March 22, 2013
The Louisiana Supreme Court has imposed a six-month suspension with all but 30 days stayed and probation in a case involving domestic violence.
The attorney came to his ex-wife's home to pick up his two daughters. The younger daughter did not wish to go with him. An assault took place against the ex-wife when the attorney pushed his way into her home.
The attorney was convicted but the court had declined to impose an interim suspension as a result. The conviction was later set aside.
The bar complaint was filed by the ex-wife's boyfriend, a Louisiana State trooper. The attorney responded that the complaint was "frivolous, and nothing more than an ex-wife's boyfriend whining and complaining."
Justice Victory dissented and would impose a harsher sanction. (Mike Frisch)
Court Rejects Charges Relating To Reimbursement Of ABA Expenses
The Wisconsin Supreme Court approved the dismissal of ethics charges that had alleged that an attorney was dishonest in seeking reimbursement for expenses from the American Bar Association:
Attorney P. was a longstanding active member of the ABA, serving on numerous committees and holding numerous office positions. He was a member of the House of Delegates, was past-Chair of the Family Law Section, was Chair of the Individual Rights and Responsibilities Section, and also served as budget officer of the Senior Lawyers Division. Attorney P. frequently attended ABA section meetings and ABA House of Delegates meetings and often submitted requests for financial reimbursement to different ABA sections.
The OLR's complaint alleged that Attorney P. personally submitted three claims for expense reimbursement following the 2010 ABA midyear meeting in Orlando, Florida, that included separate requests for reimbursement of the same expenses. In total, Attorney P. sought reimbursement of $2,371.50 from the ABA.
Attorney P. then received a letter from the ABA advising him he had sent "compound" (duplicate) reimbursement requests. The ABA then conducted an audit of Attorney P.'s ABA reimbursement requests for the years 2007, 2008, and 2009, which revealed that Attorney P. had submitted duplicate requests for expense reimbursement to various ABA entities for those years. The total overpayment by the ABA to Attorney P. for these years was $1,155.80.
The court noted that the ABA's reimbursement policies were confusing, that the attorney had a reputation for honesty, no prior discipline and that he made restitution when the matter was brought to his attention.
The matter was pursued by a Tennessee attorney after the issues were resolved to the ABA's satisfaction.
The referee found:
[W]atching [Tennessee attorney] B. testify and considering the number of people within the ABA who now were aware of this matter; considering B.'s rush to judgment that P. was guilty of dishonesty from the very outset; considering B.'s obsession that P. should self-report this to OLR despite advice from others; considering that phone conversations with his so-called "friend" were silently being listened to by a notekeeper or ABA staff; this referee is reminded of the old adage that with friends like this, who needs enemies.The OLR had not appealed the dismissal recommendation. (MIke Frisch)
Kentucky Bar Discipline
The Kentucky Supreme Court has suspended an attorney for 180 days, with 90 days stayed and probation, for two counts of misconduct.
One instance involved a misdemeanor conviction that arose from an argument that the attorney had with his girlfriend, now his wife. After consuming 12-18 beers and arguing with the then girlfriend, she "ended up on the hood of the car as he drove away."
The other misconduct involved a false statement that he was not the subject of a disciplinary investigation in attempting to resign from the Kentucky Bar.
In an unrelated matter, an attorney who converted a significant portion of $200,000 in settlement proceeds was permanently disbarred.
When the client complained to the Bar several years later, the attorney gave her two $5,000 checks and instructed her to "get the Bar Association off his ass." (Mike Frisch)
March 21, 2013
Van Bolt Announces Retirement
One of the most veteran disciplinary officials in the Nation has announced his retirement.
John Van Bolt, who has served in the Michigan disciplinary system since 1980 (i.e. over thirty years) will retire from his position as Executive Director of the Attorney Discipline Board.
The above link provides information to interested applicants for the position.
I have worked closely with John when I was in the District of Columbia bar system. He is an outstanding person and lawyer.
We wish him well. (Mike Frisch)
The Wisconsin Supreme Court has imposed a public reprimand of an attorney who originally charged with fourteen counts alleging improper sexual relations with four clients over a sixteen year period.
One divorce client's allegations resulted in eight counts of misconduct. The attorney had "quickly commenced a relationship [with the client] and eventually they lived together for several years. Their relationship ended, acrimoniously, in 2005."
The referee concluded that the sexual relations charges concerning that client should be dismissed "as exceeding the permissible statute of limitations..." but found that the attorney made false and misleading statements during the bar investigation.
The referee found similar charges by other clients were not proven.
The court found the two violations as desevring of a public reprimand because "without minimizing the seriousness of [the violations], it was far less serious and of a significantly different nature than originally alleged."
As to costs:
As the litigation proceeded, one witness changed her story and conveyed exculpatory evidence to the OLR's retained counsel that had not been disclosed to the OLR during its investigation. The OLR promptly disclosed these developments to respondent's counsel resulting in the dismissal of six of the 14 counts. Two counts were dismissed at trial when one of the grievants did not appear in person and the referee concluded telephonic testimony should not be permitted. Under these rather extraordinary circumstances, we agree that a reduction in costs is warranted in part because of the disparity between the allegations and recommended discipline in the complaint and the ultimate conclusions of this court.
Chief Justice Abrahamson and Justice Gableman did not participate. (Mike Frisch)
March 20, 2013
Avery on Liberals, Conservatives, and the Law
My colleague, Michael Avery, along with co-author Danielle McLaughlin, has published The Federalist Society: How Conservatives Took the Law Back from Liberals (Vanderbilt University Press). Here are some of the endorsements:
"Much of what The Federalist Society covers will be familiar to readers who closely follow law or politics, but even those readers will find value in its straightforward mix of history, case studies, and legal arguments. For others, it serves as an introduction to a long-term story that has slowly and quietly--but dramatically--changed the American legal system." --Foreword
"Fascinating, well-written and hard-hitting piece of writing underscoring the importance of the federal judiciary in our democracy. The politicization of the courts is a topic more relevant than ever in these partisan times, and Avery and McLaughlin's concise, incisive style does it justice." --Nan Aron, President and Founder, Alliance for Justice
"Michael Avery and Danielle McLaughlin have written a compelling book about how the Federalist Society came to prominence, its tremendous influence in Republican presidential administrations especially in the selection of judges, and its conservative ideology on major issues of constitutional law. It is a story of how ideas, money, and careful planning came together to change the legal landscape. This well-written book is a must read for all who want to understand the conservative movement in law, its views and those advancing them." --Erwin Chemerinsky, Dean and Distinguished Professor, University of California, Irvine School of Law
"A compelling intellectual history of the rise of the powerful Federalist Society, this is a thoughtful recounting of all the ways in which the group has impacted and influenced legal doctrine, and a roadmap of what's to come should their ascendancy continue. Anyone who cares about the courts or the law will find The Federalist Society a stark reminder of the power of abstract ideas to effect real and lasting change for decades." --Dahlia Lithwick, Senior Editor, Slate.com[Jeff Lipshaw]
One Year Actual Suspension For 38 Violations
The web page of the Ohio Supreme Court reports:
The Ohio Supreme Court today suspended a Painesville attorney for two years for 38 violations of attorney professional conduct rules – including mishandling client funds – that harmed eight clients.
As a result of the 4-3 per curiam opinion, Leo J. Talikka will avoid the second year of suspension if he commits no further misconduct, pays interest on restitution he made to three clients, and serves one year of monitored probation upon reinstatement.
The majority consisted of Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill.
In her 30-page dissent, Chief Justice Maureen O’Connor wrote that the majority’s decision “is wholly inadequate when a thorough review of the record is made.” Justices Judith Ann Lanzinger and Judith L. French joined the dissent.
Talikka entered into joint stipulations with the Office of Disciplinary Counsel admitting that he comingled his own funds with client funds on deposit in his law office trust account, failed to maintain accurate records or perform regular reconciliations to account for funds he held for different clients, neglected entrusted client legal matters, engaged in conduct prejudicial to the administration of justice, and on multiple occasions made use of funds he held in trust for one client to make disbursements to or on behalf of another client.
Although a three-member hearing panel of the Board of Commissioners on Grievances & Discipline approved the joint recommendation of Talikka and the disciplinary counsel that he receive a two-year license suspension with the second year stayed on conditions, the full disciplinary board overruled that agreement and recommended that the court impose an indefinite license suspension as the appropriate sanction for his misconduct.
In imposing the lesser sanction, the Supreme Court’s majority opinion notes “that the sanction recommended by the parties and the panel is adequate to protect the public from future harm.” The majority also pointed to several mitigating factors to accept the lesser sanction, including: no prior disciplinary record over his 40 years of practice, serious health problems during the misconduct, voluntary participation in a psychological evaluation, and letters from five judges vouching for Talikka’s character.
As an aggravating factor the majority further noted that the parties stipulated and the board found that Talikka had failed to make restitution to the affected clients. But during oral arguments it was learned that Talikka made restitution following the board’s issuance of its report.
Chief Justice O’Connor wrote that Talikka still should receive a more severe sanction.
“Given the nature of Talikka’s misconduct, which affected several vulnerable victims, and his failures to refund an unearned portion of his clients’ retainers when they terminated his representation, to safeguard $10,000 belonging to a client in his client trust account, and to promptly distribute all of the funds that his clients were entitled to receive, the board’s recommendation of an indefinite suspension properly reflects our obligation to protect the public,” Chief Justice O’Connor wrote.
Chief Justice O’Connor included a review of the misconduct, which was omitted from the majority opinion because the parties stipulated to the facts and misconduct.
“But a review of the misconduct is essential and I believe will underscore the inadequacy of the majority’s decision,” she wrote. “Indeed, given the significant number of violations and the deleterious effect Talikka’s misconduct caused to eight vulnerable clients, a more severe sanction than that imposed by the majority is warranted.”
After listing the nature of the misconduct, Chief Justice O’Connor wrote: “Given the scope and severity of Talikka’s misconduct, the majority’s sanction improperly inflates the mitigating factors in this case while devaluing the aggravating factors, including the breadth of harm to vulnerable victims.”
Chief Justice O’Connor wrote that she would have made reinstatement contingent upon Talikka paying his clients interest and compliance with an Ohio Lawyers Assistance Program contract.
“Those conditions are not excessive given the nature and scope of the misconduct here and can only help Talikka regain proper control over his practice while protecting the public from any additional harm,” she wrote. “It is baffling that despite the loss of tens of thousands of dollars belonging to his clients, repeated neglect of clients’ cases, and repeated incidents showing disrespect to clients and the oath Talikka took as an attorney, the majority fails to impose them in this case.”
The opinion is linked here. (MIke Frisch)
Bankruptcy Misconduct In Cleveland Heights
From the web page of the Ohio Supreme Court:
A Cleveland Heights bankruptcy attorney will not be able to practice law for six months after a unanimous disciplinary ruling today by the Ohio Supreme Court.
The per curiam opinion agreed with findings of the Board of Commissioners on Grievances and Discipline that [the attorney] violated several sections of attorney professional conduct rules.
That conduct included failing to comply with bankruptcy court disgorgement orders, establishing a business arrangement with an attorney with no bankruptcy experience, using that attorney’s electronic-filing privileges and electronic signature without authorization, permitting her non-lawyer staff to complete documents and forms and file them without any attorney supervision, and failing to pay daily sanctions after being found in contempt.
The Supreme Court imposed a one-year suspension but stayed six months of it “on the conditions that she (1) commit no further misconduct, (2) complete six hours of CLE in law-office management within 90 days of the date of this order that shall not apply to the general CLE requirements of Gov.Bar R. X, and (3) remit or resolve all fines and costs assessed by the bankruptcy court within 90 days of the date of this order.”
Before seeking reinstatement to the practice of law, the Supreme Court also required [the attorney] to submit evidence that she has complied with CLE requirements imposed by a 2007 order of the bankruptcy court.
The opinion is linked here. (Mike Frisch)
Law and Justice from Leading Voices in the Academy and Public ServiceA little off-topic, perhaps, but here's a shout out to the Legal History Blog and editor Dan Ernst for today's generous post on my Quid Pro publishing project. While Dan notes several books there that were just released -- such as reprinting Harry Scheiber's The Wilson Administration and Civil Rights -- the book most fitting our own blog is ASU's Marjorie Zatz, Marie Provine and James Walsh's collection, Law and the Quest for Justice. Chapters are written by such accomplished people as Charles Ogletree, Erwin Chemerinsky, Lani Guinier, Judith Resnik, Jack Greenberg, Anthony Lewis, and Robert Reich. Both of these also have ebook editions, such as Kindle. And not at all on-topic, but a sentimental favorite, is Lee Scheingold's One Silken Thread: Poetry's Presence in Grief. [Alan Childress]
Lisa Dolak on Civil Litigation Failure and Ethics Lapses, Especially in IP Cases
Recently posted on SSRN is an article by Syracuse's Lisa Dolak called Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout. Its abstract is:
Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorney fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorney fees. And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.
Where to draw the line can be a challenging question. And the stakes are high. Courts have the power to impose a wide variety of sanctions on parties and their counsel. The lawyers involved risk injury to their reputations and even, potentially, bar discipline. Following an overview of the key sanctions regimes available to the federal courts, this paper draws on some recent IP decisions examining litigation conduct to illustrate the range of conduct with which courts must contend and the application of various sanctions frameworks.
March 20, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
March 19, 2013
The New York Appellate Division for the Fourth Judicial Department has imposed a public censure for a misdemeanor criminal conviction.
Auburnpub.com had this report:
Two Camillus business owners are facing felony charges after state police say they falsified documents in a Brutus court to clear a third man of minor traffic infractions.
Dana F. Grillo, 57, of Windcrest Drive, Camillus, and Alex Bakal, 54, of Thompson Road, Syracuse, were arrested last month and charged with three counts of first-degree offering a false instrument for filing, a class E felony.
According to Sgt. Martin Zubrzycki, a spokesperson for the East Syracuse Troop T New York State Police barracks, the investigation of the two began when Brutus Town Court Judge Robert Hook reported discrepancies in the paperwork for three traffic summons submitted to the court.
Zubrzycki said Grillo, a Camillus attorney specializing in traffic tickets and DUI litigation, allegedly conspired with Bakal, owner of A & R Auto Sales, to falsely report that infractions had been corrected for one of her clients, who was not identified by police.
Police said the correctable offense tickets were issued to Grillo’s client over the course of a few months, and would have been dismissed if the problem had been repaired within a specified time period.
When time expired the unnamed client hired Grillo, who said she would satisfy the offenses in court, Zubrzycki said.
She allegedly worked with Bakal to report to the court that the infractions had been fixed in the service center operating out of his dealership in an attempt to have the tickets dismissed.
Zubrzycki said the client was not charged in the matter because he did not know of the plans to falsify the repair logs and he fully cooperated with the state police during their investigation.
If convicted, Grillo could lose her license to practice law and Bakal could be disallowed from conducting state vehicle inspections. Both could also be subject to jail time and fines as allowed by law.
Zubrzycki said that police would be satisfied with the penalties and do not plan to investigate the two’s past actions for other falsified documents.
Over A Motorcycle
The New Mexico Supreme Court has suspended a municipal judge without pay for 90 days.
The Las Cruces Sun-News described the violations:
An Espanola municipal judge has been suspended for 90 days without pay and must reimburse the state for an investigation of his conduct.
The New Mexico Supreme Court made the decision Wednesday to discipline Judge Stephen Martinez.
The Santa Fe New Mexican (http://bit.ly/LtGsKK ) reports that Salazar had ordered a towing company to return a motorcycle that was seized in a criminal case in another court. The motorcycle belonged to an acquaintance and son of a member of Salazar's church.
Salazar told the judicial panel that he would take responsibility for his actions.
The high court ordered Salazar to reimburse the towing company owners the $8,500 they spent to get his order overturned. Salazar also cannot accept $7,700 in public funds that city councilors provided for legal bills in the case.
The judge, who was on probation for earlier misconduct, also engaged in ex parte communications concerning the motorcycle. (mike Frisch)
Censured And Suspended
The New Mexico Supreme Court imposed a suspension and public censure of an attorney who made a series of knowing misrepresentation in a legal malpractice suit that he brought against the client's former attorney.
Among the misrepresentations was a statement that there was a pending disciplinary complaint against the defendant.
The court found that the above assertion violated the ethical rule that prohibits the use of means that "have no substantial purpose other than to embarrass, delay or burden a third person." Further, the attorney was incompetent in the representation.
There was a second disciplinary case involving the representation of a defendant charged with sexual misconduct involving his minor neice. The attorney refused to prepare after receiving a flat fee and made false statements in a motion to withdraw, claiming that the attorney-client relationship had broken down.
The attorney also had a record of prior discipline. (MIke Frisch)
From Big Law To Big House
The New York Appellate Division for the First Judicial Department has disbarred an attorney who was involved in a multi - million dollar theft of client funds.
Am Law Daily had this report on the criminal charges.
From the New York Daily News in January 2013:
As a lawyer at the power firm Crowell and Moring, between February 2007 and September 2011, Arntsen handled real estate transactions for Regal Real Estate, a management company with commercial and residential properties in Manhattan.
Beginning in April 2010, Arntsen began moving large amounts of cash from Regal's escrow accounts, which included cash from real estate sales, into his own personal bank accounts, totaling more than seven million dollars, prosecutors allege.
In September 2011, he vanished, later surfacing in Hong Kong, where he was arrested.
The attorney pleaded guilty to grand larceny and other charges. He was sentenced to 4 -12 years in prison. (Mike Frisch)
Practice Pointer For Rule 8.1
The Louisiana Attorney Disciplinary Board has recommended a suspension of three year, with all but a year and a day stayed, for an attorney's multiple ethhics violations in several matters.
One finding was a violation of Rule 8.1 (among other things, candor in bar admission) because the attorney had failed to disclose debts in his 2004 bar application. The matter went undetected at the time of admission but came to light during the bar's investigation.
Practice pointer: There is generally no statute of limitations in bar discipline matters. A concealment in the distant past can still bite whenever it is discovered. (Mike Frisch)
Experienced In Law But Not In Running Law Firm
The Ohio Supreme Court has imposed a fully-stayed one year suspension of an attorney who had overdrawn his client trust account and used the account for personal and business expenses.
The attorney explained that the money was from his wife and not client funds.
He was admitted in 1969 but:
He stated that for most of his legal career, he worked for a large law firm and had not been responsible for conducting the firm's banking, and he did not receive training regarding proper client-trust-account management until 2012. [He] now understands that his handling of his client trust account was inappropriate and he sincerely apologized for his misconduct.
He had failed to respond initially to the bar's investigation because he "froze."
The attorney had significant mitigation relating to "major depression occasioned by a series of personal tragedies."
He must cooperate with the bar's treatment program. (Mike Frisch)
March 18, 2013
Reinstatement Recommendation Would Require Disbarred Attorney To Pass Bar Exam
A Louisiana Hearing Committee has recommended the reinstatement of an attorney who was disbarred in 1995.
The petitioner was convicted on federal charges that arose as a result of his cocaine addiction. He has been drug free for over 20 years.
One potential stumbling block: the committee proposes that he be required to take and pass the bar examination. (Mike Frisch)
Malpractice Claims Not Per Se Unassignable
The Georgia Supreme Court has agreed with the Court of Appeals and held that "legal malpractice claims are not per se unassignable."
The attorney closed a mortgage-refinance in which the lender paid off earlier mortgages on the secured property. The title insurance company issued title insurance, the attorney had the funds wired into a specified escrow account but the funds were withdrawn by a non-lawyer.
The title insurer paid the earlier mortgages and then sued the attorney's firm and others.
The court held that the malpractice claim for failure to pay the outstanding loans
...alleges a purely pecuniary injury and does not allege a "personal tort" making it assignable under [Georgia law], and the act of assignment raises neither an issue of professional responsibility nor an issue of illegality. Since we are not presented with facts that call into question the regulation of the conduct of attorneys or the control and supervision of the practice of law, we decline to positb and answer hypothetical questions.
Affirmed. (Mike Frisch)
Internet Review Response Violated Duty Of Confidentiality
The Georgia Supreme Court has rejected a petition for voluntary for an attorney's admitted violation of the duty of confidentiality.
After being discharged by a client, the attorney posted personal and confidential information about the former client on the Internet.
The post was in response to a negative review about the attorney posted on a consumer web site.
The court recognized mitigating factors but found that there was insufficient information about the nature of the misconduct to impose the review panel reprimand sought in the petition.
The practice point: It's OK to get mad at a former client but one should avoid the impulse to get even. (Mike Frisch)