January 12, 2013
Confidentiality Issues When Former Client Claims Ineffective Assistance
A recently issued opinion of the District of Columbia Bar's Legal Ethics Committee deals with the issue of confidentiality when a former client claims ineffective assistance of counsel:
When a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel (“IAC”), D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client’s specific allegations about the lawyer’s representation. Where appropriate, the lawyer should take steps, such as seeking a judicial protective order or entering into an agreement with the prosecutor, to limit the use of such disclosures to the IAC proceeding.
The committee's conclusion:
D.C. Rule 1.6(e)(3) permits a defense lawyer whose conduct has been placed in issue by a former client’s ineffective assistance of counsel claim to make, without judicial approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance. Even so, a lawyer should reflect before making disclosures of protected information to prosecutors, courts, or others. A lawyer’s confidentiality obligations to her former client are broader than the attorney-client privilege. Although the former client’s claim likely waives the evidentiary privilege, that alone does not eliminate the broader confidentiality obligation owed under Rule 1.6. Nor does the limited “self-defense” exception to confidentiality in Rule 1.6(e)(3) open the door to unlimited disclosures to prosecutors, courts or others of protected information. The rule allows a lawyer to disclose protected information only to the extent “reasonably necessary” to respond to “specific allegations” by the former client. Reasonableness is a fact-bound issue about which others may later disagree. Lawyers who are uncertain about the permissibility of disclosing protected information in response to an IAC claim should consider seeking independent advice or judicial approval of the disclosure.
January 11, 2013
Cautionary Tale, Teaching Tool
For professors about to begin a semester teaching professional responsibility, I have a case to recommend to give students a sense of how bar disciplinary sanctions are imposed.
The case was decided today by the Kansas Supreme Court.
The attorney had less than five years in practice. After ingesting alcohol and cocaine, she drove her car on the wrong side of the highway. There was a collision that caused damage to both vehicles. The other driver suffered minor injuries.
A criminal conviction and some jail time resulted.
The court deals with a number of issues concerning mitigating and aggravating factors.
The attorney had described her drug use as "casual," which caused the hearing panel and (on different grounds) the court to conclude that she failed to appreciate the seriousness of her misconduct. There is a discussion of whether there was sufficent apology to the injured party and remorse for the misconduct.
The court rejected delay as a mitigating factor. Further, the court rejected the attorney's request for probation in lieu of suspension because she had failed to submit a "workable, substantial, and detailed plan of probation."
The Disciplinary Administrator sought a two-year suspension. The hearing panel recommended a three-month suspension.
The court imposed two years, but stayed all but three months on probation with compliance with the bar's lawyer assistance program and other probationary conditions. (Mike Frisch)
Public Protection Be Damned
In December 2010, the Maryland Court of Appeals disbarred an attorney, rejecting the suggestion that a lesser sanction was appropriate:
The combination of Respondent's violations - in particular, abandonment of his clients, misrepresentation and the failure to cooperate with Bar Counsel's investigation - convinces us that Respondent is unfit to practice law in Maryland and disbarment is the appropriate sanction.
The attorney is also admitted in the District of Columbia. In considering reciprocal discipline, the D.C. Court of Appeals sought the views of the Board on Professional Responsibility ("BPR").
Well, the BPR had a different view than Maryland's highest court.
In the BPR's unanimous view, not only is disbarment too harsh. They have recommended a short suspension with automatic reinstatement on probation. The case was argued before the Court of Appeals earlier this week.
I have never understood why the BPR wants to fashion an approach that encourages disbarred lawyers from Maryland and elsewhere to ply their trade in the District of Columbia.
When I was at Bar Counsel, I devoted substantial efforts (see here, here and here) to fighting this longstanding BPR impulse. It was always worth it, in my view, because it served the goal of public protection.
The BPR report can be accessed at this link. The attorney's name is David Fox.
I hope the court has a better sense of the need to protect the public from unfit attorneys than the BPR. (Mike Frisch)
From Reprimand To Disbarment
The Michigan Attorney Discipline Board has increased the sanction from a hearing panel's reprimand with conditions to disbarment.
The attorney had commingled and misappropriated over $7,000 in funds that he was holding pending distribution to the conservator of a legally impaired person. The funds were used for the attorney's general office expenses.
The sanction was appealed by the Grievance Administrator. The Board concluded that the goal of public protection required the ultimate sanction. (Mike Frisch)
January 10, 2013
Referral Fee For Thee But Not For Me
The New Jersey Supreme Court has imposed a censure of an attorney who paid referral fees to other attorneys in 131 workers' compensation cases.
The "forwarding" fees consisted of a one-third share of the attorney fee awards in the cases. The payment did not reflect or compensate work done by the referring attorney.
The misconduct was discovered during a random audit by the Office of Attorney Ethics.
The Disciplinary Review Board noted that the attorney had one prior brush with the disciplinary system in over thirty years of practice. The Board also noted that the attorney was unaware that such payments were unethical but found his ignorance did not excuse the misconduct.
The Board distinguished as more serious disciplinary cases where referral fees were paid to non-lawyers.
New Jersey has Rule 1:39-6(d), which permits certified specialists to pay referral fees to other attorneys but prohibits the practice for every other non-certified attorney.
Does anyone know how and why New Jersey adopted the rule that creates this distinction?
I can't say it makes much sense to me. (Mike Frisch)
Part Of An Attorney's Continuing Education
The Tennessee Supreme Court ordered a one-year suspension of a Nashville attorney who had used his trust account as a personal account and caused several overdrafts, failed to perform paid-for legal services and
...submitted false affidavits to the Commission on Legal Education and Specialization claiming to have participated in legal training he never attended.
He must also pay restitution and undergo an assessment by the lawyer assistance program as conditions of reinstatement. (Mike Frisch)
January 9, 2013
Not Because Of Drinking
An attorney who misappropriated entrusted funds and engaged in other misconduct was suspended for two years by the New York Appellate Division for the Second Judicial Department.
The court on sanction:
In determining an appropriate measure of discipline to impose, we note that the respondent is married, with five young children. While he takes full responsibility for his escrow violations, the respondent avers that all of the clients involved herein have received the money to which they were entitled. He asserts, further, that his excessive drinking during the time in question led him to neglect his business, and impacted upon his decision making. Moreover, his lack of experience administrating an office and, more specifically, an escrow account, contributed to his inattention to the operation of his office. However, the respondent's forensic psychologist offered only generalized testimony concerning the impact of alcohol abuse on "cognition" and "decision making"; he did not meet with or treat the respondent during the relevant period. As the Special Referee ultimately found, "the testimony preponderates in favor of the conclusion that [the] respondent's inattention to his escrow accounts and the resultant deficiencies were not attributable to a drinking problem." We have also considered the respondent's prior disciplinary history, including his one-year suspension by the First Department in 1997, as well as the two Letters of Caution and one Admonition issued to him by the Grievance Committee for the Tenth Judicial District.
January 8, 2013
Document Review Not Unethical
A single justice of the Massachusetts Supreme Judicial Court agreed with the Board of Bar Overseers that a former associate attorney of a major (and unnamed) Boston law firm violated no ethics rule in searching the public section of the firm's document management system (called DeskSite) for evidence to support her claims of sex discrimination and retaliatory discharge against the firm.
The associate had already filed a complaint with the Commission Against Discrimination but was still employed at the firm when the document review took place.
The retaliation claim came after she was terminated.
Justice Spina noted that the conduct was not criminal, that the attorney was permitted and expected to be on the system and that she had acted openly with knowledge that her activities were monitored by the law firm.
...the Respondent here was given full access to the public space of DeskSite, including any documents the employer may have left there. That the Respondent viewed the documents and found non-privileged, non-confidential information to support her claims may have been frustrating to her employer, but it does not make her an unethical attorney.
A hearing committee had found misconduct and recommended a public reprimand.
The case is In the Matter of An Attorney, decided August 6, 2012. (Mike Frisch)
No Basis For Malpractice Claim
The dismissal of a legal malpractice claim against Shearman & Sterling LLP was affirmed by the New York Appellate Division for the First Judicial Department:
Plaintiff's own deposition testimony establishes that he understood that at the time he was advancing a loan to Pacific Jet, there was a superior lien on the accounts receivable, which were also being used to collateralize his loan. He knew the identity of the senior creditor and fully understood that his position would be junior when his loan was first made and would remain so, unless and until the first lien was paid off. He was, however, under a mistaken impression about the amounts owed to the senior creditors because his friend, Tim Prero, Pacific Jet's principal, misled him by significantly understating those amounts. Plaintiff's assumptions about his business risk in getting repaid were based upon false factual information about the financial health of Pacific Jet and how quickly the senior creditors would be paid off. Defendant established a prima facie case warranting dismissal of the complaint by showing that plaintiff's losses were caused by Pacific Jet's poor financial condition and plaintiff's misjudgment of risk based upon the false factual information provided to him by Prero...
Plaintiff failed to raise any factual disputes in opposition. There is no evidence that defendant was retained to review Pacific Jet's private corporate records. The undisputed evidence reveals that plaintiff alone reviewed Pacific Jet's private financial records and negotiated the material terms of the transaction. The public UCC records, which defendant searched, revealed a prior security interest, a fact known to all, but no lien amount was recorded. Although plaintiff asked defendant to "document" his first priority interest, he did not have a first priority interest at the time he advanced the loan and had no expectation of a first priority interest before the senior creditor was paid. Subordination agreements or releases from the senior creditor at the time the loan was made, therefore, were not in order. Plaintiff has not elucidated what other documents defendant could have procured or prepared that would have altered the outcome of what was in hindsight a bad business deal.
Plaintiff no longer claims that defendant could have taken actions that would have allowed him to recover the amounts owed. He currently argues that he would not have entered into the transaction had he known his friend was misleading him about the amounts owed to prior creditors. This position is different from the position he prevailed upon on the motion to dismiss. It is also contrary to his deposition testimony, when in answer to a direct question about whether he considered not making any loans because his friend had failed to show him any documentation, plaintiff could not "speak to his mindset" at the time. Plaintiff's new claim does not create an issue of fact that would defeat summary judgment...Finally, the undisputed evidence reveals that plaintiff was aware that there were risks associated with having a junior security position at the time he advanced the loan proceeds and negotiated his own remedy of enhanced interest.
Stopped Check May Start Legal Malpractice Clock
The New York Appellate Division for the First Judicial Department has held that the plaintiff in a legal malpractice case has stated a claim arising out of the defendant law firm's representation in a private placement adoption.
The plaintiff is not entitled to summary judgment due to disputed factual issues.
There is also this issue:
Issues of fact also exist as to whether plaintiffs' relationship with defendants ended on December 24, 2003, when they voided a check paid to defendants, rendering plaintiffs' legal malpractice cause of action, commenced on December 27, 2006, time-barred.
Law Firm Invoices For Representing County Are Public Records
In a matter in which a county was represented in litigation by a law firm pursuant to an insurance contract, a majority of the Wisconsin Supreme Court has held that the law firm's invoices are public records subject to disclosure:
Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices that were produced or collected during the course of the law firm's representation of the County pursuant to the liability insurance policy come under the liability insurance policy. Wisconsin Stat. § 19.36(3) therefor governs the accessibility of the invoices...
The invoices——the billings for the law firm's legal work performed as the County's defense counsel and the insurance company's retained counsel——were produced or collected in the course of the law firm's representation of the County and the insurance company under the liability insurance policy between the County and the insurance company. Because the liability insurance policy is the basis for the tripartite relationship between the County, the insurance company, and the law firm, and is the basis for an attorney-client relationship between the law firm and the County, we conclude that the invoices were produced or collected during the course of the law firm's representation of the County and the insurance company pursuant to the liability insurance policy; the liability insurance policy is a contract entered into by
the County and the insurance company. Thus, the requirements of Wis. Stat. § 19.36(3) have been met and § 19.36(3) governs the accessibility of the invoices.
There are several dissents, including this from the dissent of Justice Prosser:
The majority opinion permits Wisconsin's public records law to breach privileged communications, contrary to sound public policy and the text of the public records statute. The majority's assurance that the opinion "does not alter the rules governing confidentiality, attorney-client privilege, or lawyers' work product, or any other rules protecting against disclosure," majority op., ¶15, is unpersuasive given the opinion's analysis and its other declarations. Because I believe the opinion has serious negative ramifications for the practice of law, I respectfully dissent...
The stakes in this dispute are obvious. The Star-Times already has information on the names of the County's lawyers, the number of hours they worked, and the amount they were paid——not by the County with County tax dollars, but by the County's insurer. What the Star-Times wants are "detailed descriptions of the nature of the legal services rendered" and "the substance of [the] lawyer-client communications."
Any court that determines that these matters of substance are not present in the subject invoices must be prepared to rule that the circuit court's findings were clearly erroneous.
Deciding this case without discussing the lawyer-client privilege in relation to the limiting language of the public records law (in Wis. Stat. §§ 19.31, 19.35(1), 19.36(1), and 19.85(1)(g)) casts a dark shadow over the lawyer-client privilege and other privileges in Chapter 905.
An appellate court should reduce uncertainty, not magnify it. The likely result of this case will be to force changes in billing practice. In the future, legal invoices related to an "authority" may be sanitized so that they provide insurers and public entity clients with no information except the hours worked and the amount owed as well as an invitation to discuss the details orally.
The suit was brought the Star-Times. (Mike Rrisch)