Friday, July 5, 2013
The Connecticut Appellate Court has resolved an "important question" and held that an attorney's charging lien can arise as a matter of law to be applied to assets that are assigned to a party in a divorce action.
The court majority holds that the lien makes an attorney a priority creditor on the proceeds secured through the representation. This result is by operation of law without notice or filing requirements, when expessly or impliedly understood by the client.
A dissent would hold that the public policy interests that underpin Rule of Professional Conduct 1.5(d), which prohibits the charging of a contingent fee in a domestic action, apply here.
The dissent would thus hold that the charging lien does not arise as a matter of law. (Mike Frisch)
An attorney admitted in Maryland was also admitted in Virginia for the limited purpose of representing an entity client (Landmark Title) pursuant to Corporate Counsel Registrant status.
He solicited clients in two matters without properly disclosing the limitations on his Virginia practice; to the contrary, the solicitations suggested he was admitted in the Commonwealth.
The problem has been fixed. The attorney agreed to a public reprimand without terms in Virginia. (Mike Frisch)
In a matter involving a single case and client, the Maryland Court of Appeals imposed an indefinite suspension for the "grievous actions" of the attorney.
The attorney went to work for his father after his 1999 bar admission. The case arrived within weeks. It involved a personal injury claim of a client struck by a car in a parking lot. The defendant was never served.
While the attorney never entered an appearance (his father was attorney of record), he was responsible for the case. Eventually, it was dismissed. The client was never told; rather, he assured her by e-mail the case was still active.
He also made false representations concerning his contacts with and assurances from the clerk's office in a motion to reinstate the case.
Practice pointer: The client learned of the dismissal when "she performed an internet search through the Maryland Judicial Case Search."
I'd call that progress. (Mike Frisch)
Wednesday, July 3, 2013
The Wisconsin Supreme Court has affirmed convictions for second-degree reckless homicide in the death of an 11 year old child who died on Easter Sunday 2008.
The parents relied on prayers rather than treatment.
From Chief Justice Abrahamson's majority opinion:
Kara died when her father and mother, Dale R. Neumann and Leilani E. Neumann, chose to treat Kara's undiagnosed serious illness with prayer, rather than medicine. Each parent was charged with and convicted of the second-degree reckless homicide of Madeline Kara Neumann in violation of Wis. Stat. § 940.06(1) (2009) in separate trials with different juries.
The cause of death was diabetic ketoacidosis resulting from untreated juvenile onset diabetes mellitus.
Justice Prosser dissented:
This case is a tragedy in virtually every respect. I cannot say that the result of the Neumann trials is unjust. Nonetheless, there were and are serious deficiencies in the law and they ought to be addressed by the legislature and the courts. Failing to acknowledge these deficiencies will not advance the long-term administration of justice.
The ever-vigilant Illinois Administrator has filed a complaint based on the following alleged facts:
On June 7, 2011 at approximately 3:00 p.m., Respondent, 17-year-old Daniel Etman and others were playing a pick-up basketball game at the Highland Park Recreational Center located in Highland Park, Illinois.
During the course of the basketball game, Respondent and Mr. Etman argued about a disputed foul call. Respondent approached Mr. Etman, cursed at him and pushed Mr. Etman about the chest. Respondent then kicked Mr. Etman in the groin area causing Mr. Etman pain to the groin area.
According to the complaint, the attorney was convicted at trial of two counts of battery. (Mike Frisch)
An attorney who had misrepresented his Minnesota bar status and failed to disclose a bar grievance and contempt matter in seeking pro hac vice admission to the United States Court of Appeals for the Second Circuit was reprimanded by the New Jersey Supreme Court.
The complaint against him was filed by an attorney retained to pursue the matter by his opposing counsel in contentious litigation.
In defending the charges, the attorney posed the question: "Why would I?"
The answer of the Disciplinary Review Board: To get admitted so that you could represent your client in the litigation.
The attorney's efforts to explain/justify his conduct were rejected by the DRB:
[His] arguments that he forgot that he was not in good standing or that he misinterpreted the questions on the application for admission are specious and strain credibility. Respondent was clearly an able attorney with twenty years of experience. He could not have forgotten that he was no longer in good standing in Minnesota. He had not paid his annual fee there in close to twenty years. He had to know that his license was, at best, inactive, at worst, suspended...
Given the seriousness of the underlying allegations in the criminal contempt proceedings, it is hard to believe that [he] could have misinterpreted the language of the remaining questions.
The DRB found that the attorney made a false statement of material fact in an admission application.
Given that an applicant would be denied or had admission revoked for such a violation, one could argue that this is a tad on the light side. (Mike Frisch)
Tuesday, July 2, 2013
The City Attorney and city criminal prosecutor for Walnut Ridge, Arkansas has been reprimanded and fined $2,500 by Panel B of the state's Committee on Professional Conduct.
A pilot by the name of Heath Gephart landed a small plane at the Walnut Ridge airport. Federal officials had requested that local police arrest Gephart and a passenger and a "large quantity of marijuana" was discovered. Gephart faced state and federal charges as a result.
The city prosecutor visited Gephart in the jail and solicited him as client. He received a $15,000 fee.
Gephart had trouble contacting the attorney and learned of his law enforcement position through an internet search. He told the judge, who ordered the attorney to refund $12,500 of the fee.
The reprimand was for the conflict of interest and improper solicitation. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has imposed a reciprocal one-year suspension based on a like sanction ordered in New Jersey.
The stipulated facts are that in April 2003, respondent and her husband applied for a $275,000 mortgage to refinance their home. When respondent was advised that there was a 1993 federal tax lien on their home, she contacted the IRS and discovered that the payoff amount was $5,780. Thereafter, respondent submitted a false certificate of release of federal tax lien to the mortgage corporation to show that she purportedly paid off the amounts due to the IRS. Respondent also filed the false release with the Essex County Register. In May 2003, the president of the mortgage corporation discovered discrepancies between the certificate of release and IRS records. After confirming that the lien was still in effect, he informed respondent of his discovery that the certificate was false. Respondent contacted the IRS, admitted she had filed the lien release and satisfied the lien.
A few months later, in August 2003, respondent met with U.S. Treasury agents and in an effort to cover up her misconduct, she claimed an individual identified as "T.M." had provided her with the false certificate of release and she gave the IRS agents a false power of attorney purportedly from T.M.
In January 2007, a criminal complaint was filed in U.S. District Court, District of New Jersey charging respondent with knowingly uttering a counterfeit writing with intent to defraud the United States in violation of 18 USC §§ 495 and 2. In March 2008, respondent was accepted into a federal pretrial diversion program by which prosecution was deferred and, by order of July 7, 2008 the complaint was dismissed without prejudice.
The Rhode Island Supreme Court has affirmed the dismissal of a civil action brought by an attorney against his former law partners.
The firm breakup took place in 1999. The suit alleged intentional interference with prospective contractual relations, defamation, breach of fiduciary duty and corporate opportunity doctrine.
Judgment for the defendants as a matter of law was entered after a seven day trial.
The court noted earlier related litigation and concluded:
In 2003 - ten years ago - the trial justice cautioned that "[i]t is now time for each of the unhappy former partners to put this matter aside * * * rather than participating in an endless maze of pro se litigation." (citation omitted) In 2010, this Court observed that it was "especially unfortunate that, despite the trial justice's admonition at an early stage, the instant litigation has been prolonged for an additional seven years." Now, fourteen years after the dissolution of the law firm and the filing of this complaint, we lay this case to rest.
A recent Tennessee formal ethics opinion is summarized on the Board of Professional Responsibility web page:
Question: May a criminal defense lawyer alleged by a former criminal client to have rendered ineffective assistance of counsel voluntarily provide information to the prosecutor defending the claim outside the court supervised setting?
Conclusion: The Tennessee Rules of Professional Conduct do not strictly prohibit a former defense lawyer alleged to have rendered ineffective assistance of counsel from providing information to the prosecution prior to or outside an in-court proceeding. Exceptions to the confidentiality rules permit, but do not require, the former defense lawyer to make limited voluntary disclosures of information to the prosecution outside the in-court supervised proceeding.
The opinion is linked here. (Mike Frisch)
The Maryland Court of Appeals has reprimanded an attorney who disregarded a writ of garnishment issued against him.
The attorney had represented the plaintiffs in a legal malpractice case. In an earlier unrelated case, a corporation obtained a judgment against his client.
He was served with a writ of garnishment prior to the settlement in the legal malpractice action. In his answer, he denied holding any property "but [stated] that he would honor the court's order should he come into the possession of any such property."
He later distributed settlement funds without notice to the creditor or its attorney and without challenging the validity of the writ.
He ended up paying $40,000 of his own money to the creditor, whose attorney also filed a bar complaint.
The court found that he violated his obligation to hold disputed funds in escrow (Rule 1.15(e)), his obligations to a tribunal (Rule 3.4(c)) and engaged in conduct prejudicial to the administration of justice.
The attorney had practiced for 47 years without blemish, lacked a selfish motive, cooperated with Bar Counsel and paid the creditor out of his own pocket.
Justice Adkins dissented and would dismiss on a finding of no ethical violation. He concluded that the funds at issue were not the property of the creditor and not subject to garnishment:
But when there is clear law that renders the writ of garnishment invalid, the lawyer has no [Rule 1.15] obligation...the fact remains - [the judgment creditor] had no valid claim to the funds...
To be sure, Respondent may not have had an altogether pure heart, in that his goal was to keep the settlement funds away from his clients' creditors, and to do so secretly...
We should always keep in mind the serious consequences for an individual lawyer as we impose even the lowest form of discipline. A reprimand imposed on a good lawyer can have a profound impact on his reputation, a commodity that is irreplaceable. As the old saying goes, "It takes a lifetime to build a good reputation, but you can lose it in a minute."
Monday, July 1, 2013
The Vermont Supreme Court has imposed a suspension of three months of an attorney who had engineered the wrongful eviction of a client's tenant.
The court noted the facts:
On August 17, 2001, Deputy Sheriff Lavalla, a longtime acquaintance of respondent, met [client's daughter] Gabrielle Glick at respondent’s office and picked up the second letter and the Notice to Vacate with the intention of serving [tenant] Brennan. Deputy Sheriff Lavalla and Gabrielle Glick went to Sandra Glick’s home and served the papers on Brennan and informed her that she was to vacate the premises immediately. Brennan tried to discuss the matter with Deputy Sheriff Lavalla, showing him previous documents which stated that she was not required to vacate the premises until September 9, 2001. Deputy Sheriff Lavalla refused to look at the papers and insisted that she leave immediately. He threatened to handcuff and arrest her if she did not leave.
Chaos ensued. Unable to reach respondent to make sense of the matter, Brennan became hysterical. She had nowhere to go and no one to care for her dog. After locking her belongings in a room in the house, Deputy Sheriff Lavalla took Brennan to the Brattleboro Hospital Emergency Room, at her request. Animal control took the dog. As a result of the sudden eviction, Brennan suffered serious emotional and physical consequences, including post traumatic stress disorder and intermittent homelessness. The circumstances also exacerbated her substance abuse issues.
The court noted that the attorney, who was admitted in 1967, had five prior disciplinary actions:
We find that respondent’s actions were severe. Respondent’s manipulation of the legal system created dire consequences for both his client and Brennan, and he altogether disregarded his duties to uphold the law and maintain professional integrity. Further augmenting the violations arising out of this case are the five previous disciplinary actions, making respondent’s continued refusal to acknowledge wrongdoing particularly egregious. Nonetheless, there are mitigating factors. This matter has been delayed for a long period of time and, in the interim, respondent has not had other violations brought against him. Because the sanctions are not designed to be punitive in nature but rather are imposed to protect the public and the profession, we give strong consideration to the fact that respondent has not violated the rules in the last eleven years and find that a three-month suspension is appropriate.
A decision last week from the Indiana Supreme Court:
The concept of parents negotiating away parenting time as a means to elimate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.
The court decried the use of a child as a "bargaining chip." (Mike Frisch)
The inmate had completed his second year of law school when he drove a boat into another boat on Skaneateles Lake, causing the deaths of two people.
The judge has served in several positions since 1993 and is presently a justice of the Appellate Division for the Fourth Judicial Department.
Her letter to the Division of Parole was written on her judicial stationary, called the inmate her "friend" (but did not mention that she had never met him) and supported his release.
Parole was nonetheless denied.
The commission concluded that the "unsolicted letter...was inconsistent with well-established ethical standards prohibiting a judge from lending the prestige of judicial office to advance private interests." (Mike Frisch)