February 8, 2013
Curley And Rose
The ranch was "reputed, at one time, to be one of the largest ranches" in the state. It was owned by a childless couple named Hollis "Curley" Haisch and his wife Rose. The lawsuit involved allegations relating to the creation of a trust and, when the couple died, the estate.
The suit alleged that the defendant, the financial advisor to the couple, had breached fiduciary duties as a real estate broker and financial advisor. The jury found for the estate.
The court found that admissible evidence of an offer to buy the ranch was improperly excluded. When a prospective buyer offered to pay the $4.8 million asking price, the defendant fiduciary responded
Oh, God, you don't want to do that. I can get it for you cheaper than that.
The court rejected the contention that an ex parte meeting with plaintiffs' counsel, as well as allegations of bias, required the disqualification of the trial judge. (Mike Frisch)
It's Ethics, Not Basketball
A Colorado Hearing Board imposed a suspension of 90 days in a matter involving the attorney's mishandling of a criminal case involving allegations of child sexual assault, pattern of abuse.
The board found that the attorney, who had never handled such a case, violated rules mandating competence and diligence. He did not investigate the applicable law and did not associate with more experienced counsel.
The board also cited the attorney's "no harm, no foul" attitude concerning the misconduct. (Mike Frisch)
Staggered Suspensions For Law Partners
The Iowa Supreme Court has imposed 60 day suspensions of both partners of a two-person law firm for misconduct in connection with a sheriff's sale of real property.
The court followed the recommendation of the Attorney Disciplinary Board to stagger the suspensions "to minimize the disruption in the operation of their law firm." the board had also proposed 30 day suspensions.
The court found a conflict of interest in the representation of the buyer and seller, as well as a personal profit motive on the part of both attorneys.
[The attorneys] engaged in a course of conduct that violated multiple rules of professional conduct in an attempt to gain a personal profit. Their testimony that they did not actually accrue personal profit does not erase their intention of profiting. Additionally, the fact that they lost money on the transaction has resulted in financial harm to both Elite and Broadmoor, the two entities they represented.
The attorneys will be automatically reinstated if all costs are paid. (Mike Frisch)
An Immediate Threat Leads To immediate Suspension
Rejecting an attorney's contention that the evidence did not establish that he was an immediate threat to the public, the New York Appellate Division for the First Judicial Department suspended an attorney pending further disciplinary proceedings.
The court considered the following facts:
The Committee began its investigation into respondent's conduct when it received notice from the Lawyers' Fund for Client Protection that a check drawn on respondent's IOLA account was returned for insufficient funds. In its initial investigation it obtained respondent's bank records, and, since respondent did not keep a ledger regarding this account, their forensic accountant created a ledger, about which respondent was then deposed. Respondent admitted to over 10 occasions on which he wrote checks on his secrow account, payable to himself, unrelated to client matters, and to failing to maintain a ledger reflecting the transactions on the account. In addition, the bank records reflect that he deposited his own funds into the escrow account.
The attorney's plea against interim suspension:
Respondent protests that he does not present an immediate threat to the public interest, since each of his clients received all the funds due to them when they were due and there have been no client complaints, and since he fully cooperated with the Committee's investigation and ceased all such misconduct over two years ago. He also asserts in mitigation his volunteer work in cultural and community activities, and the hardship that suspension would cause him, his life partner, and those of his clients who cannot afford to hire new counsel.
The court was unmoved. (Mike Frisch)
Not Legal, Not Unethical
The Louisiana Attorney Disciplinary Board has recommended a one-year suspension with all but three months stayed in a case involving charges by the Office of Disciplinary Counsel that were both sustained and rejected in part.
The attorney was corporate counsel to a bail bonding company. He also had a private practice, but his offices was in the bonding company and it was his main client.
The bonding company had a "virtual monopoly" on the bail bond business in Jefferson Parish and a special relationship with an aptly-named Judge Green.
Four parish judges were caught in an FBI sting called Operation Wrinkled Robe.
The attorney was charged with violations arising from his advice that a $5,000 cash contribution to Judge Green was legal and proper. The cash was delivered to the judge at a golf tournament by an employee of the bonding company. The board found no ethical violations from the incorrect advice.
The attorney did engage in a ex parte contact with a judge in another case and committed other violations in representing private clients. (Mike Frisch)
February 7, 2013
Suspension Without Pay For Indicted Judges
The Pennsylvania Court of Judicial Discipline has suspended three judges without pay who were indicted in an alleged ticket-fixing scheme.
The orders can be found at this link. (Mike Frisch)
Recusal When Judge Consults Law Firm
A recent opinion from the Florida Judicial Ethics Advisory Committee concludes that a judge need not be recused from matters involving a law firm with which he had explored representation:
Here, the inquiring judge consulted an attorney from a very large law firm about a possible claim. The claim was investigated but no lawsuit was ever filed and nothing came of the consultation. That was a year ago. No social relationship has developed between the inquiring judge and the attorney whom the judge consulted or the attorney’s firm. The Committee unanimously opines that the inquiring judge need not recuse automatically from any cases in which the attorney or that firm files an appearance.
The opinion was not unanimous:
Nine members of the Committee opine that the need to disclose the inquiring judge’s consultation with the attorney/law firm, in cases where either the attorney or the law firm appears before the judge, must be decided on a case-by-case basis based on the factors stated above. Three members of the Committee opine that the judge should be required to disclose the consultation for a reasonable period of time.
More Hours than Necessary
The New York Appellate Division for the Third Judicial Department has ordered a one-year suspension of an attorney as reciprocal discipline based on a suspension of a year and a day imposed in Massachusetts.
The attorney "billed more hours than necessary during his representation of two clients in order to increase his billable hours at the law firm that employed him..."
The web page of the Massachusetts Board of Bar Overseers has this summary of the misconduct. (Mike Frisch)
February 5, 2013
Lawyer Suspended For Helping Client Avoid Tax Lien
An attorney who allowed his client to avoid a tax lien through use of an escrow account has been suspended for two years by the New York Appellate Division for the First Judicial Department.
The court described the misconduct:
In 2006, respondent and his firm were retained by a client to provide services related to business management, tax consulting, and the preparation of tax returns. The services also included collecting this client's income and paying his bills. In May 2007, respondent learned that his client's bank account had been frozen by a tax lien and he sought respondent's help in opening another account to deposit checks and pay bills. Aware that his client also had a host of other questionable tax liabilities, respondent sought the advice and legal counsel of Comeau, an experienced tax attorney. While Comeau denied that he ever counseled respondent to resolve this client's tax lien issue by opening an IOLA account, respondent testified that it was Comeau who suggested that this client could continue to conduct his business via an IOLA account. Thus, respondent opened an IOLA account into which he deposited this client's funds. While he was concerned that depositing these funds into his IOLA account assisted this client in avoiding tax liens, respondent nevertheless expected that this would ultimately aid this client in satisfying his tax obligations. Between May 2007 and October 2008, respondent repeatedly deposited this client's funds into the IOLA account, using the funds to pay this client's personal and business expenses.
On November 14, 2007 respondent allowed a partner at his firm to deposit $450,000 belonging to a second firm client into his IOLA account. The funds were intended to satisfy that client's tax obligations. Between November 14 and November 23, 2007, respondent, by authorizing his bookkeeper to make withdrawals from the IOLA account, allowed $107,585.98 belonging this second client to be used to satisfy the first client's obligations. Respondent was unaware that the first client had insufficient funds in the account to cover his obligations and attributed the mistake to his bookkeeper's unfamiliarity with IOLA accounts.
...respondent expressed remorse for his actions and made it clear that he understood that an IOLA account could not be used as a business account. Respondent also testified about his charitable endeavors including his work as president of the New Jersey chapter of the United Cerebral Palsy. The Referee also heard from New Jersey Superior Court judge Paul Armstrong, who having known respondent for 35 years, testified that his behavior was aberrational, and that respondent had always adhered to high ethical and professional standards. Lastly, Jerry Carp, an attorney, testified on respondent's behalf, averring that he had always been forthright and possessed great integrity...
While in this case the respondent was not attempting to shield his own assets from liens levied against his personal assets, his conduct, intentionally designed to avoid the attachment of a tax lien, is no less egregious and involves dishonesty, fraud, deceit, or misrepresentation, violation of DR 1-102(a)(4) of the Code of Professional Responsibility. Suspension, rather than public censure is therefore warranted.
Can't See The Forest (Or The Conflict) For The Trees
An Illinois Hearing Board has recommended a censure of the former chief counsel to the Cook County Forest Preserve Division for representing a private client (an employee that he supervised while serving as a public officer) in matters that were substantially related to his public responsibilities.
The attorney oversaw the Forest Preserve Division's disciplinary matters. The employee had been involved in a dispute with a fellow employee.
Although Respondent was not involved in any controversy between [his client] Williams and Dennis White (as Respondent had left the Forest Preserve District by the time those issues arose), he was involved with William's employment matters during his tenure as chief counsel of the District. In that capacity, he was familiar with Williams' employment history, had discussions with the chief financial officer regarding budgeting for her position, and directly supervised her work after she joined the legal department. As the ranking legal officer, he also would have been privy to the District's views on litigation and the handling of employee disputes and discipline. In his December 2006 memo to the human resources department, Respondent discussed the reasons for Williams' transfer, expressed his opinion that she had not done anything to warrant termination, advised that such action could be viewed as a retaliatory measure, and recommended that a solution be found that did not involve Williams' termination.
We conclude that Respondent's knowledge of a memo that was favorable to Williams, as well as his familiarity with the thought processes, priorities and vulnerabilities of the Forest Preserve District in relation to Williams, could have affected his decision to bring suit on her behalf and could have provided an advantage in his litigation and/or settlement strategy. We note that, in drafting the federal court complaint, Respondent included allegations relating to Williams' transfer to the legal department and the reasons for the transfer. While he testified the allegations were included as background information only, we believe a reasonable person could infer a pattern in the way Williams was treated by the District.
We believe Respondent was shortsighted in failing to anticipate at the outset of his representation of Williams that her former situation could become an issue in subsequent litigation or in potential settlement discussions. He acknowledged he ultimately withdrew from representing Williams in federal court, in part, because of concerns that he might be called as a witness. Respondent's recognition of a potential problem regarding his representation of Williams is telling and, in our minds, further cements the nexus between Williams' earlier employment issue and the cause of action asserted in her lawsuit.
The board rejected charges of dishonesty, false statements and unauthorized practice. (Mike Frisch)
February 4, 2013
Silence Of The Magistrate
A recent judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL
OPINION NO. 01 - 2013
RE: The propriety of a full-time magistrate being an active member of the FBI National Academy Associates, Inc.
A full-time magistrate is a retired law enforcement officer and graduate of the FBI National Academy. The magistrate has expressed interest in joining, as an active member, the FBI National Academy Associates, Inc. (“the Organization”). The Executive Board and general membership of the Organization are comprised entirely of active and retired law enforcement officers who are also graduates of the FBI Academy. The South Carolina Chapter of the Organization rotates monthly dinner meetings hosted by law enforcement agencies, including federal, state, and local agencies. While the Organization is a non-governmental agency, and not affiliated with the FBI, it does provide training and networking to members. The magistrate does not intend to take part in the training aspect, but would be focused on the social aspect only. The magistrate inquires into the propriety of joining this Organization.
A full-time magistrate should not become a member of the FBI National Academy Associates, Inc.
The Code of Judicial Conduct requires a judge to act in a manner “that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2A., Rule 501, SCACR. The commentary to Canon 2 explains that a “judge must avoid all impropriety and the appearance of impropriety.” Additionally, a judge should conduct his or her extra-curricular activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Canon 4A(1).
Because the Organization’s members include active law enforcement officers, the magistrate’s membership in such a group (even if the magistrate’s participation is limited to the Organization’s social functions) could create the appearance of partiality and impropriety. Thus, membership in the Organization would violate the Canons.
A judge who interceded and dismissed a traffic ticket issued to the daughter of another judge has been found to engaged in ethical misconduct by an Illinois Hearing Board. The judge dismissed the case by falsely representing the position of the prosecutor.
The board recommends a six-month suspension.
The board summarized its conclusions:
...we conclude that a suspension is appropriate in this matter. To paraphrase what the Review Board said in the Hays case, quoted above, this is a sad episode in a long and respectable career, but it is elementary that a judge cannot knowingly dismiss a case by making false representations in a court order. We believe that a suspension of six months is adequate for the public to have confidence that dishonesty by a judge will not be tolerated, and to serve as a deterrent. We also believe that a suspension of less than six months would not serve to preserve public confidence in the courts or the legal profession, nor would it sufficiently impress upon others the seriousness of the misconduct in this case.
Illinois Homepage.net reported that the judge took early retirement because of the incident. (Mike Frisch)
Disbarment Proposed For Attorney Who Challenged Specialization Rule
An Illinois Hearing Board has recommended the disbarment of an attorney convicted of bankruptcy fraud and child pornography:
The misconduct of the Respondent involved moral turpitude and was most egregious and disgusting. He knowingly engaged in fraud during his own bankruptcy proceeding and knowingly possessed child pornography. The child pornography consisted of sexually explicit photographs of the Respondent's then 16-year old sister-in-law. The Respondent took those photographs in 1974 and retained them until they were seized by law enforcement officials in 2006. Moreover, the Respondent threatened to deliver the child pornography to the parents of his ex-wife and former sister-in-law unless his ex-wife abandoned her challenge, as a named creditor, in his bankruptcy case and agreed to a new financial settlement to benefit Respondent in their Illinois dissolution of marriage case.
The attorney once prevailed in the United States Supreme Court when charged with violation of Rule 7.4 (communication of fields of practice and specialization).
The Rule was amended after the court's decision. (Mike Frisch)
Hard To Understand
The Louisiana Supreme Court has suspended a district court judge without pay for one year.
The court conceded that the case "involves circumstances which we admittedly find very hard to understand."
The circumstances had to do with a defendant that the judge had sentenced for cocaine distribution and an ongoing fued with a fellow judge.
The court found that the judge should have recused himself and had engaged in ex parte communications.
The court rejected the Judiciary Commission's recommendation for removal from office.
Justice Knoll dissented from the suspension sanction and was unimpressed with the "fueding judges" aspect of the case. Justice Knoll felt the the court should "pay no heed to petty squabbles based merely on speculation and extrapolation." (Mike Frisch)
Slip Up Leads To Reprimand
The Georgia Supreme Court has approved a public reprimand in a case where the attorney "mistakenly provided the wrong deposit slip for a litigation funding check to one of his clients, so the check was incorrectly deposited into [his] firm operating account rather than his IOLTA account."
As a result, a check that the attorney wrote to himself bounced.
The attorney had a practice of depositing personal funds into the escrow account "so that when settlements were finalized, he could immediately distribute the client proceeds without waiting for the drafts to clear."
The State Bar had opposed reprimand.
The court noted that the attorney had changed his escrow practices "without waiting for the State Bar to ask..." (Mike Frisch)