Friday, July 12, 2013

Fired Dental Assistant's Claim Rejected Again In Iowa

The Iowa Supreme Court has affirmed its earlier conclusion that a dental assistant terminated because her employer's spouse was jealous of her did not make out a claim of unlawful gender discrimination.

Rather, she was "terminated because of the activity of her personal relationship with her employer, not because of her gender."

Bad treatment, perhaps, but not unlawful discrimination, according to the court.

There is a special concurring opinion that makes clear that the law supported the claim, but not the specific facts alleged by the discharged employee.  (Mike Frisch)

July 12, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Arbitration Resolves Fee Fight

The District of Columbia Court of Appeals affirmed the trial court's denial of a motion to vacate an arbitration award that had resolved competing claims to attorneys' fees in a California litigation.

There were several attorneys and firms involved in the underlying case, which was a class action that alleged age discrimination against television writers over the age of 40.

The unhappy attorneys had filed a motion to vacate the award in California, which was dismissed on jurisdictional grounds. 

They renewed their attack in the District of Columbia, claiming that the arbitrator had exceeded his authority and denied them due process. The arbitration outcome was defended by other involved attorneys.

Here, the court found no basis to vacate the arbitral decision.

If nothing else, the lenghty court opinion is a testament to how complicated things can get when lawyers are fighting over their share of a fee. (Mike Frisch)

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

Thursday, July 11, 2013

Don't Lie To A Hearing Committee (Even If They Don't Think You Did!)

The District of Columbia Court of Appeals imposed a suspension of two years and fitness of an attorney who had neglected two matters.

The matters involved court-appointed guardianships and care of an elderly, infirm client.

The neglect of one of the matters caused significant financial harm to the client.

The hearing committee had concluded that the attorney did not intentionally lie in her testimony but rather had misremembered facts remote in time.

She claimed to have visited a client three times a year on the way to her parent's Massanutten, Virginia vacation home. In fact, she had not.

The Board on Professional Responsibility disagreed with the hearing committee and recommended the substantial suspension imposed here based on a finding of false testimony.

The court agreed with the board, noting that the attorney false claim to have visited the client in the would have required a 130 mile trip from the vacation home. A drive one would not misremember.

The court concluded that there was sufficient evidence to sustain the board's finding that her elaborate, inaccurate testimony was knowingly false.

The court has now firmly established that lying in a disciplinary proceeding is serious misconduct. (Mike Frisch)

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

"Laughing Still"

An interesting attorney discipline post from the VLW (Virginia Lawyers Weekly) blog:

Jason Roper, formerly of Virginia Beach, had sued lawyer Brian Ray Dinning on behalf of a couple who claimed Dinning had swindled them out of investment money. Roper’s conduct during a 2009 deposition in that case helped earn him a three-year suspension from the Virginia State Bar.

Roper won a $722,000 judgment for his clients, but he evidently had not lost any of his animosity towards Dinning when Dinning was indicted last year on 25 counts of fraud.

Roper sent an email to Dinning saying he hoped Dinning would enjoy 20 to 30 years in a federal penitentiary. The email suggested Roper would comfort Dinning’s wife during his absence and alluded to the prospects for Dinning’s sexual victimization in prison, according to the VSB’s account.

Roper closed the message saying “Laughing still, Jason C. Roper.”

Members of a VSB disciplinary panel found the letter to be a violation of the ethics rule barring a “criminal or deliberately wrong act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.”

The disciplinary board imposed a public reprimand with a requirement for Roper to complete an anger management class – a “non-Internet classroom-type class acceptable to the bar.”

If Roper fails to complete such a class by the end of the year, the punishment becomes an additional six-month suspension.

Roper has addresses in both Pennsylvania and Kentucky, according to the order from the VSB disciplinary board.

Dinning pleaded guilty last month to two counts of fraud and faces up to 50 years in prison.

(Mike Frisch)

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

Professionalism Corrections

On July 6, 2013, the Florida Supreme Court promulgated a Code for Resolving Professionalism Complaints.

Today, the court corrected the Code in two respects.

Rather than Anger Management Classes, the corrected order designates a Stress Management Workshop. Certain provisions are triggered by "cause to believe" rather than on "probable cause." (Mike Frisch)

July 11, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

In-House Privilege Upheld By Massachusetts Court

A significant decision today by the Massachusetts Supreme Judicial Court.

The issue and holding:

The issue presented on appeal is whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  We conclude that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.  Because these criteria were met in this case, we affirm the judge's order allowing the defendant law firm and its attorneys to invoke the attorney-client privilege to preserve the  confidentiality of these communications.

The law firm was retained by a commercial lender to investigate title and foreclose on property secured by what the lender thought was a first mortgage. A third party claimed a superior interest in the property.

A year later, the client (through outside counsel) sent the law firm a draft complaint alleging malpractice and breach of contract. 

The lawyers in the firm then consulted with the firm partner "designated to respond to ethical questions and risk management issues on behalf of [the firm]..."

The court underscored the importance of the ethics attorney function:

Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm's reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities: it guarantees the confidentiality necessary to ensure that the firm's partners, associates, and staff employees provide the information needed to obtain sound legal advice.  See Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 850 F.Supp. 255, 255 (S.D.N.Y.1994) ("No principled reason appears for denying ... attorney-client privilege to a law partnership which elects to use a partner or associate as counsel of record in a litigated matter").  "[B]road protection of communications with law firm in-house counsel, including communication about the representation of a current client of the firm, ... would encourage firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm." Chambliss, supra at 1724.  As the United States District Court for the Southern District of Ohio recently noted: 

"[I]ndividual lawyers who come to the realization that they have made some error in pursuing their client's legal matters should be encouraged to seek advice promptly about how to correct the error, and to make full disclosure to the attorney from whom that advice is sought about what was done or not done, so that the advice may stand some chance of allowing the mistake to be rectified before the client is irreparably damaged.  If such lawyers believe that these communications will eventually be revealed to the client in the context of a legal malpractice case, they will be much less likely to seek prompt advice from members of the same firm."

The court rejected a differing result when the situation involves a current, rather than former, client:

In law, as in architecture, form should follow function, and we prefer a formulation of the attorney-client privilege that encourages attorneys faced with the threat of legal action by a client to seek the legal advice of in-house ethics counsel before deciding whether they must withdraw from the representation to one that would encourage attorneys to withdraw or disclose a poorly understood potential conflict before seeking such advice.  The "current client" exception is a flawed interpretation of the rules of professional conduct that yields a dysfunctional result.  See N.Y. St. Bar Ass'n Comm. on  Prof. Ethics, Op. 789 (2005) ("We do not believe that the conflicts rules ... were intended to prohibit ethics consultation when it is most helpful:  during the client representation").  As such, we decline to adopt it in Massachusetts.

Briefs were submitted by several amicus curiae, including the Association of Professional Responsibility Lawyers, the American Bar Association and the Attorneys' Liability Assurance Society, Inc.

The case is RFF Family Partnership, LP v. Burns & Levinson LLP. One should be able to access the decision through this link.

Law firm ethics counsel --every firm of sufficient size needs one. (Mike Frisch)

July 10, 2013 in Current Affairs, Hot Topics, Privilege | Permalink | Comments (0) | TrackBack (0)

A Proprietary Interest?

The Maryland Court of Appeals has disbarred an attorney who engaged in a "romantic, then intimate relationship" with her client in a divorce case.

The attorney also improperly communicated with the opposing party, made false statements and failed to cooperate with the discipline process.

The attorney had moved in with the client and shared expenses, which contributed to the client's child support payments. In addition to a conflict of interest in continuing the representation, the court majority found that this violated the "proprietary interest in litigation" prohibition of Rule of Professional Conduct 1.8(i).

This conclusion triggered a concurring and dissenting opinion by Judge Adkins, who discusses the common law antecedents of the rule and would hold that the sharing of living expenses has no link to "the notions underlying champerty and maintenance [which] focus on the person's acquisition of a specific interest in the litigation at hand."

The dissent views the Rule 1.8(i) ruling as having

broad implications for routine conduct that lawyers regularly engage in on behalf of family members and romantic partners. For example, if a lawyer's ailing father were to move in with him, and share income and expenses during some litigation against the father's health insurance company, which the lawyer was handling, he would "acquire an interest" in the litigation, presumably in violation of Rule 1.8(i).  The same would be true if a lawyer were representing her brother in litigation, and she and her brother began living together, sharing expenses (Including those of litigation) and income. A lawyer who was handling litigation for an adult child could alse run afoul of Rule 1.8(i) if the child moved in with the lawyer, sharing expenses, during the litigation...In my view, there is no reason for this Court to be disciplining a lawyer for innocuous conduct of this type, that is, I submit, not uncommon among ethical private practitioners.

The concurrence/dissent, joined by Chief Judge Bell, would impose an indefinite suspension. (Mike Frisch)

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

Tuesday, July 9, 2013

Smolen Answers Bar Charges

We recently reported on ethics charges brought against former Sidley Austin partner Lee Smolen by the Illinois Administrator.

An answer to the bar complaint was recently submitted on his behalf by counsel.

The answer admits some facts but denies that any ethical rules were violated.

With respect to the fabricated taxi cab receipts allegations, the answer states that

his submission of fabricated taxi receipts was a poorly conceived short cut around the firm's reporting procedures in order to secure more time to address his substantial and demanding commitments to the firm.

The improper reimbursements for gifts, sporting event tickets and holiday meals were the product of "inadvertent error or his occasional failure to pay sufficiently close attention to detail" and "inadvertent error and not wrongful intent." (Mike Frisch)

July 9, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bernabe Blog Update

Our friend Alberto Bernabe of John Marshall Law has asked that we post this notice:

For those of you who follow Alberto Bernabe's Professional Responsibility blog, Alberto asked me to let you know that if youwant to continue to get the updates by e-mail you will need to subscribe again.  Last night the "feed"that automatically generates the e-mail updates stopped sending e-mails to registered users.  Please take a momentto visit his blog and sign up again for the e-mail update.   If you have any questions or concerns please feel free to e-mail Alberto directly at

A blog worth reading. (Mike Frisch)

July 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Judge Not Thy Former Firm's Cases

The Massachusetts Appeals Court has resolved the following issue:

The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case.  Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality.  We agree that there is no basis for recusal on the grounds of actual bias.  However, given the protracted litigation, the judge's personal involvement in the lawsuit, the amount at  stake, and the judge's inconsistent rulings on prior recusal motions, "an objective appraisal of whether this was 'a proceeding in which [her] impartiality might reasonably be questioned' " compels the conclusion that recusal was warranted.  Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972).  Accordingly, we reverse the judge's orders denying recusal and remand these consolidated cases for further proceedings.

The conclusion:

We have no reason to question the judge's good-faith belief that she could decide these cases fairly and impartially.  However, even the appearance of partiality undermines confidence in the judicial system.  In light of the judge's long-term relationship with [her former law firm] Morrison, the subsequent protracted litigation, her active participation in that dispute, the amount of the claim at stake, and her inconsistent rulings on prior recusal motions, we conclude that a reasonable person might question her impartiality.  We therefore reverse the orders denying the judge's disqualification and remand for further proceedings before other judges. The stays previously entered in these matters are lifted.

The case is Commonwealth v. RV Morgan, LLC, decided today. (Mike Frisch)

July 9, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

We Hold These Untruths

The Maryland Court of Appeals has imposed a reprimand of an attorney who

granted a lender a security interest in his share of an anticipated attorney's fee from a judgment that was on appeal, later lied to the lender about the resolution of the judgment and receipt of the fee, and used the funds to pay other debts...

The court's opinion begins with

Most lawyers prize their integrity. The Maryland Lawyers' Rules of Professional Responsibility ("MLRPC") enforce that ideal by requiring truthfulness in statements to other during the course of representation and candor toward tribunals and by prohibiting dishonest conduct. Human frailty being what it is, not all lawyers tell the truth all the time. It falls to this Court in its capacity as the principal regulator of the legal profession in Maryland to distinguish those untruths that violate the MLRPC from those that do not. For example, this Court has held that a lawyer who lies to his mistress about his fidelity in matters of the heart does not violate the MLRPC, even if the mistress is also a client. On the other hand, a lawyer who knowingly submits false documents to enhance an insurance claim concerning the lawyer's home is subject to discipline, even if the claim is not related to the lawyer's practice and the lawyer is not otherwise prosecuted.

Here, the attorney sought and received a short term loan from a private lender at a high interest rate,  due to his financial distress. The loan gave the lender a security interest in the fee from a specific case.

The hearing judge had found no ethical violations: "Lying to one's bill collector is akin to lying to one's mistress."

The court here noted a number of mitigating circumstances, including the attorney's military service, community reputation and evidence of intimidation by the lender and lender's counsel.

Chief Judge Bell dissented and would dismiss the charges.

For those who are interested, the "It's OK to lie to your mistress" precedent is linked here. The attorney was suspended for other ethical violations.

(Mike Frisch)

July 9, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Refuge In New Jersey

An attorney who was disbarred in 2011 by the New York Appellate Division for the Second Judicial Department was the subject of multiple reciprocal discipline actions.

He was disbarred on a motion for default in Colorado, disbarred in Pennsylvania for failure to advise authorities of the New York sanction and disbarred in Connecticut when he did not contest reciprocal discipline there.

One bar left - New Jersey.


Not even close.

Based on report of the Disciplinary Review Board, the New Jersey Supreme Court ordered a three-month suspension, to be served if and when he is reinstated from a September 2010 administrative suspension.

That suspension was imposed after he had failed to pay his annual trust fund assessment for seven years.

The DRB report is a study in the lowering of attorney ethical standards in the Garden State:

Here, respondent's were not small, isolated violations. His commingling and recordkeeping violations were of such a rampant nature that the New York disciplinary authorities treated him harshly. In fact, the New York Supreme Court [sic] agreed with the special referee that [his] testimony demonstrated a "weak understanding of the disciplinary roles relating to escrow accounts and the handling of client funds." The referee found, too, that [he] had "learned nothing from [the] disciplinary proceeding."

Given the scope of respondent's misconduct, at least a reprimand is warranted.

Yes, I'd say so.

The Office of Attorney Ethics had sought disbarment.  (Mike Frisch)

July 9, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

Have It Your Way

The Maryland Court of Appeals has issued an opinion explained its May 2, 2013 order of disbarment of an attorney.

The attorney had failed to pay employee withholding taxes, knowingly misappropriated fees and other trust funds, failed to supervise a non-attorney employee and provided false information to Bar Counsel.

The employee was hired to assist the attorney's office manager and was later promoted to the office manager position. At the time she was hired, she was eighteen years old with prior work experience at Burger King. (Mike Frisch)

July 8, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sanctions Deferred Pending Bar Investigation

The Delaware Court of Chancery deferred decision on a request to revoke the pro hac vice status of a plaintiff's senior New York counsel.

Noting allegations of "serious misconduct" by counsel, the court concluded:

No state benefits more from admissions to its Bar pro hac than Delaware, and no judges benefit more from that system of admissions than the members of this court. Having said that, the opportunity to practice before this bar, even on a temporary basis, is a privilege. Like Delaware attorneys, attorneys from other states are expected to abide by high standards of professional conduct...

Despite the seriousness of the allegations, I find that little such risk [to the administration of justice] here going forward. The substantive litigation in this matter is finished. The parties are in the process of entering a stipulation of settlement. It does not appear that New York counsel will have any substantive role to play in this matter going forward.

The court deferred the issue of sanction and sent the matter to the Office of Disciplinary Counsel for consideration.

The opinion does not describe the allegations. (Mike Frisch)

July 8, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Discipline For Rule 1.13(a) Violation

John Steele at Legal Ethics Forum has posted a very interesting bar discipline decision from the Kentucky Supreme Court.

The court suspended the attorney for 120 days for, among other things, a violation of Rule 1.13(a) (organization as client).

The attorney represented a corporation of heirs to approximately 500 acres of land "rich in timber, oil, coal, and gas." He was hired to pursue recovery of proceeds from timber that was wrongfully harvested and coal that was wrongfully mined.

A division between two factions of heirs developed. A new board (consisting of all prior board members save one) was elected.

The attorney challenged the legitimacy of the new board and filed suit in the corporation's name without corporate authority. Eventually, the attorney arranged for another lawyer to handle the case, which was converted to a shareholder derivitive suit.

The court held that the attorney failed to communicate with the board (his client) and violated Rule 1.13(a) in that "the steps he took (such as filing the suit) were not reasonable and did not avoid disrupting the organization, as required by the rule."

The attorney also violated the duty of confidentiality by turning over files to successor counsel.

Bloomberg BNA had the original report of the decision. (Mike Frisch)

July 8, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Immigration And Separation Not Substantially Related

In a matter involving an attorney's representation of a wife in negotiations with her philandering husband, the Maryland Court of Special Appeals disagreed with the trial court's holding that there had been no attorney-client relationship between the husband and the attorney for the wife.

The court nonetheless affirmed and enforced the agreements.

The attorney had handled an immigration petition that resulted in an attorney-client relationship with both spouses:

The testimony established that [attorney] Gu prepared the petitions for the benefit of Wife, using documentation supplied by Husband. Husband was required to be the petitioner, thus making any services provided  by Gu in furtherence of the immigration petition for his benefit as well as Wife's. Husband's furnishing of the necessary documentation to enable Gu to prepare the petition was a manifestion of his intent that she provide legal services to him...Gu, as an experienced immigration lawyer, manifested her consent to provide legal services for Husband by preparing forms obligating him to support Wife and using documentation supplied by him. The circuit court erred when it concluded that no attorney-client relationship existed between Husband and Gu in the immigration matters.


The immigration petitions and the separation agreements involve wholly different practical areas of law and issues and, therefore, are not substantially related.

The information that husband provided to the attorney related to a different employment than at the time that the separation was negotiated.

Husband had acknowledged in an e-mail that attorney was not representing him in the separation process and, indeed, was specifically advised to seek his own counsel. (Mike Frisch)

July 8, 2013 in Clients | Permalink | Comments (0) | TrackBack (0)

Another IRS Scandal

The Maryland Court of Appeals has disbarred an attorney for his handling of a civil matter and misconduct after agreeing to a 30 day suspension of his Maryland license in January 2008.

After filing suit on behalf of the client, the attorney accepted a position with the IRS, which prohibited outside clients without agency permission. He concealed from the client that he was no longer able to handle her case because of the IRS policy.

He compounded the problem by consenting to the suspension of his Maryland license. He remained counsel of record in the civil matter while suspended.

He further compounded his problems by making false representations to Bar Counsel and in a petition for reinstatement from the suspension by failing to disclose his unauthorized practice in the civil case.

The court found that the attorney "was motivated by dishonesty and selfishness" and failed to appreciate the misconduct. He did not return any portion of the advanced fees. (Mike Frisch)

July 8, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)