Saturday, May 31, 2014

Oregon Rejects Fiduciary Exception

The Oregon Supreme Court held that a law firm's communications with in-house counsel were protected from disclosure from the now-former client.

The court reversed an order of production based on the so-called "fiduciary exception" to the attorney-client privilege

We conclude that OEC 503(4) was intended as a complete enumeration of the exceptions to the attorney-client privilege. Insofar as that list does not include a “fiduciary exception,” that exception does not exist in Oregon, and the trial court erred in relying on that exception to compel production of communications that otherwise fell within the general scope of the privilege. It follows that the trial court’s order must be vacated to the extent that it orders production of communications that were otherwise within the privilege. 
 
The litigation involved a dispute between Davis Wright Tremaine and a former client. (Mike Frisch)

May 31, 2014 in Current Affairs, Privilege | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Loan To Brother Draws Proposed Suspension

The Illinois Review Board has recommended a 30-day suspension for what it characterized as a sympathic misappropriation

The sole issue in this matter is the appropriate sanction for an attorney who knowingly misappropriated approximately $1,300 in client funds, albeit for an arguably sympathetic reason. Respondent gave the client funds to his brother who had requested a loan to pay medical bills for his children, one of whom was ill. Respondent knew when he took the funds that his actions were wrong. After the client complained to the ARDC, Respondent paid the amount owing to the client. The client was not aware that Respondent had used a portion of his funds.

The brother had promised to restore the money within two days but did not.

The funds at issue were settlement proceeds held for an incarcerated client. (Mike Frisch)

May 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Permanent Disbarment Proposed For Tax Crimes

Permanent disbarment has been proposed by the Louisiana Attorney Disciplinary Board of an attorney convicted of conspiracy to defraud the United States and related offenses

Although Respondent in the instant case does not have a history of prior discipline, his misconduct is far more egregious than that in Thomas. He embezzled over $3,000,000 in funds from his client’s trust, stole fees from Bank One that would not otherwise have gone to him or his co-conspirators, and avoided paying federal taxes on these sums. Moreover, Respondent’s actions in connection with the "HOMER" tax shelter generated over $100 million in tax losses to the IRS.

Details from the Department of Justice

Chicago attorney and Certified Public Accountant John B. Ohle III and Louisiana attorney William Bradley were found guilty Wednesday in Manhattan federal court of wire and tax fraud conspiracy charges stemming from a scheme to fraudulently obtain referral fees relating to a tax shelter sold by Ohle’s employer, Bank One, and thereafter failing to accurately report those fees to the IRS and pay the appropriate taxes due, announced Preet Bharara, U.S. Attorney for the Southern District of New York; John A. DiCicco, Acting Assistant Attorney General for the Justice Department’s Tax Division; and Charles R. Pine, Special Agent-in-Charge of the New York Field Office of the Internal Revenue Service, Criminal Investigation Division (IRS). In addition, Ohle was found guilty of two counts of tax evasion which also encompassed failure to report millions of dollars he embezzled from a trust, and fraudulent tax shelter deductions used to offset reported income.

According to the evidence at the three-week trial before U.S. District Judge Jed S. Rakoff: Between 1999 and 2002, Ohle was the supervisor in the Chicago office of Bank One’s "Innovative Strategies Group" (ISG). The ISG provided estate planning and tax shelter strategies for high net worth clients, including a tax shelter called "Hedge Option Monetization of Economic Remainder," or HOMER, which Ohle and others designed, marketed and implemented together with attorneys at the now-defunct Chicago and Texas law firm of Jenkens & Gilchrist.

Ohle and others at Bank One had agreed with attorneys at Jenkens & Gilchrist to pay referral fees to third parties who referred HOMER clients to Bank One, which would be paid out of Bank One’s tax shelter fees. Ohle and Bradley – who had met each other while they both studied for the Louisiana bar exam in the mid-90’s – conspired with others, including Douglas Steger, a Chicago businessman, to create false and fraudulent invoices to obtain referral fees for certain HOMER tax shelter transactions to which they were not entitled. The secret receipt by Ohle and Bradley of the referral fees served to reduce the total tax shelter fees that Bank One was paid as a result of the sales of the HOMER tax shelter.

Ohle, Bradley and Steger carried out the scheme to fraudulently obtain the referral fees through the use of Bradley’s and Steger’s bank accounts, as well as the bank account of another business acquaintance of Ohle’s in San Francisco. Ultimately, Ohle received over $800,000 of these fraudulently obtained referral fees, while Steger and Bradley were paid approximately $215,000 and $25,000, respectively. Steger, who previously pleaded guilty in July 2008 to tax charges related to the scheme, also schemed with Ohle to report on his own tax return fraudulently-obtained fees that should have been reported by Ohle, and then eliminated taxes on those fees and the fees Steger retained himself through the use of a fraudulent tax shelter referred to as "1256" and made available by Ohle.

Ohle directed Bradley to pay a Chicago businessman $184,000 of the false and fraudulent referral fees that Bradley helped generate, which the businessman reported on a corporate return but on which he paid no taxes because he claimed false expenses on that return, at Ohle’s suggestion.

Ohle also obtained by fraud over $4,000,000 from a client for whom he acted as trustee. A portion of those funds were used by Ohle to carry out the fraud on Bank One with respect to the tax shelter referral fees. And Ohle also secretly obtained $500,000 in profits from the HOMER tax shelter transactions through a childhood friend who he had inserted into the transaction, with the agreement to share the profits with Ohle. Ohle failed to report the $500,000 as income on his tax returns, scheming to have his friend report both his and Ohle’s profits, and arranging for a fraudulent "1256" tax shelter to be used to eliminate taxes on all the profits.

(Mike Frisch)

May 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Than Six Months

The Florida Supreme Court accepted findings of misconduct but rejected a referee's proposed six-month suspension in favor of a three-year term.

Respondent has engaged in serious misconduct. In Count I, he refused to provide the client with an accounting of the funds held on retainer, despite repeated requests from both the ex-client and her new counsel. Also, after the client discharged Respondent, he did not return any of her funds for years, even though she sought return of her funds numerous times. In Count II, Respondent knowingly filed a fraudulent document in court.

A dissent from Justice Labarga would rachet the sanction up to disbarment

Although a sanction that provides an opportunity for rehabilitation is often an appropriate way to address attorney misconduct, the circumstances of this case militate against such consideration. First, Mr. Ross has been an attorney for more than three decades. Rather than operate as a factor in favor of leniency, his length of experience actually aggravates the nature of his conduct because he cannot rely on inexperience or lack of knowledge as to the high standards held for attorneys. Second, Mr. Ross’s disciplinary history reflects a prior thirty-day suspension. See Florida Bar v. Ross, 797 So. 2d 589 (Fla. 2001) (table). Therefore, the conduct for which Mr. Ross is now held to account leaves significant doubt as to any prospect of rehabilitation. Combined with his prior history of disciplinary action, Mr. Ross’s unacceptable acts of misconduct lead me to the inescapable conclusion that disbarment is the appropriate remedy. Therefore, I dissent.

 (Mike Frisch)

May 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Resignation For Harboring Fugitive Who Was Working In His Law Office

The Oklahoma Supreme Court accepted the resignation of an attorney who faced allegations set forth in the court's order.

Blasdel states he is aware of the grievance against him currently being investigated by the Office of the General Counsel. The allegation is that on or about January 29, 2013, Blasdel committed the crime of harboring a fugitive and actively concealing her from Sheriff's Deputies attempting to arrest her at his law office.

NewsOK had the February 2013 story

Blasdel is accused of harboring Gale Lynn Crislip, 55 over a period of several months, according to a probable cause affidavit.

Prosecutors allege Blasdel hired Crislip with the knowledge that she was a fugitive and then actively concealed her from law enforcement.

Crislip was taken into custody Jan. 28 by members of a warrant team looking for her at Blasdel's law office.

Crislip was charged in September with embezzlement. She is accused of taking a vehicle from an employer and not returning it, police reported.

Crislip, according to a probable cause affidavit, greeted a deputy sheriff at Blasdel's office and then walked out of view. Blasdel then approached officers, who told him they were there to see Crislip because they had a warrant for her arrest.

In November, a prosecutor asked Blasdel to surrender Crislip but he declined to do so, records show.

The warrant was signed by a judge in September, court records show.

Blasdel said he was taking a nap and had not seen Crislip, according to the affidavit. A search revealed Crislip was hiding in a locked office Blasdel told deputies he didn't have the key.

Crislip was arrested and released from the Oklahoma County jail the following day. She could not be reached for comment Monday.

(Mike Frisch)

May 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sent Me No Flowers: Suit Against West Virginia State Bar Dismissed

The West Virginia Supreme Court of Appeals affirmed the dismissal of a civil suit brought by a former longtime employee of the State Bar.

The plaintiff worked for the State Bar for over 25 years.

The issues in the litigation related to the conduct of the Executive Director of the Bar.

The plaintiff alleged that, after being hired for the position,  the Executive Director consistently criticized the past work of the office. The suit alleged that the behavior of the Executive Director drove her to early retirement at the age of 62 in 2011.

Ms. Blessing alleges that almost immediately upon becoming the Executive Director, Ms. Casey began criticizing how the State Bar was operated during the prior twenty years. Ms. Blessing alleges that Ms. Casey constantly belittled and disparaged her work performance and compensation, as well as that of three other State Bar employees, telling them they were “undereducated,” “overpaid,” and that almost everything they had done in the past was wrong. The Amended Complaint also asserts that Ms. Casey did not send flowers or other condolences after Ms. Blessing’s husband and mother died; made Ms. Blessing wade through sewage when a sewer line broke in the office; forced her to reschedule her knee surgery three times; made her work from the hospital after her knee surgery, and then refused to credit her leave time for this work; did not allow her to take the day off after herhusband died, even though she had sufficient accumulated leave time to do so; directed her to curtail her workplace conversations with State Bar members about their families  personal matters; ended the staff members’ participation in a deferred compensation program; told the staff that other people “would kill” to have their lucrative jobs; and offered no assistance to either restore a quarterly report that was deliberately deleted from Ms. Blessing’s office computer, or to determine how the deletion had occurred.

The court concluded that claims of harassment and intentional infliction of emotional distress were barred by the statutes of limitations. There was insufficient evidence to support the age discrimination claim,

The West Virginia Record had this earlier report on the suit. (Mike Frisch)

May 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Safe At Home

A judicial ethics opinion from South Carolina addresses this question

A full-time Magistrate  judge inquires into the propriety of serving  as the head baseball coach for a high school or an American Legion team.   The high school team is funded by the school  district which also pays the coach’s salary.   The high school team is also supported by a booster club that has  fund-raising projects.  The American  Legion team is funded by donations and  sponsors, and the judge’s coaching position is an unpaid, volunteer position.  The judge does not solicit sponsors or  donations.  The team’s general manager handles  all donations, sponsors, and bookkeeping.   However, the team does hold several fund-raisers, for which the judge  participates in planning and operations.   One fund-raiser was a golf tournament for which a flyer was produced  asking for hole sponsorship; the judge’s name (with no reference to judicial  office) was one of several others listed as persons to contact regarding the  tournament. 

It's OK with a caveat

Here, if the judge  does continue employment with the high school, the judge should not actively  solicit funds on behalf of the booster club, though the judge may assist the  booster club in planning fund-raisers.  If the judge observes the Canons on  fund-raising, there is no violation against employment as a high school  baseball coach.

  As the coach for the American Legion  team, it appears that the judge would only be involved in planning the  fund-raisers, and not in any active solicitation. Moreover, the flyer listing  the judge as one of the tournament organizers for the legion team is akin to  the use of letterhead for fund-raising and, since the judge’s office is not  included on the flyer, there is no violation of the Canons.  Therefore, the judge may serve as an unpaid  volunteer coach for an American Legion baseball team, provided that the judge  continue to observe the limitations on fund-raising.

(Mike Frisch)

May 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Two Year Suspension For Former Ohio Bar Association President

From the web page of the Ohio Supreme Court

In a...disciplinary case  involving an attorney from Gates Mills, the Supreme Court suspended Leslie W.  Jacobs for two years because of a 2012 felony conviction for filing false  tax returns. The court has given Jacobs credit for the time he already has been  suspended on an interim basis following that conviction.

While working as the senior  partner at a large law firm, Jacobs inflated his deductions for business  expenses when filing his own tax returns for tax years 2004 to 2007. Among his  improper deductions: he reported expenses, such as travel on client matters,  that had already been reimbursed by his firm; he deducted meals and  entertainment at 100 percent of the costs, knowing that only 50 percent was  eligible as a business expense; he claimed expenses that are not deductible,  such as private club memberships, personal meals, and personal uses of the  clubs; and he deducted costs for two leased vehicles entirely as business  expenses even though he used the cars for personal reasons and had been  reimbursed from his firm for business mileage.

According to the court’s  unanimous per curiam opinion: “In  the false returns for those four years, Jacobs understated his taxable income  by $256,380 and overstated his expenses by $253,256, resulting in unpaid taxes  of $75,385.”

Jacobs pled guilty in November  2011 to a federal charge of filing false tax returns. The next April, the Ohio  Supreme Court suspended him for an interim period from practicing law.

Jacobs paid the unpaid  taxes the day he was sentenced, served a one-year prison term, completed home  confinement and supervised release, and paid a $10,000 fine. Given these  penalties and the fact that Jacobs had no prior disciplinary record, cooperated  in the disciplinary proceedings, acknowledged that his conduct was wrong, and  has been active in the legal community as a former Ohio State Bar Association  president and as an officer and committee chair for the American Bar  Association, the court determined that the appropriate sanction is a two-year suspension  with credit for the time he has served since the 2012 interim suspension.

2013-1230. Disciplinary  Counsel v. Jacobs, Slip  Opinion No. 2014-Ohio-2137.

Details here from Pat Galbincea of the Plain Dealer. (Mike Frisch)

May 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Worrisome Precedent For Junior Attorneys

The Maryland Court of Appeals has ordered a suspension of 60 days of an attorney who has "misrepresented [her] legal experience on a resume and job proposal to gain employment and appear attractive to [a] potential client."

Having obtained the work, she performed in an incompetent manner and failed to adequately communicate with his client.

The facts established that the sanctioned attorney undertook an immigration matter on behalf of the Metropolitan Police Department (MDP) under the supervsion of an attorney with 16 years experience in the area.

A lengthy concurrence and dissent by Judge Adkins would not find all the charged misconduct. The resume issues were "minor" and the majority approach was worrisome

With the Majority opinion as written, I fear the implications of holding young lawyers accountable, in the disciplinary context, for the negligence or inattention of more experienced lawyers who supervise them. It can be efficient—benefiting both the client and the law firm—for an inexperienced lawyer to act in an apprenticeship role, handling certain details of a matter, including regular client contact. Moreover, in many instances, a client, like MPD here, is fully aware that the inexperienced lawyer will not provide the expertise and judgment expected of the more experienced lawyer. If young attorneys, working in a firm, become reticent to interact freely and openly with clients, the long tradition of apprenticeship as an entryway to our profession will suffer. I worry that the Majority opinion imperils the viability of this time-honored method of beginning a legal career.

 Judge McDonald joined Judge Adkins. They would impose a 15-day suspension. (Mike Frisch)

May 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

New Jersey Supreme Court Rejects Leniency For Convicted Attorneys

The New Jersey Supreme Court rejected a proposed suspension of two years from its Disciplinary Review Board and disbarred an attorney convicted of a sex offense with a child under the age of 16.

The attorney pleaded guilty to third-degree endangering the welfare of a child. He stated at the plea that he touched the child "in her rectal area," "in an inappropriate fashion," and "with the intent to impair or debauch her morals."

The DRB noted "[t]he paucity of...details" about the crime but concluded that the limited record "does not prevent a finding that respondent's conduct was despicable." Rather, the intent to debauch is defined as "to seduce from chastity, to lead away from virtue and excellence, to corrupt by sexuality."

The DRB rejected the attorney's contention that the denial of a full hearing violated his due process rights, as well as his claim of a privacy violation

...respondent voiced his concerns that these proceedings might violate his right to privacy. We wish to make clear that our goal is to protect the privacy rights of respondent’s victim, rather than respondent’s. We have taken steps to protect those rights by issuing a protective order sealing the disciplinary record and placing the matter for oral argument on our private calendar.

The court apparently concluded that the conduct was even more despicable than the DRB.

In a second matter, the court disbarred an attorney convicted of misprison of felony. The DRB had proposed a two-year suspension in that matter as well. (Mike Frisch)

May 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 25, 2014

Utah Reverses Misconduct Finding On Referral Fee With Marketing Company

The Utah Supreme Court has held that there was insufficent evidence of a Rule 1.8(f) violation in a matter involving a referral from a non-attorney marketing company.

The company is Utah Legal Group, which is a non-firm represented here  by a non-lawyer, that "recruits paying clients for Utah attorneys."

The case involved a client charged with trespass and assault. He received a solicitaion from ULG and met with the non-lawyer. The client's mother testified that she was attracted by advertising that ULG would "kick ass" and "get things accomplished that no other firm could."

The mother agreed to a $6,000 fee. She thought ULG was a law firm. The non-lawyer promised her that her son would not go the jail if she retained ULG. He also bad-mouthed the option of a public defender.

ULG paid the lawyer a $2,500 flat fee. He apparently did a credible job but the client got some jail time.

The mother still owed $1,600 after sentencing. She filed a complaint with the State Bar consumer service seeking a refund. The State Bar initiated an investigation.

The court here reversed the finding of a violation of Rules 1.8(f) and 8.4(a) and the sanction of private admonishment. The court found that the Bar failed to prove that the attorney had not secured the client's informed consent to the fee arrangement.

in Utah, such consent does not have to be confirmed in writing.

The court also held that Rule 8.4(a) provided no independent basis to find misconduct. (MIke Frisch)

May 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 22, 2014

"Found With A Known Prostitute In A Parked Car"

Bret Crow reports on the web page of the Ohio Supreme Court

The  former elected part-time law director for the city of Zanesville received a  six-month stayed suspension of his law license from the Ohio Supreme Court  today for conduct that led to criminal convictions.

Scott T. Hillis was arrested, charged, and pleaded no contest to  misdemeanor offenses of solicitation and criminal trespass after he was found  by police with a known prostitute in his parked car on private property.

After the Office of Disciplinary Counsel filed a complaint, the  parties agreed that Hillis’s conduct violated Prof.Cond. R. 8.4(h) (prohibiting  a lawyer from engaging in conduct that adversely reflects on the lawyer’s  fitness to practice law).

A panel of the Board of Commissioners on Grievances & Discipline and the full board agreed that the appropriate sanction was a six-month stayed suspension and recommended the Supreme Court adopt the consent-to-discipline agreement and sanction.

The court’s 7-0 per curiam (not assigned to a specific justice)  opinion cites six mitigating factors and no aggravating factors in its  consideration to adopt the consent-to-discipline agreement and recommended  sanction. The court agreed that Hillis violated Prof.Cond. R. 8.4(h).

The court also compared the severity of discipline issued in this  case to a similar case.

“While the facts in this case are very similar to the facts in Richland  Cty. Bar Assn. v. Brightbill, 56 Ohio St.3d 95, 564 N.E.2d 471 (1990) (a  public reprimand was warranted for an assistant prosecuting attorney convicted  of impersonating a police officer and soliciting sexual activity for hire), we  agree with the parties that a greater sanction is warranted in this case due to  Hillis’s position as an elected public official.”

2012-1244. Disciplinary Counsel v. Hillis, Slip  Opinion No. 2014-Ohio-2113.

(Mike Frisch)

May 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Avoiding Probate But Not Suspension

The Indiana Supreme Court accepted a consent sanction of a suspension for 180 days without automatic reinstatment for misconduct related to the attorney's relationship with an insurance marketing agency

 United Financial Systems Corporation ("UFSC") was an insurance marketing agency that provided estate planning services advertised to avoid probate. From February 2000 to December 2009, Respondent provided legal services to UFSC customers. Prospective customers who responded to UFSC's solicitations dealt with non-lawyer sales representatives who were not directly supervised by Respondent. If a customer signed a sales agreement, UFSC referred the customer to Respondent or another attorney.

Respondent typically spoke with clients by telephone and rarely advised a client to purchase a type of estate plan that had not been selected with the assistance of the sales representative. UFSC provided Respondent with templates for correspondence. Legal documents provided to Respondent by another attorney also may have been provided originally by UFSC. After preparing the estate plan documents, Respondent sent the documents to UFSC, where a sales representative assisted the clients in executing them. At that time, the sales representative also attempted to sell insurance products to the clients. UFSC paid Respondent a small portion of the total fee collected from a client's purchase of an estate plan.

This Court has held that UFSC engaged in the unauthorized practice of law for several years.

(Mike Frisch)

 

May 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarment For Thefts From Pension Plan

A Pennsylvania attorney consented to disbarment in the wake of a criminal conviction described on the FBI web page

An Allegheny County man has been sentenced in federal court to 25 months in prison and $1,190,957.86 in restitution on his conviction of false statements and concealing information on pension plan documents, U.S. Attorney David J. Hickton announced today.

United States District Judge Mark Hornak imposed the sentence yesterday on Merrill J. Druggs, 67, of Victoria Place, Gibsonia, Pennsylvania, 15044.

According to the information presented to the court, Druggs was a tax manager for Oerlikon USA Holding Inc. and a plan administrator and yrustee of an Oerlikon employee pension plan covering 1,400 persons. In 2011, after 34 years of employment with Oerlikon, Druggs was fired when the embezzlements were discovered. Druggs embezzled money in several ways: by diverting Oerlikon money to bank accounts using addresses of post office boxes that he created and controlled and his personal residence; by setting up an unauthorized 401(k) plan for his benefit and the benefit of two employess who he directly supervised and used Oerlikon’s money to fund it; and by using Oerlikon checks and a company American Express card to pay for his personal expenses. Druggs was able to embezzle $718,518 over a period of several years. The restitution ordered by the court included an additional amount of $472,439.86 to reimburse Orelikon and the pension plan for lost earnings on the embezzled money.

Before imposing sentence, the court said that this was a “carefully calculated plan” and that Druggs used his “education, experience, and learning” to steal from Oerlikon and the pension plan. The court noted that Druggs was a trusted fiduciary of Oerlikon and the pension plan, and further explained that in order to function, our “system of commerce relies upon the trust we place in fiduciaries” such as Druggs. By abusing that trust, Druggs’ conduct was “by any measure a very serious offense.”

(Mike Frisch)

May 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Live By The Sword

The Colorado Presiding Disciplinary Judge approved a suspension of six months and fitness for the following

On November 13, 2013, [attorney] Jay made a threatening the phone call to an Arizona Charles Schwab office because he was locked out of his wife’s 401k account and wanted access.In the call, he made threats against the Denver Charles Schwab office, stating that if he did not gain access to his wife’s account innocent people at the Denver office would be “hurt” and the office would be “gone.” The Denver police dispatched two officers to Jay’s residence. Jay answered the door holding a two- foot long antique bayonet. The officers drew their firearms and asked Jay to drop the sword. Jay complied and was taken to jail. Jay’s lengthy struggle with depression, anxiety, and treatment for those conditions may have contributed to his misconduct.
 
The attorney pleaded guilty to felony charges. (Mike Frisch)

May 21, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 20, 2014

Uncontrolled Rant Not Unethical Confidentiality Violation

A majority of the Wisconsin Supreme Court has found no violation of confidentiality obligations in an attorney's six-page letter responding to ineffective assistance of counsel allegations.

The referee had found the charged misconduct, calling the letter an "uncontrolled rant and musings about [the attorney's] representation" of his juvenile client and the conduct of successor counsel.

The court

Our  [confidentiality] rule does not limit permissible disclosures to judicially supervised settings so we reject that aspect of the referee's statement.  We agree that the tone of the letter is abrasive and that Attorney Thompson expresses contempt for both his former client and successor counsel.  This angry rhetoric pervades Attorney Thompson's appellate brief, as well.  While unprofessional, it is not necessarily unethical.

We consider the context in which this letter was sent.  Attorney Thompson was affronted that Attorney Leeper did not copy him on the court filings alleging, in extremely broad terms, that he rendered Derek C. ineffective assistance and seeking to limit his testimony in response to these claims.  The referee observed that "[Attorney] Thompson was an important and essential witness at the Machner hearing, [but] he did not have the status of a 'necessary party.'"  He was no longer counsel of record for Derek C.  As such, Attorney Leeper was not required to provide him with copies of the postconviction motions.  To the extent he thought otherwise, Attorney Thompson was mistaken.

 Generally, however, it is advisable and a matter of professional courtesy for postconviction/appellate counsel to provide former counsel with a copy of a motion alleging he or she rendered ineffective assistance.  Certainly, Attorney Leeper's decision not to provide copies to Attorney Thompson contributed to Attorney Thompson's belief that Attorney Leeper was improperly seeking to interfere with his opportunity to respond to the allegations.

My view is that anger towards successor counsel, whether justified or not, does not free an attorney from compliance the duty of confidentiality.

Justice Bradley, joined by Chief Justice Abrahamson, dissented

Unlike the majority, I think that the only reasonable interpretation of sub. (4) is that the disclosure of information must be in a court setting, i.e. a judicially supervised setting.  Subsection (4) allows for disclosure of information "to respond to allegations in any proceeding concerning the lawyer's representation of the client."  Under the facts of this case, the appropriate proceeding is the Machner hearing, where the attorney responds to allegations of ineffective representation...

Even if the majority were correct that disclosure is permitted outside of judicially supervised proceedings, it appears to me that the breadth of the disclosures in the September 29, 2008 letter went beyond the bounds reasonably necessary to respond to Thompson's pre-Machner motions.

The attorney's letter included, among other things, a "thorough discussion" of his early communications with the client and a parent, his view that the client was "glib" and "cocky," and discussion of the client's alibi defense.

If the governing principle of client-adverse disclosure is revealing no more than necessary to respond to allegations, then the court's holding is far too disclosure-friendly.

The court majority notes that the attorney had concerns about possible perjury and no prior discipline. The first point might be relevant to violation vel non; the latter (in my view) is not. (Mike Frisch)

May 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rehab To Reinstatement

The Wisconsin Supreme Court has reinstated an attorney who had been suspended "for a series of retail thefts " and subsequent interactions with the police.

The court noted that the misconduct was a product of the attorney's gambling addicion and substance abuse.

This court has carefully evaluated whether Attorney S. has indeed met the requirements for the reinstatement of her license to practice law in Wisconsin, and we conclude that she has.  Attorney S. has acknowledged the wrongfulness of her conduct, voluntarily entered into a rehabilitation program, and by all accounts has successfully undergone treatment for her addictions.  We agree with the referee that Attorney S. has met her burden of proof with respect to all elements needed to justify her reinstatement.  We agree with the referee that, as a condition of her reinstatement, Attorney Soldon should be required to provide the OLR with quarterly reports from Dr. Longo for a period of two years to confirm that she is maintaining her sobriety and continuing to abstain from gambling.

(Mike Frisch)

May 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarred After Reinstatement

The Indiana Supreme Court has disbarred an attorney for misconduct in multiple matters.

One case involved an incident of "disorderly conduct" in a courthouse environs.

The attorney got into a disagreement over payment with a former client and stated "I'll f***ing kill you! " Then, he said to a woman as he was being escorted to his car by a bailiff something like "Did you see how I handled that a**hole? " When she replied, he said to her "Shut up, bitch! "

Another matter involved his confrontation with the opposing party in a divorce, which violated Rule 4.2. In that same matter, he approached the judge in the Indianapolis City Market to discuss the case, which led to her recusal.

He had previously been suspended for 12 months and reinstated after undergoing "life changing" therapy. . (Mike Frisch)

May 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Skype Testimony Allowed, Attorney Disbarred

The Maryland Court of Appeals has disbarred an attorney for an improper business transaction with a client. The attorney also engaged in dishonest conduct in connection with the client's involvement with his real estate investment business.

Notably, the client testified over Skype from England. The attorney claimed that the arrangement (and the refusal to give him the client's present address) violated his rights.

The court disagreed and concluded that the Skype testimony was a permissible arrangement for the receipt of the evidence. (Mike Frisch)

May 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Internet Confidentiality Breach Draws Reprimand

The Georgia Supreme Court has imposed a public reprimand for a confidentiality violation of an attorney who posted protected information on the Internet in response to three negative reviews that the client had given on a consumer website.

The court noted that the attorney had no prior discipline aa well as personal and family health issues at the time.

The court previously had rejected a petition for the voluntary discipline of a review panel reprimand.

In her petition, Ms. Skinner admitted that, after the client had notified Ms. Skinner that the client had discharged Ms. Skinner and had obtained new counsel, Ms. Skinner posted on the internet personal and confidential information about the client that Ms. Skinner had gained in her professional relationship with the client. Ms. Skinner posted the information in response to negative reviews of Ms. Skinner the client had posted on consumer websites...

...we reject the petition for voluntary discipline that seeks a Review Panel Reprimand, the mildest form of public discipline authorized by the Rules of Professional Conduct, for the violation of Rule 1.6

The case is Georgia's first involving disclosure of confidential information on the Internet.

We are beginning to see a number of these cases from other jurisdictions.

Lesson: remember Rule 1.6 before you react to a negative review. (Mike Frisch)

May 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)