February 16, 2013
Uncapped Hourly Fees Not Unreasonable In Domestic Relations Matters
In a lengthy report worthy of more than a cursory review, a Louisiana Hearing Committee rejected the vast majority of excessive fees charges brought against an attorney by the Office of Disciplinary Counsel ("ODC").
The committee found only two violations of Rule 1.5 and recommended a public reprimand.
The fighting issue in most of the cases was whether the attorney's hourly charges in domestic relations cases were excessive. ODC did not allege that the billings were false; only that it was way too many hours.
The committee rejected the approach:
While ODC has asserted innumerable factual and legal bases for its formal charges, few were well founded. Overall, ODC failed to prove that the work performed by Respondent, his partners, his associates or staff was unnecessary or otherwise performed solely for the purpose of running up the bill to the detriment of his clients. [ODC] established that Respondent's fees exceeded, sometimes far exceeded, that of his opponents...
Respondent was successful in proving to this Committee that [a number of factors] justified the work performed and the fees charged.
ODC agreed that the attorney's hourly fee rates were reasonable.
The committee noted that Respondent's clients had the means to pay his fees and wanted no stone left unturned on their behalf. Further, no client had complained about the attorney's bills until much later and the late-blooming complaints might reflect "buyer's remorse." It also rejected the testimony (and perceived hand in the prosecution) of a former litigation opponent against whom the attorney has an unsatisfied multi - million dollar judgment.
Because the attorney prevailed against most of the allegations, the committee declined to recommend that he pay the costs of prosecution.
The committee had some "concluding remarks" about the prosecution, which it viewed as a dispute over the attorney's "business model" of charging uncapped hourly fees in domestic relations matters. The committee clearly viewed the conduct as permitted under the present Rules. (Mike Frisch)
February 15, 2013
A Mine Of Gold
An attorney who made material misrepresentations in securities offerings relating to his gold mining interests was disbarred by the Kansas Supreme Court.
The court noted that the attorney's misrepresentations led to his obtaining control over $2.6 million of investor funds.
Further, the court found little or no mitigation. The attorney's expressions of remorse met deaf ears in light of the fact that he has only repaid $500 of the investors' $2.6 million. (Mike Frisch)
Reprimand For Former Judge Who Signed But Did Not Read Orders
From the web page of the North Carolina State Bar:
Kristen H. Ruth of Raleigh, previously a district court judge, was reprimanded by the Wake County Superior Court. Ruth, who resigned amid allegations that she signed fraudulent orders submitted by James Crouch, pled guilty to one misdemeanor count of failure to discharge her duty. The court found that Ruth did not read the orders and was unaware they were fraudulent.
The page further reports that Crouch as convicted of criminal offenses and disbarred.
WRAL.com had this report. (Mike Frisch)
Issue Preclusion In Bar Discipline
The Iowa Supreme Court has imposed a suspension of 60 days in a matter involving ethical violations committed by an attorney in his own divorce and an unrelated fee dispute.
In the divorce case, the district court found that the attorney engaged in extrinsic fraud by concealing two contingent-fee matters from his spouse. The finding was affirmed on appeal.
The court here found that issue preclusion prevented the attorney from contesting the extrinsic fraud finding. However, the court found that ethics rules governing advocacy did not apply to a represented attorney in his own divorce.
The other matter involved taking a fee while there was a dispute. (Mike Frisch)
Unethical To Enter Confidential Settlement And Not Disclose Terms To Clients
An attorney represented a neighborhood group that included 64 individuals in connection with damages to houses and personal injuries caused by an explosion at a plant.
The attorney learned at a deposition that ten of the clients already had settled their claims.
When a global settlement was reached, the attorney failed to advise the clients of all aspects of the resolution and took it upon herself to devise (and not disclose) her formula or determining the distribution of proceeds.
She contended that the terms of the settlement were conidential in justifying the non-disclosure to the clients.
The Indiana Supreme Court rejected the confidentiality defense and imposed a public reprimand.The court accepted the hearing officer's conclusion that the representation of both settling and non-settling clients violated conflict of interest rules.
The Disciplinary Commission had sought a suspension.
The court noted that the attorney had a spotless disciplinary record and that the clients expressed gratitude for her efforts. (Mike Frisch)
February 14, 2013
Justice For Oysters
In a case that involved the dismissal of five tickets alleging oyster-harvesting violations, the Mississippi Supreme Court has publicly reprimanded a county justice for what the court characterized as ticket fixing, conduct involving moral turpitude.
The defendant and his brother-in-law (who had played sports with the justice) visited the justice at home unannounced after the tickets were issued. The testimony of the three participants as to what was said was found to be incredible. The visit was never disclosed to the prosecutor.
The cases were dismissed by the justice, allegedly because the had officers failed to appear. In fact, they were present in court.
Mississippi Business Journal had this story on the recommendation for suspension by the Commission on Judicial Conduct. (Mike Frisch)
Judicial Workplace Safety A Concern For Wisconsin Justice
Justice Ann Walsh Bradley has recused herself from the judicial misconduct complaint brought against her colleague Justice David T. Prosser, Jr.
Justice Bradley noted that the recusal motions involved
procedural maneuvers, designed to foreclose any opportunity for a public hearing, have deprived this court of a quorum and may deprive the people of this state a full opportunity to learn what happened when four justices simultaneously appeared at my office on the everning of June 13, 2011, demanding that an after-hours press release be immediately issued.
Further: "This is and remains for me an issue of workplace safety."
Justice Bradley describes the encounter and accuses other justices of "spinning the facts" in the media. She states that the incident was not isolated but part of a history that "escalated from tantrums and rages, to threats, and now to physical contact."
She details her concerns for and efforts to protect her personal safety and states that she and the Chief Justice still lock their private offices out of safety concerns.
Justice Bradley calls upon the court to reform judicial discipline processes both generally and in this matter. (Mike Frisch)
Qualified Privilege In Defamation Action Against Florida Attorney
The Florida Supreme Court has held that a qualified, not absolute, privilege applies to alleged dafamatory statements made by an attorney in ex parte, out-of-court statements "so long as the alleged statements bear some connection with the subject of inquiry in the underlying lawsuit."
The plaintiff must show express actual malice to recover.
No privilege attaches to statements unrelated to the lawsuit.
The conduct at issue involved conduct of an attorney who was investigating a defamation action he was hired to defend. The attorney's statements were allegedly made during his investigation.
There are dissents. (Mike Frisch)
Fee Sharing And Other Misconduct Draws Indefinite Suspension
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the law license of Cleveland attorney Gary Ray Axner for neglect of five separate legal matters, failure to reasonably communicate with some of those clients, employment of a suspended attorney without notifying the proper authorities of that relationship, and initially failing to cooperate with the investigation of his misconduct.
In a 7-0 per curiam decision, the court adopted findings by the Board of Commissioners on Grievances & Discipline that in two bankruptcy cases, Axner accepted fee advances from clients and then completely neglected or failed to complete the necessary legal work to obtain a bankruptcy decree for 17 months in one case and more than three years in the other. In both instances, the court found that Axner repeatedly ignored or evaded client inquiries about the status of their cases, and when the clients were able to reach him, made false and misleading statements to them indicating that resolution of their cases was imminent.
The court also adopted board findings that Axner engaged in an ongoing course of misconduct by employing Howard Schuman, a former attorney whose license was suspended in 1998 and has never been reinstated, for 14 years without disclosing that relationship to the Office of Disciplinary Counsel as required by state bar governance rules. The court also found that, on multiple occasions, Axner improperly shared fees with Schuman despite his status as a non-attorney, and allowed Schuman to meet independently with clients and their creditors in Axner’s place in violation of administrative orders and local court rules.
In imposing an indefinite license suspension as the appropriate sanction for these and other rule violations, the court noted the mitigating factor that Axner has no prior record of disciplinary infractions and the aggravating factors that he engaged in a pattern of misconduct involving multiple rule violations, acted with a selfish motive, and took advantage of vulnerable clients.
As a precondition for applying for reinstatement of his license after Feb. 14, 2015, Axner must demonstrate that he has entered into and fully complied with a substance abuse contract with the Ohio Lawyers Assistance Program.
The opinion is linked here. (Mike Frisch)
February 13, 2013
Billing Six Hours For Preparing Bill Is Unreasonable
The North Dakota Supreme Court imposed reciprocal discipline based on an attorney's Wisconsin suspension.
The court described the Wisconsin findings:
...misconduct in his representation of clients in a bankruptcy matter for failing to timely respond to his clients' request for information concerning the status of the bankruptcy and for a bill; charging unreasonable fees when Kitchen's bill included an hour of time to retrieve the file from storage and six hours of time to prepare the bill itself; failing to maintain the requisite degree of documentation to permit identification of trust account transactions and the periodic balances on hand for each client; failing to submit the requisite records to the Wisconsin Office of Lawyer Regulation to assist in its investigation; and misleading the Wisconsin Office of Lawyer Regulation by suggesting on several occasions that he was sending the necessary documentation but later conceding that he did not have it.
Lost Vacation, License Suspension
A Utah vacation during which an attorney "drank to oblivion" led to a criminal conviction and a nine-month suspension from the South Carolina Supreme Court.
The attorney was a passenger in a vehicle pulled over by the police. He advised the driver not to cooperate and berated the officer. He refused to exit the vehicle as directed and locked the doors. The officer tried to TASER him but it did not function properly. He fought with police after he was pulled out. He bit one of the officers on the arm.
The attorney was convicted of two counts of assault, interference with a police officer making a lawful arrest and failure to disclose his identity.
The court viewed the dash camera video as part of its review of the case.
The court found that the attorney's drinking explained but did not excuse he misconduct. The suspension was imposed nunc pro tunc t o an interim suspension. (MIke Frisch)
Actually Not In Pennsylvania
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Columbus attorney...for violations of professional conduct rules in her dealing with three clients, and for failing to cooperate with the investigation of her misconduct, including failing to appear for a scheduled hearing before a state disciplinary panel.
The court adopted findings by the Board of Commissioners on Grievances & Discipline that in one case the attorney ] forged the signature of a client on two documents and then notarized those signatures. The court also found that [the attorney] provided incompetent and negligent representation to clients in two divorce cases, misinformed the clients about the status of their cases, and repeatedly failed to appear for scheduled hearings, causing significant harm to her clients and months of needless delay in the resolution of their legal affairs.
In imposing an indefinite license suspension as the appropriate sanction for these and other rule violations, the court noted the aggravating factors that [the attorney] acted with a dishonest or selfish motive, engaged in a pattern of misconduct, failed to cooperate and engaged in deceptive practices during the disciplinary process, refused to acknowledge the wrongful nature of her conduct, harmed vulnerable clients, and refused to make restitution to a client.
Pursuant to today’s decision, [the attorney] will be ineligible to apply for reinstatement until Feb. 13, 2015. As preconditions for considering an application for readmission after that date, [the attorney] must refrain from any misconduct during the suspension period, demonstrate that she has made restitution to her client, complete a mental health and substance abuse evaluation by the Ohio Lawyers Assistance Program or a professional approved by the Office of Disciplinary Counsel, and demonstrate compliance with all recommendations arising from that assessment.
In one matter, the attorney advised the client that the filing of her divorce was delayed because she was "actually in Pennsylvania." Actually, the attorney was in an Ohio court that day on the other divorce case that led to discipline.
The opinion is linked here. (Mike Frisch)
Toys For Court OK If Not Solicited
A recent opinion from the Florida Judicial Ethics Advisory Committee:ISSUES
May a judge assigned to a dependency division permit groups or persons to donate items for children to play with while the children are in court?
ANSWER: Yes, as long as neither the judge nor the judge’s court personnel solicits the donations.
We opine that a judge assigned to a dependency division may permit groups or persons to donate items for children to play with while the children are in court. Allowing such donations likely would improve the administration of justice by aiding the judge’s ability to control the courtroom. See Fla. Code Jud. Conduct Canon 4B Commentary (“As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to . . . the improvement of justice in the areas of . . . juvenile dependency.”)
However, we opine that neither the judge nor the judge’s court personnel may solicit the donations. Code of Judicial Conduct Canon 4A states, in pertinent part, that a judge shall conduct all quasi-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially;
(2) undermine the judge’s independence, integrity or impartiality;
. . .
(6) appear to a reasonable person to be coercive.
Soliciting donations from groups or persons who appear before the judge may convey the impression that the judge will favor those who donate. Soliciting donations from groups or persons, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate.
February 12, 2013
Disbarment Proposed Despite Mitigation
The California State Bar Court Review Department has recommended that an attorney be disbarred for misappropriating over $136,000 from five clients.
The Review Department noted substantial mitigation.
The attorney had "practiced law in California for over 25 years without incident until a traumatic personal crisis caused him to deteriorate emotionally and professionally, resulting in a serious decline in his previously productive practice." The attorney admitted the misconduct and argued that disbarment was an excessive sanction given the mitigation.
The attorney had been a "highly regarded" personal injury lawyer with a record of public service.
The tragic circumstances involved his eldest daughter, who was drugged and raped at a party. The daughter later revealed that she was also raped by a family friend.
The attorney's marriage suffered, he began to drink heavily at the office and his income declined due to the resulting lack of productivity.
He took money from his retirement savings and his wife's inheritance. When that ran out, he "turned to his client trust account." (Mike Frisch)
Casting Fate (And License) To The Wind
The New York Appellate Division for the Fourth Judicial Department has disbarred an attorney who disbursed $80,000 of a gravely ill client's trust funds to his own spouse, who was an employee of his law firm.
Weeks later, the client died. The attorney claimed the transactiobn was a loan repayable in 60 monthly installments. The "loan" was not repaid and the client's estate sued to recover the amount taken from the escrow account.
The attorney admitted that he engaged in a conflict of interest and failed to disclose material facts to the client. He had a prior record of eight letters of caution, an earlier suspension and had failed to respond to the ethics charges, which "demonstrates a total disregard for his fate as an attorney and his professional obligations to his former clients."
The court found that the attorney had engaged in conduct involving wilfull misappropriation. (Mike Frisch)
February 11, 2013
Innocent Of Murder But Hounded Out Of Louisiana
In a case that was characterized as a "no good deed goes unpunished" situation, a Louisiana Hearing Committee has recommended a stayed six-month suspension of an attorney who handled two matters for friends while on inactive status.
The committee noted that the attorney had practiced since 1984 and had no prior discipline.
He left Louisiana in 1989 as a result of a "vicious and gruesome murder of family friends in Shreveport, in which he had no part or involvement, but for which he was relentlessly pursued by investigating authorities." The accusations made his law practice unprofitable.
He returned to care for his father after a severe stroke.
No Reversal For Prosecutor Whispering In Closing argument
The Washington Court of Appeals, Division Two found prosecutorial misconduct but declined to reverse a criminal conviction.
Among the violations - the prosecutor stood close to the jury and whispered inaudibly in closing argument.
The court majority found that the judge's resulting instruction to the prosecutor to repeat what was said was insufficient.
The opinion lays out in painful detail the acrimonious relationship between prosevutor and defense counsel.
There is a dissent
I am satisfied that the prosecutor's personal attacks on defense counsel, labeling counsel's closing argument a "crock," and his characterization of Holmes and her testimony ("funny, "disgusting," and "comical") engendered prejudice which infected the whole trial. Emery, 174 Wn.2d at 762. I am also unwilling to gloss over the prosecutor's improper discussion of the burden of proof and reasonable doubt in closing, and his whispered comments to the jury. I would reverse and remand for new trials for both [defendants].
Judge Censured Over Dissents Favoring Removal
The New York State Commission on Judicial Conduct has released its December 13 opinion censuring a judge who facilitated the criminal conduct of an attorney who he had appointed to administer numerous estates.
There are impassioned dissents that convincingly argue that removal from office is the only appropriate sanction.
From Member Emery:
In asserting that mitigation supports censure rather than removal, the best the majority can muster is the very essense of respondent's misconduct - that "respondent's judgment was clouded by his long professional relationship with an attorney who had served as counsel for several decades." Why the majority has lost its bearings in this case is a total mystery to me. Perhaps it is unduly influenced by the impending end od respondent's term. Id so, say so. Perhaps the dismissal of several other charges based on the Referee's findings influenced my colleagues. Perhaps respondent's engaging personality at our hearing clouded clear judgment. Or perhaps excellent lawyering on his behalf led the majority astray. I am perplexed and disappointed in the lack of accountability this case will convey to others. (citations to record omitted)
What I do know is that this is one of the most egregious cases that has ever been litigated before this Commission during the nine years that I have served. To allow respondent to escape removal on these undisputed facts out of deference or undue leniency toeards a retiring judge degrades our function to a degree I have not yet witnessed. Respondent's favoritism towards [attorney] Lippman should not be compounded by our favoritism towards him.
Links to the records of the proceedings may be found here. (Mike Frisch)
The Maryland Court of Appeals has disbarred an attorney who engaged in misappropriation and other violations.
The court found "no credible mitigating factors" but several aggravating circumstances:
An aggravating factor is that Respondent has been previously subject to disciplinary consideration and was, about the time that he was committing some of the present violations of the rules, or just prior thereto, actually participating, or had just participated, in a Conditional Diversionary Agreement with the Attorney Grievance Commission. That agreement included him atending a session on the financial management of a law firm. He learned little, if anything, apparently, about financial management from that session.
He also failed to appear for a depostion and "was continually late in appearing at the hearings" in the disciplinary matter. (Mike Frisch)
Cell Phone Carelessness Sufficient For Negligent Homicide
The New Hampshire Supreme Court has affirmed a conviction for negligent homicide committed by a driver who struck a pedestrian.
The defendant failed to yield to the pedestrian in a marked crosswalk.
The court rejected the argument that "using a cellular telephone while driving does not constitute the requisite wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence..."
Rather, the court concluded that the evidence establishing carelessness was sufficient to sustain the conviction.
The court also rejected the suggestion that court had committed error by admitting the defendant's cell phone records for the period of over one-half hour prior to the impact.
The Boston Glode reported that the Supreme Court argument was held at a high school. (Mike Frisch)