Friday, June 14, 2013

Excessive Fees Draw Suspension

The Iowa Supreme Court has imposed suspensions of eighteen months of two attorneys for charging excessive fees during the last two decades of a thirty-year representation of a ward.

The ward was a Vietnam veteran who suffered from paranoid schizophrenia, depression and substance abuse. He had inherited 160 acres of farmland from his mother's estate.

Some of the charges were legal fees for administrative services.

Thee was also a conflict of interest in a farmland lease to another firm client.

The court rejected the proposed three-year suspension, noting that the attorneys had stepped forward to serve as conservators when no family member was willing to do so.

June 14, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Call for Papers: AALS Section on PR, for Jan. 2014 AALS Meeting in NYC

Call for Papers: AALS Section on Professional Responsibility
Subject: "The Lost Lawyer and the Lawyer Statesman Ideal: A Generation Later – The Shifting Sands of the Profession’s Identity," 2014 AALS Annual Meeting, New York, NY

The AALS Section invites papers for its 2014 Annual Meeting Program. Twenty years after Professor Anthony Kronman published his seminal and controversial book, The Lost Lawyer: Failing Ideals of the Legal Profession, the question of the role of attorneys in society is more important than ever. In Kronman’s view, early generations of American Lawyers saw the attainment of practical wisdom as their ultimate professional goal. They understood that this wisdom was a character trait “that one acquires only by becoming a person of good judgment, and not just an expert in the law.” Cultivating and exercising this trait was a professional ideal that Kronman called the “lawyer-statesman ideal.” The name stressed the ideal’s “roots in the past and the air of obsolescence “ surrounding it. The ideal described someone with great practical wisdom, exceptional persuasive powers, a devotion to the public good, forgetfulness of one’s self, sympathy for others, and excellent intellectual skills. Kronman examined the lawyer–statesman ideal in the profession’s three major branches—law schools, law firms, and the courts—and warned that the profession was “in danger of losing its soul.”

Today, tsunami-like forces of change are buffeting the legal profession. Those forces include decreasing law school applications, increasing student debt, diminishing employment prospects, contracting law school budgets, curricular reform, lawyer unemployment and layoffs, rapid technological change, shrinking judicial resources in the face of expanding dockets, increasing bureaucratization of our courts, and many Americans’ lack of access to legal assistance and justice.

The author of the paper selected for this program will present the paper, joining a distinguished panel, including Professor Kronman. Panelists will address the lawyer-statesman ideal, explore related issues and problems, and suggest solutions.

Eligibility: Only full-time faculty members of AALS member law schools are eligible to submit papers.  Foreign, visiting (without a full-time position at an AALS member law school); adjunct faculty; graduate students; fellows and non-law school faculty are not eligible to submit.  Faculty at fee-paid non-member schools are ineligible.

The paper will be selected after anonymous review by members of the Section’s 2014 Annual Meeting Program Committee. In order to facilitate anonymous review, please identify yourself and your institutional affiliation only in the cover letter accompanying your manuscript, and not in the manuscript itself. The paper along with those of the other panelists will be published by the ABA Journal of the Professional Lawyer.

Entries of 20 or more double-spaced pages in length should be submitted by August 31, 2013.  Please submit as early as possible.

Submission and Inquiries directed to:
Jack Sahl
University of Akron School of Law
150 University Ave
Akron, OH 44325

[Posted by Alan Childress]

June 14, 2013 in Conferences & Symposia | Permalink | Comments (3) | TrackBack (0)

Last Gasp To Stop F. Lee Bailey Admission Rejected

The Maine Supreme Judicial Court has rejected the motion of the Board of Bar Examiners for reconsideration of its recent order directing the admission of F. Lee Bailey.

The board had apparently sought to persuade the court to defer to its credibility determinations.

The court found that a 2005 First Circuit opinion in a matter "unrelated to F. Lee Bailey" fully supported Bailey's credibility:

the opinion...provides significant insight into Government practices in the early 1990s that apparently allowed and approved defense attorneys being paid from funds that were subject to forfeiture proceedings.

(Mike Frisch)

June 14, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Tip: Appear For Oral Argument In Your Own Disciplinary Matter

The West Virginia Supreme Court of Appeals has ordered a reprimand of an attorney for lapses in the representation of clients in connection with two appeals.

The court found a number of mitigating and aggravating factors.

It helped that the attorney had taken steps to improve his office procedures through use of a consulting service that recommended improvements in his practice.

It did not help that the attorney missed oral argument before the court due to his mis-calendering of the argument date. (Mike Frisch)

June 14, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 13, 2013

Higher Ground

The New Mexico Supreme Court has approved stipulated discipline and imposed a public censure of a magistrate judge.

The judge had sought to intervene on behalf of his stepson, who was in custody. He engaged in an ex parte contact with the responsible judge and assured the judge that his stepson was not a flight risk.

In addition to the censure, he was suspended without pay for 90 days with 60 days deferred.

Also, he must complete, at his own expense, an online course offered by the National Judicial College titled Ethics and Judges: Reaching Higher Ground. (Mike Frisch)

June 13, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

More Than An Error In Judgment

An Illinois Hearing Board has recommended a two-year suspension of an attorney who, as president and treasurer of a condominium association, used entrusted funds.

The board rejected the attorney's defenses and explanation:

We previously rejected the notion that Respondent was entitled to any of the Association funds as compensation for her services. Similarly, we reject any suggestion that her use of funds erroneously resulted from the fact the PIN number for her personal debit card was the same as the PIN number of the Association's debit card. That notion was effectively refuted, at least as to online purchases, by her admission that she had to type in the number appearing on the debit card when making the purchases. As to any of the other purchases, the sheer number of times the debit card was used belies any claim of an inadvertent mix-up of cards.

At hearing Respondent referred to her personal use of Association funds as an "error in judgment," but she fell short of admitting any outright dishonesty. We do not believe Respondent's actions were merely the result of poor judgment, as that phrase implies she may have acted without careful analysis or that she had reason, however slight, to believe her actions were correct. We saw no basis for any such assumption. On the contrary, the evidence showed a systematic pattern of using funds when they were available in the Association's account. Respondent's personal use of the Association's debit card on sixty-six occasions, coupled with evidence that she was not responsive to requests to discuss her purchases once they were discovered, indicates to us that she knew her actions were improper.

The attorney was subject to an ealier 30-day suspension.

The Administrar had sought disbarment. (Mike Frisch)

June 13, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The View

The Tennessee circuit court judge  chaged with ethics violations arising out of a visit to the home of a party in a parenting dispute has filed an answer denying any misconduct.

The answer asserts that the visit was done with the consent of the self-represented parties and was in aid of making an informed decision on the merits.

Further, the answer contends that a judge has inherent authority to conduct such a view.

Our prior coverage is linked here. (Mike Frisch)

June 13, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 12, 2013

Fine Line Trampled, Attorney Disbarred

An attorney who had "trampled" the fine line between zealous advocacy and frivolousness was disbarred by the Oklahoma Supreme Court.

The misconduct took place in litigation over a trust and was exacerbated by the failure to cooperate in the bar proceeding:

Godlove repeatedly failed to provide competent representation, failed to act with reasonable diligence, failed to act in good faith, asserted issues and claims which were frivolous, failed to make reasonable efforts to expedite litigation, was less than candid with the court when she continuously filed repeated actions regarding the same issue which had already been determined by a final order, not keeping her address current with the court and opposing counsel, and by failing to appear and prosecute motions that she had filed. Godlove knowingly disobeyed an order of the court by filing notices of lis pendens on behalf of a client who had been enjoined from such filings. Godlove also made numerous irrelevant and frivolous discovery requests. Godlove has completely ignored her obligations to respond to inquiries in this bar disciplinary proceeding. Godlove's conduct is prejudicial to the administration of justice and has caused both her client's and the trusts unnecessary expenditure of funds.

The court concluded

We have not before been presented in an attorney disciplinary proceeding with facts in which a lawyer abused the judicial system to the extent that Godlove has done here. For the extensive violations of the rules governing lawyers' conduct and for ignoring these proceedings, we find that disbarment is necessary to stop the abuse of the system hailed on it by Godlove's frivolous, multiple, duplicate filings and to end the disservice to her clients, to opposing parties, to opposing counsel, and to judges presiding over cases in which she is involved.

There is a fine line between zealous advocacy and harassing, frivolous litigation. Godlove has not only overstepped the line, she has trampled it. We have a duty to protect against the type of frivolous litigation undertaken by Godlove. When a lawyer fails to recognize the authority of a court's final order, she must answer for her actions in continuing to relitigate the same issues again and again.

(Mike Frisch)

June 12, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Filing Probate Claim Not Unauthorized Practice

A non-attorney may file a claim on behalf of a business entity in probate court without running afoul of unauthorized practice restrictions, according to an opinion issued today by the South Carolina Supreme Court.

The process for an allowance of claim merely requires the filing of a single page standard form that can be found on a court web page. The form requires an attestation that the claim is valid, timely and unpaid.

None of these activities require the professional judgment of an attorney or entail specialized legal knowledge and ability.

Bravo. (Mike Frisch)

June 12, 2013 in Current Affairs, Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)

Ethics Complaint Dismissal Affirmed

The South Carolina Supreme Court affirmed the dismissal on an action seeking declaration that Governor Nikki Haley committed ethics violations while serving as a member of the state House of Representatives.

A circuit court had dismissed the action (brought by an individual) for lack of jurisdiction. The court here agreed, concluding that the "House Ethics Committee has exclusive jurisdiction to hear complaints of ethics violations against its own mwmbers."

The House Ethics Committee entertained and dismissed the same complaints after the circuit court dismissed this case.  (Mike Frisch)

June 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 11, 2013

Bar Prosecution Prohibited

The West Virginia Supreme Court of Appeals granted as moulded a writ of prohibition brought by an attorney seeking to prevent disciplinary authorities from pursuing an ethics complaint against him.

The attorney was the Kanawha County Prosecuting Attorney at the time of an investigation into a series of "sniper" homicides. When he left and entered practice, he was retained by a client to pursue a claim for damages in the execution of a related warrant.

The defendants in the civil action filed a motion to disqualify. The motion was denied as the judge found that the two representions were not substantially related.

The court here held that the disposition of the disqualification motion did not preclude a disciplinary action:

Because circuit courts have no authority to impose disciplinary sanctions upon attorneys, their decisions on motions to disqualify based on alleged conflicts of interest are not dispositive with regard to whether disciplinary action is required.

The court nonetheless concluded that "sanctions are not warranted in this instance." The facts were not in dispute and:

Allowing the respondents to proceed when the charges are wiithout merit would needlessly duplicate the efforts and costs of the parties and would not promote judicial economy.

The court analysed the evidence and found no violation of Rules 1.9 and 1.11. Because the "clients" of the prosecuting attorney are the People of West Virginia, the defendants in the civil action (the City of Charleston and others) were not his former clients.

I do not recall a prior instance where a state high court has prohibited a bar prosecution rather than reviewed findings made in the normal course of disciplinary proceedings. (Mike Frisch)

June 11, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

The Ring

An Arizona attorney has consented to disbarment in the wake of his guilty plea to criminal charges.

Huffpost Miami had details:

Kim Rothstein's former attorney pleaded guilty Wednesday to conspiring to help her hide more than $1 million in jewelry from federal authorities.

Scott Saidel took off his designer eyeglasses and bowed his head after admitting his role in the doomed scheme put together after the Ponzi scheme of Kim's husband, Scott Rothstein, spectacularly collapsed.

Saidel, Kim Rothstein and one of Kim Rothstein's friends hid the jewels, including a 12-carat diamond ring, from the federal government, attempting to secretly sell the pieces, according to Saidel's plea agreement. Saidel also acknowledged they plotted to persuade the imprisoned Scott Rothstein to lie under oath about the ring's whereabouts.

Saidel faces up to five years in prison when he is sentenced June 7 for conspiring to commit money laundering, obstruct justice and tamper with a witness. Kim Rothstein and her friend, Stacie Weisman, are set to enter their own guilty pleas in the case Friday afternoon at the federal courthouse in Fort Lauderdale.

Saidel, 45, told U.S. District Judge Robin Rosenbaum he expects to lose his law license. A Florida Bar official said Wednesday that a guilty plea to a felony charge sets into motion the suspension process.

The Boca Raton attorney already has paid the federal government about $65,000 and he agreed Wednesday to forfeit an additional $2,500 in cash, four expensive pens and a pair of mother of pearl, diamond and sapphire cuff links.

The attorney also practiced in Florida. (Mike Frisch)

June 10, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Maine Chance For F. Lee Bailey

Last Friday, the Maine Supreme Judicial Court found that famed but disbarred attorney F. Lee Bailey had "demonstrated the requisite good character and fitness to practice law in the State of Maine."

On motion to reconsider, the court found that his unresolved tax debt "although large" did not prevent admission. His "genuine effort" to resolve these issues demonstated his present character and fitness.

The court remanded the admission application to the Board of Bar Examiners with instructions to issue a certificate of qualification. (Mike Frisch)

June 10, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Ugly Side Of D.C. Bar Politics

When Gregory Smith wrote his wonderful attack on the D.C. Bar's profligate and irresponsible dues increase, he noted that the only other member of the Bar's Board of Governors to oppose the increase was Dan Schumack.

Well, I know what inevitably happens next.

Dan Schumack was defeated for reelection to the BOG. Another voice silenced.

I firmly believe that the bar's executive leadership controls the outcome of these bar elections. You speak against what the leadership wants and you are gone.

These people have recession-proof jobs because you have to pay your bar dues in good times and bad.

They can spend on themselves like drunken sailors on shore leave, partying like its 1999 by sending staff literally in droves to each and every ABA conference.

Many of these bar "executives" go to three or more conferences a year with all expenses paid, courtesy of the mandatory dues paid by D.C. Bar members.The travel, hotel, food and drinks are on us.

Nice work if you can get it.

And if you control who gets to serve in leadership positions, you are set for life. (Mike Frisch)

June 10, 2013 | Permalink | Comments (0) | TrackBack (0)

When You Assume...

In a "case of first impression," the New Jersey Supreme Court imposed a suspension of six months and barred pro hac vice admission of an attorney whose license was administratively suspended for non-payment of the annual assessment for the Lawyers' Fund for Client Protection.

The suspension will be effective if the attorney is reinstated from the administrative suspension.

The attorney was an associate at a firm from 1993 to 2000. The firm paid the assessment. When he joined a new firm, "he mistakenly believed that his CPF fees were being paid by that firm, but took no action to confirm that asumption."

In fact, it was not paid for ten years.

The attorney practices in New York but appeared in "two or three" New Jersey matters while his license was revoked.

The order here also directs that the discipline be referred to New York authorities. (Mike Frisch)

June 10, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Should Ineffectiveness Claims Be Allowed In Termination Of Parental Rights?

 The Vermont Supeme Court has affirmed the termination of parental rights of a father who had claimed that his attorney was ineffective and conflicted.

The court summarized the claim

At the beginning of the hearing, father told the court that he was receiving ineffective assistance of counsel.  Father argued that his lawyer had failed to pursue various strategies recommended by father to investigate and prepare for the trial, projected that she would not introduce or object to important evidence at trial, and said she would not advocate aggressively for him in the trial because she had been a foster parent and was thus sympathetic to DCF [the Department for Children and Families].

The court explained that it could not assess father’s lawyer’s effectiveness at trial until after the hearing, but did invite counsel to address father’s concerns regarding her preparedness.  Father’s lawyer explained that she would, in the hearing, be raising many of the points identified by father, and that she had assessed and made decisions about the appropriateness of various issues raised by father based on her knowledge of the law.  She indicated that she was prepared for trial. 

The attorney denied being a foster parent and stated she had adopted a child. She had no current relationship with DCF.

The trial court found there was no conflict and the hearing went forward.

The Court:

We discern no conflict of interest that precluded father’s attorney from representing him.  Rule 1.7 deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.”  V.R.Pr.C. 1.7(a)(2).  The comments to the rules explain that such personal interest conflicts may include a lawyer’s business or employment interest with an opponent’s client or law firm, a lawyer’s financial interest in an opponent, or a lawyer’s personal connection to other lawyers in the action.  Here, there is simply no conflict.  Father’s attorney had no personal interest in the outcome of the case that prevented her from providing father with adequate representation.  Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody.  This created no inherent bias that would prevent counsel from adequately representing father.

Justice Dooley concurred, stating that he has not decided that ineffective assistance claims should be allowed in termination of parental rights cases. (Mike Frisch)

June 10, 2013 in Clients, Law & Society | Permalink | Comments (0) | TrackBack (0)

Censure For Sex With Client

The New Jersey Supreme Court has censured an attorney who engaged in sex with a cient.

The attorney was appointed to represent the client on theft charges. The complainant was the client's mother.

The attorney was aware that the client had attempted suicide, was undergoing treatment for methadone withdrawal and was involved in a custody dispute.

He also was aware (and told the client) that he could be disciplined for his conduct.

The relationship lasted about six weeks, until the attorney's wife found out about it.

The client testified about the situation at the disciplinary hearing:

I felt like I better behave or one, I liked him and he would leave me or two, he could screw me in court and not represent me all the way ...

The Disciplinary Review Board concluded that the attorney engaged in a conflict of interest and conduct prejudicial to the administration of justice.

The fact that the attorney was apppointed was treated as an aggravating factor. (Mike Frisch)

June 10, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)