Saturday, April 27, 2013

Reprimand With A Refund

The New Jersey Disciplinary Board has reprimanded and ordered a refund of fees paid to an attorney to handle a divorce.

The client paid the attorney a total of $4,000. Several months later, the attorney advised the client that he had suffered a nervous breakdown and could not represent her. He also said that he was "checking into a hospital, that he was expecting to lose his law license" and could not return her retainer because of his own child support obligations.

The client was unable to further contact the attorney and retained new counsel. (Mike Frisch)

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

Friday, April 26, 2013

From Black Robe To Zebra Stripes?

A judicial ethics quandry has apparently been resolved by a recent opinion of the Florida Judicial Ethics Advisory Committee.

The issue: Can a judge also serve as a college football referee?

Unfortunately, we will have to hold our breath for the answer, as the committee's web page links to an earlier, unrelated opinion on toy donations. (Mike Frisch)

April 26, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Double Secret Probation

The Vermont Supreme Court has entered an order (dated April 1 but presumably no joke) admonishing an unnamed attorney for neglect and failure to communicate with a client over a three-year period.

The attorney was also placed on probation for nine months.

If your attorney was on disciplinary probation, would you be concerned if it was a secret?

The title reference is well-known to anyone over the age of 50 or so. (Mike Frisch)

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

Not This Time

The Pennsylvania Supreme Court has denied reinstatement to a petitioner admitted to practice in 1971.

The petitioner was disbarred by consent in 1984 for misappropriation. The court granted his reinstatement petition in December 1991.

But the second time was no charm. He was suspended for five years in 2006 for "lying to an assistant distict attorney while representing a client at a hearing." Here, his attempt to secure reinstatement from that suspension was rejected.

There were several problems.

He has not accepted responsibility for his prior acts of misconduct.

More troubling was his involvement in a family business with the ironic name of License Restoration Services. The Disciplinary Board found his activities involved the practice of law in violation of the suspension order. This was fatal to the petition.

Fool me once, shame on you. Fool me twice, shame on me. (Mike Frisch)

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

Thursday, April 25, 2013

Judge Removed For 1972 Sexual Misconduct

The New York Court of Appeals has accepted the determination of the State Commission on Judicial Conduct and affirmed the removal from office of a former family court judge.

The acts that led to the sanction took place in 1972 when the judge was 25 years old. He "engaged in sexual misconduct involving a five-year-old girl."

The court:

It is troubling that the petition is based solely on conduct that occurred 40 years ago - 13 years before petitioner was elevated to the bench. Nevertheless, the misconduct alleged is grave by any standard. Further, the significant danger of fading memories is tempered somewhat under the circumstances of this particular case, where petitioner admits that conduct of this nature in fact occurred.

The judge had resigned in April 2012. (Mike Frisch)

April 25, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Firm On The Side

The Maryland Court of Appeals rejected an attorney's plea for a reprimand and disbarred him for intentionally dishonest conduct.

The attorney had set up his own law firm while employed by a title insurance company and engaged in self-dealing:

[He] authorized mulitple payments from his employer to his firm without approval from his superiors, in violation of his obligations as an employee, and assigned assrts from more than one of Old Republic's clients to his own firm for no consideration all to promote his interest in [his firm]. These multiple instances of misconduct, all aimed at the same goal of generating additional fees for his side business, constitute a pattern of misconduct.

Bar Counsel had sought disbarment. (Mike Frisch)

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

D. C. Bar Budget: License To Steal From Members?

The National Law Journal has just published an opinion piece by Gregory Smith on proposed increases in District of Columbia Bar dues:

If you are a member of the District of Columbia Bar, your dues have gone up again—so the organization can buy a building with your money.

Oh, it hasn't happened yet. The D.C. Bar's current lease doesn't even expire until 2021. But it will. The D.C. Bar is socking away more than  $500,000 a year for a building fund. And your dues were just increased so this fund can grow next year from $1.9 million to $2.4 million.

I am a new member of the D.C. Bar board of directors, and I voted against this increase. I am not one who reflexively rejects all dues increases, regardless of needs. I have occasionally voted for dues increases while leading the Bar Association of the District of Columbia and the Atlanta Bar, when it was necessary. But they should be a last resort. And that is particularly true for a mandatory bar, where most members can't leave the organization, and bar dues are basically a tax.

No such need existed here. The D.C. Bar is, in fact, currently flush with cash. Its latest financial statements, eight months into the year, showed a positive variance from operations in dues-funded programs of $1.4 million. Operating cash at the end of February was $8.7 million—$2.6 million above a year ago. The D.C. Bar board just voted to put this year's projected leftover surplus into a separate contingency reserve, even as it simultaneously voted to raise your dues.

This is not an investment in our profession. It's an investment in real estate. As noted, separate contingency funds exist to cover emergencies. This is a pure building-fund line item, with more than half a million bucks a year being socked away annually, with your money. At a time when members are facing financial insecurity, and the D.C. Bar is running a significant surplus, I did not think this could fairly be justified. Even if the D.C. Bar should consider buying a building in 2021, must it do so in cash?

I could not stop this. I noted how we could still put $70,000 (not $570,000) into this building fund, and raise dues by only $5, not $10.  But I am a new member on the D.C. Bar board, and I was outvoted. The opposing arguments were predictable: "Our budget committee approved this, so we should go along." "$10/year isn't that much." "We started this building fund a few years ago, and are merely continuing it." "We published our proposed budget in the Washington Lawyer magazine, and no one voiced objections." "This is still below the D.C. Court of Appeals' approved dues ceilings, and our dues remain below most other jurisdictions."

I don't agree. The D.C. Bar's dues are low in part because they're spread over 100,000 members, and we are not geographically dispersed. When I joined the D.C. Bar in 2001, I recall my dues being $165/year. Now they'll be $265/year. I doubt many other jurisdictions have raised dues so fast. And this extra $100 per year per member translates into an extra $10 million per year. And more importantly, it's simply wrong to tax our members another half a million, at a time when the D.C. Bar is running a significant surplus (even raising our judges' dues in the midst of sequestration), just to pad a building fund.

I couldn't change this myself, but a new D.C. Bar election is coming. Ballots will be distributed April 30, and candidate forums will be held. Consider asking folks where they stand on dues. (I'm not running, but one candidate, Dan Schumack joined me in voting against this dues increase; all other incumbent candidates running this year for re-election voted to raise dues.) And while you're at it, you may want to ask candidates about the D.C. Bar's other recent decision, to change the election rules without even notifying the membership—with that bylaw change announced only after the vote. That's right—you recently lost your right to run for D.C. Bar president by petition. You weren't even notified that you'd been disenfranchised until after the fact. The argument at the time for why a vote shouldn't at least be delayed until notice was given to the membership?  "The D.C. Bar has never notified its members in advance (even on its website) of bylaw changes that are being considered by the board." Huh?

With the nominating committee now controlling the show, perhaps it's not surprising that both of this year's D.C. Bar presidential candidates voted for this dues increase. Maybe they will reconsider their positions now, but the D.C. Bar's centralization will only continue unless D.C. Bar members speak up—either directly or at least through the votes they cast.  So pass the word along. At the present rate, the D.C. Bar may hit its dues ceilings again in just two to three years.

Mr. Smith is entirely correct in his concerns.

 I attended a bar budget meeting that was open to bar members on April 9 to raise many of the same concerns. Unfortunately, I was one of two members that attended. I also advocated for transparency in the budget details, apparently to no avail.

My previous commentary on the bar leadership selection process (mentioned in Mr. Smith's last two paragraphs) is linked here.

A modest proposal: Gregory Smith for President of the District of Columbia Bar. (Mike Frisch)

April 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Judge Resigns After Criminal Charges

The West Chester Daily Local News reports the resignation of a Pennsylvania district judge recently charged with criminal offenses:

[The judge] was charged with one count of tampering with records or identification, a first-degree misdemeanor, and one count of obstruction of administration of law or other government function, a second-degree misdemeanor. The first offense carries a maximum penalty of five years in prison and a $10,000 fine and the second a maximum of two years in prison and a $5,000 fine, although Arnold is unlikely to face either maximum penalty.

The charges brought by the state Attorney General’s Office accuse Arnold of intentionally obstructing the law by failing to properly perform her duty as an elected magisterial judge, and for concealing records pertaining to wrongdoing. Arnold last year admitted that she delayed docketing a summary harassment citation against her son, Forrest Solomon Jr., and then lying to investigators about what had happened with the citation.

Details from the Unionville Times:

According to the state’s criminal complaint, on Jan. 19, 2010, an altercation occurred at Arnold’s Downingtown home between Arnold’s son, Forrest “Forrie” C. Solomon Jr., who has a 12-year history of convictions ranging from indecent assault to drug offenses, and his half-brother, Jonathan Arnold,  both of whom lived with the judge. As a result of the dispute, Solomon was issued a summary offense citation, which was filed the following day by a state trooper in Arnold’s court, the complaint said.

The charges state that after Arnold received the citation, she returned it to the trooper. Although the citation was immediately returned to the district court, Arnold allegedly did not docket the citation and failed to follow proper procedures to transfer the matter to another district court, the complaint said.

Agents said that Arnold concealed the citation for 2 ½ months in an effort to protect her son from additional sanctions with the Chester County Probation Department, even instructing an employee to “hold on to this” because Solomon had “a probation hearing coming up and she didn’t know if this would affect it,” the complaint said.

After her son was in rehab and after questions from police about the docketing delay, Arnold, without the required knowledge or approval of Chester County President Judge James P. MacElree II, docketed the citation using her computer username and password, and then ordered an employee to transfer the citation to District Justice Mark Bruno’s court, according to the criminal complaint.  Bruno was suspended in February, accused in the Philadelphia Traffic Court ticket-fixing probe.

(Mike Frisch)

April 25, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 24, 2013

An Anonymous Complaint Leads To Suspension

An attorney who had failed to file state and federal income tax returns for a four-year period was suspended for 90 days by the South Carolina Supreme Court.

One notable fact: the matter was brought to the attention of disciplinary authorities by an anonymous compaint. (Mike Frisch)

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

Multiple Firm Practice Blessed By Ohio Ethics Opinion

From the web page of the Ohio Supreme Court:

The Ohio Supreme Court Board of Commissioners on Grievances  & Discipline no longer advises that a lawyer may not practice with more  than one firm in Ohio at the same time, according to an advisory opinion.

Finding “substantial justification for a new perspective on  practice in multiple firms” and considering “the context of current rules and  modern practice,” the board concluded in Opinion  2013-1 that practice in multiple firms can occur in compliance with the  Rules of Professional Conduct.

The board withdrew three previous advisory opinions on the  issue. The reasoning behind the update includes, among other things, the fact  that other jurisdictions have ruled that the practice is permissible, an  expanded definition of “firm,” and financial considerations for lawyers in  smaller communities who work more than one part-time job.

The opinion’s syllabus gives the following guidance.

“A lawyer who engages in simultaneous practice in multiple  firms must recognize the potential ethical issues connected with such practice.  The lawyer has to be diligent in avoiding conflicts of interest, and the  imputation of conflicts will apply across all associated ‘firms.’ The lawyer is  also required to scrupulously maintain client confidentiality and professional  independence. As part of the lawyer’s duty to refrain from false, misleading,  or nonverifiable communications about the lawyer or the lawyer’s services, the  lawyer must inform his or her clients of all multiple firm associations."

(Mike Frisch)

April 24, 2013 in Law & Business, Law Firms | Permalink | Comments (1) | TrackBack (0)

Better Late Than Never

An Ohio attorney who belatedly introduced mitigating evidence was indefinitely suspended, rather than disbarred, as a result.

The web page of the Ohio Supreme Court notes:

After [the attorney] failed to answer  the complaint filed against him with the state disciplinary board or to otherwise  cooperate  with the board’s proceedings,  the commissioners recommended that he be permanently disbarred.  [He] filed a belated motion with the court  seeking to remand  his case for further  proceedings, asserting that a previously undiagnosed psychological  condition had interfered with his capacity to  defend himself.  The court remanded the  case for the limited purpose of allowing the board to consider any mitigating  effects of the newly offered psychological evidence. 

In  today’s decision the court noted that after evaluating the proffered evidence,  the board amended its recommended sanction from disbarment to an indefinite  suspension.  The court adopted the  board’s recommendation, and specified that any future reinstatement of  [the attorney's] license will be conditioned on his submission of proof that he has  complied with a recovery contract with the Ohio Lawyers Assistance Program  (OLAP), completed psychiatric treatment, follow up care and reporting  requirements imposed by OLAP and his psychiatrist, and submitted a statement  from a qualified mental health professional that he is capable of returning to  the competent, ethical and professional practice of law.

The court's opinion is linked here. (Mike Frisch)

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

If I Had A Million Dollars...

The New York Appellate Division for the First Judicial Department reversed an order dismissing a case brought against an attorney who received a million dollar gift from his client shortly before the client died:

Defendant served as decedent's attorney on personal and corporate matters for more than 40 years and thus held a fiduciary relationship with decedent. Defendant therefore had the burden of proving by clear evidence that there was no fraud or undue influence in connection with decedent's gift of $1million, made weeks before his death at the age of 82, and deposited in a trust account held jointly by decedent and defendant, clearly for defendant's benefit.

Surrogate's Court erred in dismissing the claim of undue influence as there were conflicting inferences of both undue influence and the lack thereof. For example, the evidence showed that, from September 2009 to January 2010, as decedent's health continued to deteriorate, defendant repeatedly wrote and called decedent to request the creation of a $1 million trust account and suggested that he would suffer a financial crisis if he did not receive it, and decedent complained to plaintiff (his wife) that defendant would not stop asking him for money. While such evidence allowed for an inference of undue influence, the evidence presented by defendant suggested that decedent on occasion expressed a desire to compensate defendant for legal services defendant had performed and might perform for decedent's company after his death, by the creation of this account. Under the circumstances presented, defendant failed to overcome the presumption of undue influence and failed to eliminate any triable issue of fact warranting dismissal of the count.

Surrogate's Court further erred in concluding that decedent had the benefit of consulting with independent counsel regarding the $1 million gift. Decedent's estate planning counsel were introduced to him by defendant to advise decedent regarding his will. Counsel, who were not truly independent, further averred that they did not advise decedent regarding the $1 million gift and instead told him to contact his financial advisor should he wish to proceed. When decedent terminated the representation and obtained other independent counsel, it was solely for purposes of revising his will, and there was no evidence to suggest that he consulted with them regarding the $1 million gift. Thus, there was no meaningful consultation with independent counsel that would support a finding that decedent was not unduly influenced by defendant.

The count of constructive fraud was also improperly dismissed. Defendant, who had a substantial net worth at the time of decedent's death, nevertheless repeatedly represented that his savings were suffer a financial crisis if decedent did not give him the $1 million. While decedent was aware of the salary paid to defendant over the years as counsel to decedent's company, this alone did not amount to clear evidence to eliminate any triable issue of fact as to whether defendant had misrepresented his financial condition, and whether decedent relied upon it. (citations omitted)

(Mike Frisch)

April 24, 2013 in Clients | Permalink | Comments (0) | TrackBack (0)

Celerity Counts

An Illinois Hearing Board has recommended a six-month suspension of an attorney who engaged in an improper loan modification business with non-lawyers.

The committee explained its rationale for the sanction:

Having reviewed the...cases and given some consideration to the length of the improper business association with non-lawyers, the number of clients served, whether additional misconduct was present and mitigating circumstances, we conclude that a suspension of six months is appropriate and within the range of discipline imposed in similar cases. Respondent's conduct was serious and continued for more than eighteen months but the mitigating circumstances, and in particular the celerity with which he dissolved his company and assisted his clients, weigh in his favor. We believe a moderate suspension will serve the purposes of the disciplinary process and alert other attorneys to proceed with particular care in areas, such as loan modifications, that generate a sudden influx of clients and are fraught with potential abuse.

(Mike Frisch)

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

Tuesday, April 23, 2013

Former Beverly Hills Mayor Faces Ethics Charges

The Riverside Press Enterprize has this story on a California bar discipline matter:

Charlotte Spadaro, who as a Riverside lawyer and animal rescue activist has operated what authorities called “deplorable” animal kennels, is ineligible to practice law, owes thousands of dollars to former clients, and faces disbarment following multiple attorney misconduct convictions in State Bar Court.

It’s the latest chapter in legal issues for Spadaro, a former Beverly Hills mayor. In the past eight years she has had several clashes with Inland animal control and code enforcement officers. Spadaro has been convicted in one animal cruelty case in San Bernardino County; she faces animal cruelty charges in San Bernardino and Riverside counties.

She has pleaded not guilty in both, and has denied in the past that she is a hoarder. She says none of the State Bar actions should result in disbarment.

“I am a rescuer,” Spadaro said in a recent telephone interview.

She has insisted in the past that she is acting in the best interest of animals by keeping them out of public shelters where they may be euthanized. But authorities and former associates have said she keeps amassing dogs and cats in such numbers that they cannot be properly maintained and suffer as a result.

The State Bar complaints — most of which do not involve Spadaro’s animal rescue operations came from former clients who are often at the margins — people who went to her seeking help with bankruptcy, eviction, home-loan modification, or avoiding foreclosure.

They claim Spadaro, 71, took fees then missed filing deadlines and court appearances. She did not return the money. In one instance, the Bar Court said she and her son improperly borrowed a client’s pickup; the client later found it at a gas station in Los Angeles, damaged beyond what he could afford to repair. Spadaro “blamed everyone else, including homeless people, for the missing parts and damage,” the opinion said. The man wound up donating the truck to charity.

The various complaints involving several clients were aggregated into one case in which Spadaro was found culpable of 16 out of 19 counts. Among them were misconduct, moral turpitude, failure to perform competently, failure to communicate, and violation of client trust fund account rules.

The decision recommends an end to her 43-year legal career and for Spadaro to pay nearly $23,000 back to clients. It went before the state Supreme Court for a decision March 27. There is no deadline for a ruling.

In a second case, another animal rescuer complained she had loaned money to Spadaro to help her with shelter operations. The Bar Court concluded the transactions were illegal because the woman was a client. The court said Spadaro owed her $26,500 including $7,500 in fees, $9,000 in loans and $10,000 in investment money.

Spadaro insisted the woman was never a client, and that she refused a payment plan with Spadaro and instead took the matter to the State Bar in an effort to recover all the claimed money. Spadaro said she refused to plea-bargain the case before the Bar Court because of her dispute over the woman’s status.

After an appeal, the Bar Court Review Department said Spadaro had “preyed on” the woman’s “love of rescue animals” in obtaining the loan money. “Spadaro clearly exploited her position of trust,” the opinion said.

Action has been stayed on a third case against Spadaro, awaiting the outcome of the other two matters.

Spadaro, who served on the Beverly Hills City Council for four years and was the city’s mayor from March 1986 to March 1987, called the State Bar allegations “spurious.” During her 14-day trial before the State Bar on the case now before the Supreme Court, Spadaro invoked her Fifth Amendment right against self-incrimination, the opinion noted. She represented herself.

(Mike Frisch)

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

The Third Degree

A recent opinion of the Arkansas Judicial Ethics Advisory Committee concludes that a judge is not obligated to recuse himself in cases in which one of the parties is represented by the judge's first or third cousins.

The Code prohibits a judge from hearing cases in which a party is represented by someone within a third degree of relationship with the judge. Cousins, as defined by the Code, "are not within the third degree of relationship."

The judge still must consider whether his impartiality might reasonably be questioned, on a case-by-case basis. (Mike Frisch) 

April 23, 2013 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

It's OK To Say I'm Sorry

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio ruled  today that a health care provider’s sympathetic statements to a patient regarding  an unanticipated outcome of medical care may not be admitted as evidence of  liability in any medical malpractice   lawsuit initiated after the September 13, 2004 effective date of  legislation barring such evidence.

Applying that analysis to a  Portage County malpractice action filed in 2007, the court held that R.C. 2317.43,  Ohio’s “medical apology statute,” prevented the admission of sympathetic statements  made  by a doctor to a patient who had suffered  complications following gall bladder surgery, despite the fact that  the patient’s injury occurred and the doctor’s  statements were made in 2001, three years before the apology statute became  law.

The court’s  7-0 decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by  the Eleventh District Court of Appeals.

The case  involved a medical malpractice suit filed by Jeanette Johnson against Dr.  Randall Smith, who surgically removed Mrs. Johnson’s gall bladder in April  2001. The surgery  was scheduled to be done laparoscopically. But when Mrs. Johnson’s common bile  duct was injured during the procedure (a known surgical risk), Dr. Smith  converted to an “open procedure” to repair the duct.  After the surgery, Dr. Smith explained to  Mrs. Johnson the manner in which the injury had occurred and the manner in  which he had repaired the duct.

One month later, Mrs. Johnson returned to the  hospital because of complications resulting from the bile-duct injury. Her  treatment required that she be transferred to another hospital.  Before the transfer, she became upset and  emotional. In an effort to console her, Dr. Smith took Mrs. Johnson’s hand and  attempted to calm her by saying, “I take full responsibility for this. Everything  will be okay.”

In August 2002, Mrs. Johnson and her husband,  Harvey Johnson, filed a medical malpractice suit against Dr. Smith and the  corporation through which he conducted his practice. They voluntarily dismissed  that action in September 2006. In a new complaint filed July 26, 2007,  the Johnsons alleged that Dr. Smith had  rendered negligent medical treatment to Mrs. Johnson and that Mr. Johnson had  sustained a loss of consortium.

A jury trial was scheduled for June  2010.  Before trial, Dr. Smith submitted  a motion to prohibit the introduction of any evidence regarding the statement  of apology that he made to Mrs. Johnson before her transfer to the second  hospital. Dr. Smith asserted that his statement constituted an expression of  sympathy that could not be admitted into evidence under R.C. 2317.43.

The Johnsons submitted two responses to  Smith’s motion.  First, they argued that  the statement was not an apology or expression of sympathy, but rather an  admission of the doctor’s negligence.   Second, they argued that R.C. 2317.43 did not apply, because it was  enacted and took effect three years after the malpractice claim arose and the  statement was made. The trial court ruled that any evidence regarding the  doctor’s statement would be inadmissible at trial, concluding that witness  testimony about Smith’s words and gestures at the time he made his statement indicated  his intent to console and express sympathy for Johnson, and therefore the  statement was covered by the apology statute.

The jury returned a general verdict in favor  of Dr. Smith on the two claims asserted by the Johnsons following a trial at  which no evidence of Smith’s statement was presented. 

The Johnsons appealed, and the Eleventh  District Court of Appeals reversed the trial court’s judgment, holding that the  trial court had erred in applying R.C. 2317.43 because the General Assembly had  not expressly stated its intent that the statute should apply retroactively.  The court of appeals ordered a new trial. One judge dissented, stating that the  pivotal issue was the date on which the  suit was initiated not  the date on which a statement was made or the  plaintiff’s claim arose.

Smith sought and was granted Supreme Court  review of the Eleventh District’s ruling

In today’s unanimous decision, Justice  Lanzinger wrote: “The General Assembly, in enacting R.C. 2317.43, prohibited  the introduction of any sympathetic statements and gestures made by a  healthcare provider in any civil action ‘brought’ by an alleged victim of an  unanticipated outcome of medical care.   The effective date of the statute was September 13, 2004.”

“The  language of RC. 2317.43(A) is clear and unambiguous. By its express terms, R.C.  2317.43 applies to ‘any civil action brought’ by persons described in the  statute. This means that the statute applies to a civil lawsuit filed after the  effective date of the statute. The Johnsons argue that they ‘brought’ this  civil action when they initially filed their original complaint against Dr.  Smith in August 2002. That action, however, was voluntarily dismissed in  2006.  When an action has been  voluntarily dismissed, Ohio law treats the previously filed action as if it had  never been commenced.  ...  The action filed by the Johnsons in 2002 must  be treated as if it never existed.  The Johnsons  ‘brought’ or commenced this civil action upon the filing of their complaint on  July 26, 2007. When this action was brought by the Johnsons, R.C. 2317.43 had  been in effect for almost three years.”

“The Johnsons’ filing of this  case on July 26, 2007, meant that the statute applied. ... Because we have  determined that the statute applies, the next step is to determine whether Dr.  Smith’s statement was properly excluded.   ... (D)ecisions granting or denying a motion in  limine are reviewed under an abuse-of-discretion standard of review.  ...  For an abuse of discretion to have occurred,  the trial court must have taken action that is unreasonable, arbitrary, or  unconscionable.” 

“In this case, the trial court heard  testimony from witnesses before ruling on the motion in limine.  Based upon its observation, the court  concluded that ‘the statements and gestures and actions are covered under 2317.43.’  The court of appeals, in reviewing the decision, did not analyze under an
    abuse-of-discretion standard whether the  trial court had acted unreasonably, arbitrarily, or unconscionably in reaching  its conclusion. Thus, it was improper to reverse the trial court’s decision to  exclude Dr. Smith’s statement.  The trial  court had determined that Dr. Smith was faced with a distressed patient who was  upset and made a statement that was designed to comfort his patient.  This is precisely the type of evidence that  R.C. 2317.43 was designed to exclude as evidence of liability in a  medical-malpractice case.”

“Dr. Smith’s  statement was properly excluded pursuant to R.C. 2317.43. We therefore reverse the judgment  of the Eleventh District Court of Appeals and remand the case to the trial  court to reinstate the jury’s verdict and the trial court’s judgment.”

Justice  Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices  Sharon L. Kennedy, Judith L. French and William M. O’Neill. Justices Paul E.  Pfeifer and Terrence O’Donnell concurred in judgment only.

The court's opinion is linked here. (Mike Frisch)

April 23, 2013 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Illinois Report Shows Nearly 3/4 Of Sanctioned Attorneys Were Solos

The Illinois Attorney Grievance and Registration Commission Annual Report for 2011 is available on the ARDC web page.

The report is a treasure trove of information about complaints, investigations and sanctions broken down by age, gender, practice setting, areas of law and other factors that gives a comprehensive understanding of the workings of the Illinois disciplinary process.

One highlight: Of 165 lawyers disciplined in 2011, 120 were solo practicioners, 28 were in firms of 2 to 10 attorneys, one was in a firm of 11 to 25 attorneys, six in larger firms, four in government or judicial positions, three in-house and three "no practice."

And in a tribute to David Letterman, we have the "top ten" causes of trust account overdrafts:

1. check issued against uncollected funds (post-dated check syndrome).

2. deposited item returned.

3. failure to make timely deposit.

4. failure to account for bank fees.

5. on-line computer banking errors.

6. telephone banking errors.

7. using account for personal purposes.

8. lawyer math errors.

9. using wrong checkbook.


10. it was the bank's fault.

As I may have have mentioned before, you could not get this type of information about the D.C. system with a crowbar.

Response to question: How many Bars provide this type of information online? My guess is maybe a half dozen or so --Michigan and Maryland have reports tha I have seen.

This Illinois one linked above is notable for the depth of the information. (Mike Frisch)

April 23, 2013 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Monday, April 22, 2013

May Furloughed Attorney Defend Complaints By Furloughed Employees?

A recent opinion of the District of Columbia Bar Legal Ethics Committee is summarized below:

Can a government lawyer represent  an agency employer in defending the agency from furlough-related complaints  brought by other agency employees when the lawyer was also furloughed and is  pursuing her own complaint in which the allegations are substantially similar  to those in the complaint she is defending? Under the D.C. Rules of Professional Conduct, a lawyer has a conflict of  interest in a matter when “[t]he lawyer’s professional judgment on behalf of  the client will be or reasonably may be adversely affected by the lawyer’s  responsibilities to or interests in a third party or the lawyer’s own  financial, business, property, or personal interests.” Rule 1.7(b)(4). Such a conflict plainly exists in this  situation. However, so-called individual  interest conflicts like this one can be waived under Rule 1.7(c) if:

  1. Each  potentially affected client provides informed consent to such representation  after full disclosure of the existence and nature of the possible conflict and  the possible adverse consequences of such representation; and
  2. The  lawyer reasonably believes that the lawyer will be able to provide competent  and diligent representation to each affected client.

The only affected client here  is the agency. The agency’s informed  consent to the conflicted lawyer’s representation notwithstanding her  individual interest conflict would satisfy the requirements of the first  paragraph. But client consent alone is  not enough. Under the second paragraph,  the lawyer must also reasonably believe that she can provide competent and  diligent representation to the agency in the matter despite her personal  interest, and her belief must be objectively reasonable under the  circumstances. That may be a difficult  standard to meet when the lawyer is pursuing her own challenge to the furlough  while being asked to defend the agency against substantially similar challenges  by other affected agency employees.

The opinion was adopted this month, in response to a hypothetical raised by the "sequester."  (Mike Frisch)

April 22, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

A Pre-Existing Condition

The North Carolina State Bar has filed a complaint against a former elected district court judge.

The complaint alleges that, after his 2006 election, the judge continued his position on the board of directors of Sonic Automotive, Inc. despite a warning that he was prohibited from doing so by the Code of Judicial Conduct.

After an investigation was initiated by the Judicial Standards Commission, he allegedly made false statements to the effect that he had a pre-existing medical condition and was provided insurance by Sonic. The complaint contends that he "made the statements about the health insurance coverage for the purpose of misleading the [commission] in its investigation." had this report on earlier allegations of misuse of his daughter's trust assets. (Mike Frisch)

April 22, 2013 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Progressive Discipline In Action, Suspension After Five Warnings

The New Jersey Supreme Court has adopted the recommendation of its Disciplinary Review Board and imposed a three-month suspension of an attorney with a long history of ethics violations.

The facts set forth in the DRB report could serve as a law school exam question (not for me, if my students are reading this) on how to mishandle a client trust account.

There were all sorts of problems, including the proverbial basement flood and allowing two people (one of former senator and client) to steal from the account.

According to the DRB:

He had no safeguards in place to secure his physical office or trust account records and checks, while he was absent from the office, and failed to notice the forgeries that occurred over a six-week period. Moreover, once he discovered the theft, he failed to take timely action to replenish the stolen funds by pursuing the bank or the individuals who had stolen the funds from him...

In fashioning the proper measure of discipline in this case, we considered that respondent has received two private reprimands, an admonition, and two censures and that he continues to make the same mistakes. His books and records have been reviewed by the OAE on four occasions. Each time, the OAE found recordkeeping infractions. He did not correct all of the prior infractions, even though he informed the OAE that he intended to do so...

The attorney also practiced while suspended and failed to communicate with a client. (Mike Frisch)

April 22, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)