February 2, 2013
Fee In Land Not Simple Or Proper
An Alaskan Native corporation entered into a fee agreement with a law firm in connection with litigation over "its certification of and title to certain lands" under the Native Claims Settlement Act.
The contingent fee agreement gave the law firm an interest in the lands at issue.
After the client had prevailed, a bar arbitration panel found that the firm could not take the land, but was entitled to a fee payment equal to the land's value. A 1995 court judgment enforced the arbitration award. The client paid the law firm for several years.
The client eventually was unable to continue the payments and litigation ensued.
The Alaska Supreme Court held that the contingency agreement violated provisions of the Act and that the arbitration award was improper. The court noted tht the case presented "complex" issues as to whether the 1995 judgment was void or voidable.
The court ordered the law firm to return $643,760 in paid fees.
The firm may now establish its entitlement for fees under quantum meruit. (Mike Frisch)
February 1, 2013
E-Mails And Images On Work Computer Get Lawyers Disbarred
A connection to computers was a common theme in two disbarment cases reported in the February 2013 California Bar Journal.
[An attorney] was disbarred Dec. 6, 2012, and was ordered to comply with rule 9.20 of the California Rules of Court.
[He] was convicted criminally of creating and sending approximately 21 emails and/or telephone calls to his former wife that were threatening, obscene and calculated to harass. The conviction went to the State Bar Court for a determination of whether it involved moral turpitude.
[The attorney] did not respond to a notice of hearing on conviction (HOC) and his default was entered. When he made no move to have the default set aside within 180 days, the bar petitioned for his disbarment under rule 5.85 of its Rules of Procedure. The bar court also found that the conviction did involve moral turpitude.
[He] had no prior discipline record.
[An attorney] was disbarred Dec. 19, 2012, and was ordered to comply with rule 9.20 of the California Rules of Court.
[He] was convicted of misdemeanor child pornography after his law firm discovered he had downloaded a large number of pornographic images to his work computer. He was fired and charged with 55 counts of possessing child pornography. [He] pleaded guilty to one count of downloading images to his computer; he did not purchase, post or exchange any images or have contact with children in person, online or in chat rooms. He was placed on probation and registered as a sex offender. After finding Stocker complied with his probation conditions, the court reduced his probation from formal to summary and the conviction was expunged in 2011.
In mitigation, [he] took steps that recognized his wrongdoing, including completing a program for sexually compulsive behavior and enrolling in the Lawyer Assistance Program, he submitted evidence of his good character, provided pro bono services, cooperated with the bar’s investigation and had no prior discipline record.
A Case Of First Impression
In a case of first impression, the Nebraska Supreme Court has imposed a public reprimand that is intended to "serve as a warning to all members of the Nebraska bar that this court will not ignore or acquiesce in public conduct of [the] nature" involved in the case.
The matter arose from the attorney's conviction at a bench trial of third degree sexual assault and public indecency. The assault conviction was reversed on appeal; the indecency conviction was affirmed. JournalStar.com had this report.
The conduct took place in a remote, wooded area of a Lincoln park. The other participant was an adult undercover police officer. The officer thought the attorney had signaled to him and they had a conversation. They went deeper into the woods and had a voluntary encounter. No one else saw what took place between the two.
The attorney has not practiced since the 2010 incident.
The court rejected the attorney's argument that the "lewd" conduct did not adversely reflect on his fitness to practice law and was thus not sanctionable.
The court also declined to impose a private reprimand to deter such conduct.
There was substantial mitigating evidence regarding his good character from the attorney's community. The court noted that he has played the organ in church for forty years.
To be clear: It appears that Nebraska has imposed discipline for a consensual sex act between adults with no commercial aspect because it took place in a public area (though remote and seen by no one else). (Mike Frisch)
January 31, 2013
A Whopper with Spit, To Go
Responding to a question certified by the Ninth Circuit, the Washington Supreme Court has held that a deputy sheriff who got a Whopper with cheese from a Burger King drive-thru and "observed what appeared to be a glob of spit on the meat patty" has a cause of action for emotional distress without suffering a physical injury.
The deputy touched but did not consume the loogie. He sued under the state products liability act.
The court held that the claim was properly brought "if the emotional distress is a reasonable response and manifest by objective symtomatology" to touching the contaminated food product.
DNA testing proved that the spit came from a Burger King employee, who was charged and got 90 days in jail.
There is a dissent. (Mike Frisch)
Florida Adopts New Advertising Rules
The Florida Supreme Court has amended its rules governing attorney advertising. Te court acted after receiving the results of an "extensive study by the Florida Bar."
The court adopted a new numbering scheme to avoid confusion with the now-former rules. It also modified the Bar's proposal on the use of titles by retired judges, executive and legislative branch officials.
More after we review the new rules. (Mike Frisch)
Suspension For Bait-And-Switch
The Maryland Court of Appeals has imposed an indefinite suspension of no less than 90 days in matters arising from the attorney's relationship with a loan modification business.
The court agreed with Bar Counsel that the attorney violated Rule 1.5 (fees) by leading a complainant to believe that she was getting legal, as opposed to lay, services:
The retainer agreement between [the complainant] and the [law] firm explicitly detailed legal services that would be provided, including negotiation on her behalf, that, by [the attorney's] own testimony at the hearing, he never provided. In fact, [he] testified that he knew it was not possible to negotiate with the lenders on behalf of the borrowers early in this practice but "just never changed the document" to eliminate that language to reflect the actual legal services he was capable of providing.
The attorney admitted that he did not provide legal services to the complainant. (Mike Frisch)
A judgment on behalf of a Major League umpire against Wilson Sporting Goods was affirmed today by the District of Columbia Court of Appeals.
Umpire Ed Hickox was wearing a mask given to him by a Wilson representative, with "what the representative claimed was a new, safer design." He was injured while wearing the mask while working the plate at a Washington Nationals game when a ninth-inning foul ball hit his mask. He suffered a concussion and moderate loss of hearing.
The mask "had a newly designed throat guard that angled forward instead of extending straight down." The foul hit the throat guard and "the mask did not deflect the ball but rather temporarily trapped the ball, concentrating the ball's energy at the point of impact."
The court rejected Wilson's attacks on the expert testimony and that an assumption of risk instruction was improperly denied.
The court concluded that the evidence was sufficient to support the verdict. (Mike Frisch)
Eight Year Delay In Prosecution Does Not Mitigate Sanction
The District of Columbia Board of Professional Responsibility has recommended the disbarment of an attorney based on findings that he had recklessly misappropriated funds entrusted to him as a conservator.
The board noted that the hearing committee expressed concern about the delay in filing the ethics charges.
The matter was referred to Bar Counsel in 2003 by court order and the charges were filed eight years later. Although the delay was unexplained, there was no prejudice in defending the charges and no reduction of the appropriate proposed discipline.
One notable aspect of the case is that the board heard oral argument this month and issued a short report that adopted the hearing committee findings. I commend that approach.
The case is In re Lennox Simon and can be found through this link. (Mike Frisch)
January 30, 2013
A Truthful (but Nonresponsive) Response
The Wyoming Supreme Court has imposed a public censure of an attorney who failed to communicate with his client and was not prompt in responding to the ensuing bar complaint.
When disciplinary counsel wrote to remind him to respond, he sent a fax that ended with this explanation of the delay:
I so enjoy getting letters from the State Bar marked Personal-Confidential and I put it at the bottom of the pile instead of the top.
After another reminder, he gave a refund to the complaining client. (Mike Frisch)
E-Filing Confidentiality Breach Draws Reprimand
An Illinois Hearing Board has reprimanded an attorney who disclosed confidential information in a court filing:
In 2010, Respondent, an associate attorney at the law firm of Greene and Letts in Chicago, Illinois, was the attorney responsible for all cases stemming from a contract the law firm had with the United States Department of Justice to represent the United States in debt collection cases involving student loans.
In July and August 2011, at Respondent's direction, one of Respondent's several non-lawyer assistants prepared complaints and corresponding exhibits alleging that defendants were indebted to the United States for failure to pay student loans.
At Respondent's direction, one of Respondent's several non-lawyer assistants logged on to the U.S. District Court for the Northern District of Illinois ("N.D. Ill.") Case Management/Electronic Case File ("CM/ECF") system to file the complaints and exhibits.
When logging on to the CM/ECF system, one of Respondent's several non-lawyer assistants, was required to check a box that declared that the filings were in compliance with Rule 5.2(a) of the Federal Rules of Civil Procedure ("Rule 5.2(a)"), which required that personal identifying information be redacted from all filings.
The exhibits that Respondent attached to the complaints were loan documents that contained the defendants' personal identifying information, such as social security number, date of birth, and account numbers. In numerous complaints and exhibits, defendants' personal identifying
information was not redacted, which cause the defendants' personal identifying information to be available to the public and viewable on the N.D. Ill. website home page.
The attorney also failed to properly suopervise the process of redacting the confidential information. (Mike Frisch)
Self-Representation In Bar Discipline Case Is Evidence Of Incompetence
The Wisconsin Supreme Court has revoked the license of an attorney who had a "lengthy disciplinary history."
The court summarized the problems:
Attorney [H]s return to the disciplinary process on multiple occasions with the same problems indicated a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations. The lack of acceptance of responsibility and lack of remorse was also demonstrated by Attorney [H]'s attempts to blame J.M. and his associate attorney for the delay in filing the new civil action. He also claimed that J.M. was withholding documents from him because he delivered more than two boxes of file documents to J.M. upon termination of the representation. The referee, however, found more credible the testimony of J.M. and his significant other that Attorney [H] had provided only two boxes of documents that purportedly represented the sum of Attorney [H]'s file on the J.M. representation...
...we determine that Attorney [H]'s license to practice law in Wisconsin should be revoked. We note that this is the fifth disciplinary proceeding against Attorney [H], and that he has now been disciplined for the same types of misconduct on multiple occasions. He has therefore demonstrated that he is unable to conform his conduct to the rules of professional conduct for attorneys in this state. As the referee noted, even when representing himself in this proceeding with his license status at issue, he failed to perform as a responsible attorney, ignoring the need to develop a defense substantiated by documentary evidence, to appear for court proceedings, and to file briefs, exhibit lists, etc., as requested by the referee. Moreover, of great importance to our determination is the referee's finding that Attorney [H] took $58,000 of his client's money and produced no benefit for the client. Indeed, he converted $28,000 of his client's money to his own personal uses without his client's knowledge. He has therefore demonstrated that he is not currently fit to hold a license to practice law in this state and to represent members of the public in important legal matters.
The court also ordered payment of costs and restitution. (Mike Frisch)
January 29, 2013
Late Writing And Poor Attitude Sidelines Bar Applicant
The Ohio Supreme Court has denied admission to a 2011 Chase College of Law graduate who was observed writing after time was called on the July 2011 bar examination.
Another applicant reported that she had written enough to complete full sentences twice, once on the first and again on the second day. The director of bar admissions had the applicant's tablemate confirm the late writing.
A hearing was held by the Board of Bar Examiners and a panel "concluded that [the applicant] had violated bar-examination rules by writing after time was called on at least two occasions and that she did not intend to violate the rule against writing after time was called." Her score was penalized but she nonetheless passed.
The character and fitness process did not go so well. The applicant "adamantly denied" the allegations and attacked her accusers. Her response to the allegations was "hostile" and she claimed it was an extreme hardship to attend the hearing.
The Board of Commissioners on Character and Fitness recommended against admission. The court here agreed.
The applicant will be allowed to reapply in February 2013. (Mike Frisch)
January 28, 2013
Redistricting Consultations Privileged in North Carolina
The North Carolina Supreme Court has held that the consultations between members of the General Assembly and lawyers employed by the Attorney General and two outside law firms (Ogletree Dinkins and Jones Day) in matters involving redistricting plans are protected by the attorney-client privilege.
Justice Jackson, for the majority, concluded that the General Assembly did not intend to waive privilege in such matters:
..we are unwilling to infer such a sweeping waiver unless the General Assembly leaves no doubt about its intentions.
Justice Hudson dissented, and noted that the enactment at issue stripped confidentiality from redistricting law. Without confidentiality, there can be no privilege:
Defendants seek to protect much of their legislative redistricting work from public scrutiny under the cloak of the attorney-client privilege; however, the statutory language could not be clearer in indicating that the privilege is inapplicable here, making waiver irrelevant.
Trimming The Fat
The Wyoming Supreme Court has affirmed a district court judge's order reducing by half the payment to an attorney appointed to represent an indigent parent in a parental rights matter.
The court agreed with the district court that some of the attorney's billings were "patently excessive." For instance, the attorney had billed 47.57 hours for a Friday through Sunday.
In order to properly charge the claimed time, he would have to have not eaten, relieved himself or done anything else during the blocked time (citing an earlier case where that point was made).
On this record, we cannot escape the judgment that [the attorney's] litigation efforts became overkill.
The district court's 50% cut was an appropriately "practical means of trimming fat" from the fee application. (Mike Frisch)
Virginia Is For Business
From the web page of the Virginia State Bar:
The Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed amendments to rule 5.4 of the Rules of Professional Conduct.
Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main Street, Suite 1500, Richmond, VA 23219 or firstname.lastname@example.org, no later than the end of the business day on April 19, 2013.
view proposed rule (PDF)
This proposed rule amendment is intended to bring Rule 5.4, Professional Independence of a Lawyer, into alignment with Va. Code §54.1-3902(B)(1), which permits a nonlawyer to serve as the secretary, treasurer, office manager, or business manager of a professional entity that is authorized to practice law, notwithstanding the rule’s prohibition against a lawyer practicing in a law firm in which a nonlawyer serves as a corporate officer.