Friday, April 19, 2013
The California State Bar Court has recommended a a six-month suspension followed by astayed two-year suspension and probation of two years in a matter involving an attorney who "collected illegal, but not unconscionable, fees in...eight client matters."
The court rejected charges that the conduct involved moral turpitude.
The court concluded that a suspension was appropriate "[g]iven [the attorney's] multiple violations of loan modification laws and his lack of insight into his misconduct..." (Mike Frisch)
The trend toward lenient sanctions for ethical violations in New Jersey is on display in a recent censure imposed by the New Jersey Supreme Court, which approved the proposed disposition of the Disciplinary Review Board.
The DRB report has this summary of governing precedent:
Precedent requires, at a minimum, a reprimand for respondent's most serious transgressions, misrepresentations to ethics authorities and to [the client's Pennsylvania attorney] Russell. His misconduct is aggravated, however, because he squandered several opportunities to "come clean" and to tell the truth about the dismissal of the complaint [filed for a slip-and-fall plaintiff]. Yet, with each new letter, he "doubled down" on his lies until, all told, six letters failed to include crucial information, that is, that the matter had been dismissed. We, therefore, determine that a censure is the suitable sanction in this case.
The attorney made misrepresentations in the bar investigation as well.
Does anyone find it problematic that an attorney can repeatedly lie and not suffer any suspension as a consequence? (Mike Frisch)
CNO has this report of a recent Ohio ethics opinion:
Ohio lawyers can text prospective clients if they comply with applicable rules and abide by restrictions, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.
Opinion 2013-2 notes that Prof.Cond.R. 7.2, which governs lawyer advertising, allows text message advertising but “all lawyer advertising, including text message advertising, must comply with Prof.Cond.R. 7.1 and 7.3.”
The opinion’s ethical guidance examines the implications of text message advertising in light of these rules.
Under Rule 7.1, “the text message may not contain a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s service.”
The opinion cites additional requirements under Rule 7.3. The text cannot create a “real-time” interaction or involve coercion, duress, or harassment. The lawyer must state how he or she learned of the prospective client’s need for legal services. A lawyer must verify that a prospective client who’s a defendant in a civil case has been served. Texts sent within 30 days of an accident or disaster must include the “Understanding Your Rights” statement in the body of the text and not as a link, attachment, or photograph.
In addition to the requirements under the rules, the opinion also identified three practical considerations.
- “First, the text message should not create a cost to the prospective client.”
- “Second, the lawyer should be mindful of the age of the recipient of the text message.”
- “Finally, lawyers must use due diligence to ensure that any text message advertisement or solicitation complies with the applicable federal and state telemarketing laws.”
Thursday, April 18, 2013
Professors, academics, and practitioners in the area of legal ethics:
The Georgetown Journal of Legal Ethics is now accepting submissions for Volume 27, to be published in academic year 2013-2014.
Our ExpressiO submissions process is now open, so please send any article submissions our way.
As a guideline, we will likely fill up by the end of May.
Jacob Itzkowitz, Editor-in-Chief 2013-2014
An attorney who practiced law after his 2010 suspension was permanently disbarred by the Ohio Supreme Court.
The court's web page notes:
...the court adopted findings by the Board of Commissioners on Grievances & Discipline that following his September 2010 suspension from practice, Fletcher failed to advise his clients, opposing counsel or the courts of that suspension, and that from approximately November 2010 through February 2012, he continued to represent two existing clients and began to represent two additional clients. Fletcher admitted that during that period he identified himself to clients as an attorney, gave them legal advice, and appeared in court and filed documents on their behalf.
Among additional findings of misconduct supporting the board’s recommended sanction of disbarment, the court noted that Fletcher gave false testimony during a 2011 deposition swearing that he had not represented any clients during that year when in fact he had appeared at a plea hearing on behalf of a client in juvenile court just days earlier.
Noting that “disbarment is the presumptive sanction for continuing to practice law while under suspension,” and that Fletcher did not file objections to the disciplinary board’s recommendation, the court found that any mitigating factors present in the case were insufficient to justify a lesser penalty.
An attorney who failed to prevent a paralegal's theft of entrusted funds was suspended for one year by the New York Appellate Division for the Second Judicial Department:
...we have considered the respondent's remorse, her general reputation as an ethical and honest attorney, and the fact that she made full restitution to the client. However, the respondent admitted that, had she reviewed her accounts in a timely fashion, she could have uncovered the fact that the subject funds had been stolen by her paralegal. The respondent abdicated her responsibility in the most fundamental fashion—she made her paralegal a signatory to her attorney escrow account, she did not supervise or review the subject transaction, and she did not keep proper records, all of which the respondent conceded was wrong.
The attorney allowed the paralegal to be an authorized signatory on the escrow account in violation of a New York ethical rule. (Mike Frisch)
The New Jersey Supreme Court accepted the recommeendation of its Disciplinary Review Board and imposed a three-year suspension of an attorney "for his egregious misconduct vis-a-vis his client, an elderly and sickly widow, who was nearly ninety years old and of questionable competence."
The Office of Attorney Ethics had sought a three-month suspension. The attorney sought a reprimand.
The attorney had arranged for the sale of the widow's home to a close friend and client on terms that sold the $1.3 million home for $50,000 in cash at closing. He also drafted a will for the widow that made him sole executor of her estate and left the residuary estate to the same friend that scored the client's home on the cheap. The will revoked the client's earlier will that had left the bulk of her estate to charity.
Apparently, the attorney's friend was the charity designated by the will he drew for the client.
According to the DRB:
Standing alone, these two situations represent egregious acts of disloyalty. However, when these acts are considered in context, respondent's behavior shocks one's conscience.
At the time respondent undertook the representation of [the widow], she was ninety years old, in very poor health, and of questionable competence. Indeed, when [his friend] asked respondent to represent [the widow], he told respondent that "they" wanted to close quickly because of her age and medical condition. Rather than raise respondent's eyebrows, [his friend's] entreaty propelled him forward.
Respondent, who should have had the upmost concern for his client, had none...
The attorney had no prior discipline.
The DRB harshly criticized counsel's arguments on behalf of the attorney. The claim that "the purported victim" suffered no harm was "stunning." Further, counsel made the "astonishing claim" that the attorney was "exonerated after a lengthy criminal trial. This is not true. The judge declared a mistrial in that matter and the prosecutor elected not to proceed."
The suspension is UFO - until further court order. Still, this one seems to cry out for disbarment. One DRB member voted to disbar. (Mike Frisch)
Wednesday, April 17, 2013
The Wisconsin Supreme Court has imposed a six-month suspension of an attorney, rejecting the Office of Lawyer Regulation's call for revocation.
The court concluded that OLR had failed to prove that the attorney engaged in misappropriation.
The disciplinary case involved the attorney's handling of two estate matters.
The more serious charges related to an estate for which the personal representative was the attorney's mother-in-law. The attorney represented her and placed estate proceeds in his escrow account.
One bequest - to the Salvation Army in the amount of $30,000 - was not paid. Rather, it was misappropriated by the attorney's wife, who was his longtime legal secretary.
The referee found that the attorney had no knowledge of the theft:
...the referee explicitly found that Attorney Goluba was not aware of the ongoing misappropriation of funds. The referee reached this finding based on record evidence and testimony of the people involved. He found that "it [was] absolutely clear who ran the details and the business of the Goluba Law Office. It was Janice Goluba. [Attorney Goluba] trusted her implicitly and gave her responsibility to handle most of the affairs of the office." The referee found and the record supports his finding that Attorney Goluba experienced health problems unrelated to this case and was not able to function as efficiently as he had in the past. As a result, Janice Goluba assumed extensive responsibility for the office including keeping Attorney Goluba's calendar, making hisappointments, drafting his letters, making his phone calls, picking up the mail, taking messages, handling all the billing and receipts, and making all of the payments. The referee stated, "In short, other than practicing law, she did everything else in the Goluba Law Office. [Attorney Goluba] trusted her implicitly and, to the best of his knowledge, she had never breached that trust."
When the Salvation Army inquired, the attorney learned of his wife's theft. He met with his mother-in-law, who ponied up the $30,000 to help her daughter. The referee and the court found that the OLR's charges relating to the attorney's encounter with his mother-in-law were not proven.
We reject the OLR's request for revocation. Attorney Goluba has, indeed, committed serious misconduct that warrants suspension of his license. However, the referee decisively rejected the OLR's assertion that Attorney Goluba had ongoing knowledge of the misappropriation of funds or that he manipulated R.L. into writing him a check to cover that misappropriation. Upon learning of the misappropriation, Attorney Goluba promptly took steps to ensure The Salvation Army was paid. His mother-in-law, R.L., has disavowed any claim that she was manipulated into paying Attorney Goluba. Accordingly, the most serious ethical charges against Attorney Goluba fail.
The court cut the costs imposed against the attorney by 50% in light of his exoneration on the most serious allegations. (Mike Frisch)
Tuesday, April 16, 2013
The Tennessee Board of Judicial Conduct has issued a public reprimand to a Rhea County judge.
In one instance, the judge "made a comment concerning [his] belief that one of the attorneys who appears in [his] court must be having a sexual relationship with another attorney who appears before [him]." He later apologized.
A second series of incidents involved a court employee. The judge used "inappropriate language" in asking about the employee's problem that led to a leave of absence: "This was done in an abrasive manner and was noted by other persons during the conversation,." (Mike Frisch)
An Illinois Hearing Board found that an attorney had engaged in misconduct worthy of a public censure but rejected allegations of ethical violations relating to the attorney's hugging and kissing a jail inmate:
We first find there was no evidence that Respondent used his status as attorney to obtain access to the interview room for the purpose of having personal physical contact with Miller. The Respondent's uncontradicted testimony was that he first met Miller at a social function, and knew both Miller and her mother. Correctional Lieutenant Candice Cain testified that Respondent expressly told her that he was Miller's attorney and also a "family friend." (Tr.139). He had previously presented Miller's mother. Respondent was informed that Miller was arrested and in the Sangamon County Jail by Miller's mother. Miller's mother asked him to visit Miller in the jail. Respondent explained that he already represented Miller in a visitation matter in another county, and he was going to talk with her about representing her in the matter for which she had been arrested. When Respondent went to the jail on November 6, 2002, he signed in as an attorney, and then talked with Miller about the matter for which she was arrested. Consequently, based upon the Respondent's reasonable and uncontradicted testimony, the allegation that he "used his status as Miller's attorney to obtain access to Miller for the purpose of having personal physical contact with her" was not proved.
It was also alleged in the Amended Complaint (par. 37), and mentioned by Administrator's counsel in closing argument (Tr. 299), that Respondent insisted the door to the room where he was meeting with Miller be closed. We find nothing suspicious or inappropriate for Respondent wanting the door to the interview room to be closed. Rather, we find it reasonable and appropriate for an attorney to try to assure that his or her conversation with a client or potential client remains confidential. It would serve little purpose for an attorney to visit a client or potential client in an interview room if the door remained open, so that anyone standing outside the doorway could overhear their conversation.
The testimony of Respondent Lieutenant Cain indicated that Respondent was not only the attorney for Miller, but that they were also friends. The day before his visit with Miller at the jail, he won his first election, having been elected to the Sangamon County Board. The behavior of Respondent and Miller in kissing, embracing, and "holding hands" as observed by then Corporal Tammy Powell could have been reasonably related to their excitement and joy of his election, rather than contact of a sexual nature. Additionally, Respondent explained that Miller was distraught by being in jail, and he put his hand over her hands to comfort her.
Powell also observed Respondent and Miller sitting face to face, a table between them, and with Miller's knees "between his legs." However, she did not indicate that their knees or legs touching. Powell also saw Respondent "rubbing her neck and shoulders." Respondent acknowledged that he gave Miller a "neck massage" after she complained of having an "ache in her neck." Additionally, there was no testimony that Respondent "grasped [Miller's] buttocks," as alleged in the Amended Complaint.
Furthermore, based upon the observations of the Respondent's behavior with Miller, Lieutenant Cain terminated the Respondent's visit, and told him "his behavior was unethical and it would not be tolerated within the facility." (Tr. 137). During closing argument, Administrator's counsel stated
that Respondent's behavior was "an incidental violation of jail policy." (Tr. 300). However, there was no evidence of what the alleged jail policy was or that any such policy was posted or otherwise made known to attorneys and other visitors. Respondent testified that he was not aware of any jail rule that prohibited all physical contact. Without any evidence as to what the jail policy, rule or regulation was regarding physical contact in November 2002, we have no basis on which to find that Respondent violated any jail policy.
We also note that there was no evidence that the Respondent's conduct constituted any security concern within the jail or that the physical contact between Respondent and Miller was other than fully consensual...
Based on the above, we find that the Administrator did not prove by clear and convincing evidence that the Respondent engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a) (5) of the Illinois Rules of Professional Conduct (1990).
The web page of the Ohio Supreme Court reports:
The Ohio Supreme Court today imposed an indefinite suspension against the law license of Columbus attorney Charles McGowan for professional misconduct arising from his felony convictions for conspiracy to commit money laundering and willful failure to report the receipt of more than $10,000 in the course of his law practice.
The court also found that McGowan, whose license has been under an interim suspension since December 2010 as a result of his felony convictions, was guilty of additional disciplinary rule violations in his handling of two client matters unrelated to the money laundering conviction, and by virtue of his failure to cooperate with the Columbus Bar Association’s investigation of his misconduct.
By a 4-3 vote, the court overruled a recommendation by the Board of Commissioners on Grievances & Discipline that McGowan receive credit against today’s license suspension for the time he has been barred from practice under his 2010 interim suspension. Citing the aggravating factors that McGowan engaged in a pattern of misconduct involving multiple offenses, initially failed to cooperate in the disciplinary process, and caused harm to vulnerable clients, the court ordered that his indefinite suspension be served from the date of today’s decision, which means the earliest date he would be eligible to apply for reinstatement is April 16, 2015.
As preconditions for any future reinstatement of his license, the court specified that McGowan must complete the remaining term of federal supervised release included in his criminal sentence, make restitution of unearned fees to the clients whose cases he mishandled, reimburse the state Clients’ Security Fund for any claims it has paid to his clients, and pay the costs of the disciplinary proceedings resulting in today’s decision.
The court’s per curiam majority opinion was joined by Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Sharon L. Kennedy and Judith L. French. Justices Paul E. Pfeifer, Terrence O’Donnell and William M. O’Neill dissented, indicating that they would grant McGowan credit toward the suspension imposed today for the time his license has been under interim suspension.
The opinion is linked here. (Mike Frisch)
Monday, April 15, 2013
The Connecticut Appellate Court affirmed judgment against a defendant attorney in a civil case involving breach of contract, fraud and unfair trade practices.
The court found that the attorney turned a simple action into a lengthy suit "raising claims that were baseless and at times all out lies. What makes this even more egregious is that [he] is an attorney admitted to practice in this state."
The court declined to review the claim that the court improperly admitted evidence relating to a disciplinary proceeding because the contention was not adequately briefed. Further, the court affirmed the award of punitive damages. (Mike Frisch)
The North Carolina State Bar has filed a complaint alleging that an attorney engaged in deposition misconduct by "repeatedly interrupt[ing] the questioning, answer[ing] the questions [opposing counsel] posed, caution[ing] his client about how to answer the questions posed by [opposing counsel], and ask[ing] questions of his client."
He also is charged with insulting opposing counsel both during and after the deposition. After the deposition ended, he allegedly made "rude and inappropriate remarks to [opposing counsel] which included sexual innuendo and commernting that she needed a boyfriend."
He further is alleged to have falsely denied that he sponsored a website that vilified the deponent.
The attorney is charged with similar deposition misconduct and false representations in another matter.
Finally, in a murder trial, it is alleged that the attorney "spoke disrespectfully to the judge at a bench conference" and "grimaced" at the judge before the jury. He was adjudicated in contempt. (Mike Frisch)
The Georgia Supreme Court has issued an opinion approving the conclusion of the State Bar Formal Advisory Opinion Board concluding that it is impermissible for attorneys employed in the circuit public defender office to represent co-defendants when a single lawyer would be prohibited from doing so.
The court found that the board's opinion was correct in light of the constitutional right to conflict-free counsel and the construction of Georgia's ethical rule concerning imputed conflicts. (Mike Frisch)