijuana dealer.
Bailey spent 44 days in federal prison before he was released after repaying millions of dollars worth of stock in a pharmaceutical company he had transferred from his former client's assets.
"Mr. Bailey has not met his burden of demonstrating by clear and convincing evidence that he possesses the requisite good character and fitness necessary for admission to the Maine Bar," five members of the State of Maine Board of Bar Examiners concluded in a 22-page decision in November.
Four other members of the board wrote a minority opinion in a seven-page dissent.
Hat tip to the Washington Post. (Mike Frisch)
Friday, January 4, 2013
An attorney who falsely claimed he had billed over 1,800 hours in two separate years in order to receive a bonus has been suspended for twelve months by the Wisconsin Supreme Court.
The method by which the attorney (who was his law firm's treasurer) accomplished his scheme was described by the court:
After the Firm paid Attorney S. each of the bonuses, but before the Firm mailed his bills to his clients, Attorney S. reduced, or "wrote-down," certain of his billable hours for the years for which the bonuses were paid. In early 2008 Attorney S. wrote-down 29.2 hours of time from his 2007 billings without notifying the Firm. These write-downs caused Attorney S.'s 2007 billables to drop about 25 hours below the 1,800 level. In early 2009 Attorney S. wrote-down 231.9 hours from his 2008 billings, again without notifying the Firm. These write-downs caused Attorney S.'s 2008 billables to drop below 1,600 hours.
As to sanction:
We conclude that a 12-month license suspension is sufficient to advance the objectives of lawyer discipline. This is so due to the number of mitigating factors that appear in the record. Attorney S. has no previous disciplinary history. He lost his job with the Firm. He paid $60,000 to the Firm to compensate for the bonuses to which he was not entitled and for other unspecified damages claimed by the Firm. He forfeited his interest in the Firm's profit sharing plan. As explained below, these disciplinary proceedings have been costly to Attorney S. We are persuaded that, given these particular circumstances, Attorney S. understands the seriousness with which this court views his conduct, and he will not likely repeat it.
Chief Justice Abrahamson would impose the 18-month suspension propoped by the referee. (Mike Frisch)
The Delaware Supreme Court has reversed a trial court order dismissing a slip-and-fall case because plaintiff's counsel had failed to provide the report of an expert witness.
The attorney had contended that the medical records were sufficient, notwithstanding a court order to provide a report.
The court here "readily under[stood] the trial court's frustration over counsel's cavalier attitude" and opined that plaintiff's attorney "wasted everyone's time, and should be personally sanctioned." However, the trial court was obligated to deal with the situation with methods short of outright dismissal of the case. (Mike Frisch)
Thursday, January 3, 2013
An attorney convicted of insider trading has been disbarred by the New York Appellate Division for the First Judicial Department:
...beginning in 1994 and ending in 2011 he participated in an insider trading scheme in which he stole confidential non-public information related to approximately 30 corporate mergers and acquisition transactions being handled by the law firms that employed him, and then provided details of pending transactions to a cohort who passed the information to a broker who purchased shares based on the inside information. In addition, respondent admitted at his plea allocution that he destroyed a computer and an iPhone upon learning that authorities had searched the home of one of his cohorts and that he himself was under criminal investigation. He was sentenced to 60 months' incarceration for conspiracy to commit securities fraud and 144 months for each of the remaining counts, to be served concurrently.
Business Insider had this story about the attorney's arrest. (Mike Frisch)
The Illinois Administrator has filed a two-count complaint alleging misconduct on the part of an attorney.
The first count alleges that the attorney converted funds in a wrongful death action. The complaint charges "conversion" and "breach of fiduciary duty" without reference to a disciplinary rule, in the manner recently criticized in two Review Board reports.
The charges here were filed on December 17, prior to the filing of the Review Board reports.
Count Two is somewhat unusual:
On or about June 23, 2012, Respondent crossed the border into Mexico in a car registered to a third party. Since June 23, 2012, Respondent has not communicated with his family members or office staff. Border authorities were requested by law enforcement to report any attempt by Respondent to return to the United States but as of the date the complaint was voted, have not reported any such attempt.
On or about June 23, 2012, Respondent abandoned his law practice. At no time prior to departing for Mexico did Respondent take any action to return files to his clients, to notify them of his departure, or to take reasonable steps to avoid any resultant prejudice to those clients. In addition, Respondent did not seek permission to withdraw from representation in those matters that were pending before various tribunals in which Respondent had filed his appearance.
The Kentucky Supreme Court has suspended an attorney as a result of a felony conviction.
WAVE3.com had this June 17, 2011 report:
Police are saying a Louisville attorney not only smuggled in heroin to the Bullitt County jail, but also had a car full of stolen goods.
Michael Wade, the 31-year-old attorney, landed behind bars earlier this week after Kentucky State Police say he tried to smuggle in heroin, syringes and other contraband to his inmate client and childhood friend Bryan Popplewell, who is in the Bullitt County Detention Center on burglary charges.
Investigators say Wade and Popplewell grew up together in Russell Springs, Kentucky and may have had a drug history together.
Just last month, detectives called Popplewell a serial burglar after allegedly linking him to at least 12 burglaries in Bullitt and Jefferson counties.
After the lawyer was arrested, investigators got a tip that led them to get a search warrant for Wade's car at the Bullitt County Sheriff's impound lot. Inside his 2009 Honda Civic, police say they found more drugs, syringes, a lot of gold jewelry, bullets and miscellaneous items like video tapes. Detectives say Wade admitted it all belonged to his client and friend.
"He claimed he got it from Mr. Popplewell," said Bullitt County Detective Scotty McGaha. "They were items Mr. Popplewell had taken from some of these burglaries."
Detectives say Wade told them, he had planned to turn in the stolen goods to authorities but, because he didn't he has now been charged with a second felony count, receiving stolen property.
Wade has declined an interview while in jail. He currently has no attorney, but one may be appointed for him.
Wednesday, January 2, 2013
An Illinois Hearing Board has recommended disbarment in a case involving criminal convictions.
The first incident is described in the report:
On April 5, 2004, Respondent barricaded himself in his home in Florida, with his two sons, one of whom was under the age of eighteen. After the police were summoned, Respondent fired a gun at least six times from a second-story window, nearly missing a police officer and damaging a police vehicle. During the incident, Respondent prevented his sons from leaving his home, although both eventually escaped the home unharmed.
After he went to jail
...Respondent, while incarcerated pursuant to his conviction described [above], wrote at least 13 letters to his then-wife that contained threats, attempts to exhort her, and statements intended to prevent her from testifying against him. During that time, Respondent also wrote one letter to his son in which he attempted to persuade him to prevent his then-wife from testifying against him. Respondent sent the letters to their recipients via the U.S. Postal Service...following a jury trial, Respondent was convicted of four counts of sending threatening mail, four counts of sending extortionate threatening mail, and six counts of witness tampering.
A disciplinary report from the January 2013 California Bar Journal:
[An attorney] was suspended for three years, stayed, placed on four years of probation with an actual three-year suspension and until she proves her rehabilitation and she was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. She receives credit for the period of interim suspension that began April 25, 2010. The order took effect Nov. 8, 2012.
[The attorney] drove the wrong way onto the Santa Monica freeway, hitting a car that carried four passengers in addition to the driver, who was killed. The passengers all were seriously injured. [Her] blood alcohol level was .23 percent. Four years earlier, she was convicted of misdemeanor DUI. That complaint was dismissed after she completed drug and alcohol education and counseling.
At the conclusion of a 2009 jury trial, [she] was convicted of gross vehicular manslaughter while intoxicated, driving under the influence and causing body injury with a prior DUI, and driving with a blood alcohol content of .08 percent or more with a prior. The court declared a mistrial on a murder count when the jury was deadlocked. The murder count was dismissed and Weinberg was sentenced to 16 years in prison; she has been incarcerated since Feb. 20, 2009. A writ of habeas corpus challenging the sentence is pending.
In mitigation, [the attorney] cooperated with the bar’s investigation, demonstrated extreme remorse, including paying the victims her $300,000 insurance policy limit although she acknowledged it did not provide full compensation. She also presented extensive evidence of her good character. [She] says she has not had any alcohol since the night in question.
A client who had retained an attorney to pursue claims that arose when an airplane crashed into her home while she was home watching television sued that attorney for legal malpractice.
The plane sliced through the plaintiff's chimney but no debris struck her and she suffered no physical injury.
The malpractice suit alleged that an action was not filed by the retained attorney before the statute of limitations had run. The client won a $5 million judgment at trial but a large portion of the damage award was vacated on appeal.
On further appeal, the Kentucky Supreme Court reversed and remanded for furrther proceedings.
The court made three holdings in the case.
First, it reaffirmed that the proper method of trying a legal malpractice case is the "suit within a suit" approach. Second, on an emotional distress claim, the court held that a plaintiff must "first satisfy the elements of a general negligence claim." Then, the plaintiff must prove through expert or scientific proof that "the claimed emotional injury is severe or serious." Third, the court held that the lost punitive damages in the underlying case are not recoverable against the negligent lawyer. (Mike Frisch)
A Louisiana Hearing Board has recommended dismissal of ethics charges arising out of conduct at an informal settlement conference in the accused attorney's office.
The matter involved a civil construction suit. The opposing parties and their counsel (who were all present) made an offer of settlement that the accused attorney felt was insulting.
In the course of outlining the strengths of his clients' case, he stated that to the opposing side that he would "nail you down like Pontius Pilot[sic] and the nail driving five."
There was no physical contact and the case was resolved on terms acceptable to both sides without further incident.
The hearing board concluded that the behavior was "unprofessional" but did not violate the charged disciplinary rules.(Mike Frisch)
Monday, December 31, 2012
In two reports and recommendations filed with the Illinois Supreme Court, the Review Board criticized the Administrator's use of the "breach of fiduciary duty" charge as a basis to allege an ethical violation.
in one case, the Review Board recommended dismissal of all charges against an attorney who, as executor and trustee of his father's estate, made unauthorized loans to himself. The Hearing Board had found that the conduct breached fiduciary duties and amounted to conversion.
The Review Board disagreed:
We hold that because there was no attorney-client relation alleged, the charges for "conversion" and "breach of fiduciary duty" were inappropriate in this case.
The phrase "breach of fiduciary duty" does not appear in the Rules of Professional Conduct -- and the charge is largely unknown in a disciplinary context outside of this state. Nonetheless, the Illinois Supreme Court has both expressly and implicitly approved of the use of such a charge in cases involving the attorney-client relation...The Administrator has taken that approval as license to charge "breach of fiduciary duty" with some frequency - including it in a substantial percentage of the disciplinary complaints filed each year.
"Breach of fiduciary duty" is an amorphous and generalized tort concept, potentially encompassing a wide variety of behavior...
A charge of "breach of fiduciary duty" rarely (if ever) stands alone. Typically, the charge is used in tandem with additional charges that do include at least lip service to various Rules of Professional Conduct. Where a charge of "breach of fiduciary duty" is included, as here, the proofs and analysis invariably veer towards that charge, instead of whatever the proper "companion" charge was (or may have been). This case provides a perfect illustration: the Administrator tried the case before the Hearing Board in a manner almost indistinguishable from what would be expected in a trial involving civil liability for the breach of a duty imposed by tort law - complete with expert testimony by a trusts and estates lawyer. The Hearing Board analyzed the case, as well, as if it were a trier of fact in a civil context, weighing whether the Respondent "breached" his duty.
In our view, as a matter of law, a necessary element of the charge of "breach of fiduciary duty" is the existence of an attorney-client relation. Because the Respondent's circumstances did not involve an attorney-client relation in the first instance, the "breach of fiduciary duty" charge, here, was without basis in law.
We would further strongly discourage the use of the charge of "breach of fiduciary duty" in circumstances where the underlying conduct can be otherwise charged under the Rules of Professional Conduct...
The second matter involved an attorney's serving as trustee of a charitable trust that he drafted for a client. The trust was intended to benefit a church and school. The attorney made a series of very bad investments with a person he thought was an attorney (because he used "J.D." ) but who was in fact suspended.
The Review Board rejected most of the Administrator's charges and recommended a 60-day suspension. As in the first case, the Review Board found that the absence of an attorney-client relationship was fatal to the Administrator's case.
Panel Member Anna Loftus concurred in part but dissented from the overturning of a dishonesty finding of the Hearing Board:
The majority bases its decision to overturn the Hearing Board's finding solely by accepting Respondent's statement that he did not intend to be dishonest to St. Mark's. However, the Hearing Board did not find Respondent's testimony to be credible. Simply because the Administrator did not offer any direct evidence, i.e., Respondent's admission that he intended to deceive St. Mark's, should not prevent the Hearing Board from concluding that Respondent's actions were purposefully de[ce]itful. The Hearing Board was in the best position to judge Respondent's credibility and this Board should not substitute its judgment for that of the Hearing Board.
The Supreme Court has repeatedly stated that motive and intent are rarely susceptible to direct proof and must generally be inferred from the attorney's conduct and the surrounding circumstances...Here, the Hearing Board carefully considered all of the evidence in reaching the conclusion that Respondent purposefully and deliberately hid the true source of the three payments from St. Mark's. Respondent conceded he did not simply forward Hannah's payments to Respondent to St. Mark's, although he certainly could have done so. Nor did he forward the funds he borrowed from Wells Fargo directly to St. Mark's. Instead, he took deliberate steps to deposit the funds into his client fund account, transfer the funds from there to the Sloan Trust account, and then pay the funds to St. Mark's from the Trust's account. He did not disclose the true source of the funds to St. Mark's. As found by the Hearing Board, there was no reason for Respondent to take the actions he did unless he was attempting to conceal from St. Mark's the true source of the funds.
During the time period Respondent was engaging in this conduct, St. Mark's was requesting information from Respondent regarding the health of the trust assets. Respondent knew, indeed he admitted, that the trust had insufficient liquid assets to make the expected monthly payments to St. Mark's. By making it appear to St. Mark's that the Sloan Trust account was the source of the funds, Respondent avoided serious inquiry by St. Mark's into the health of the Trust. As noted by the Hearing Board, the Court has held that omissions calculated to deceive and the "suppression of the truth and the suggestion of what is false" constitute conduct involving dishonesty, deceit, fraud or misrepresentation...
The Supreme Court's resolution of the issue of charging "breach of fiduciary duty" will have a significant impact on the disciplinary prosecutions of Illinois attorneys. (Mike Frisch)