Sunday, November 30, 2014
A decision issued last week by the California Court of Appeals, Second District, Division Three holds
The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called "fiduciary" and "current client" exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.
The client had retained the law firm to pursue an invasion of privacy claim against the Daily Mail. As the court noted
The relationship between [client] Mireskandari and the Firm was short lived and, for the most part, contentious.
The court rejected the suggestion that internal counsel and the client were "joint clients" of the firm
Shelton and Mireskandari were not joint clients for purposes of section 962. Shelton and Mireskandari did not retain the Firm "upon a matter of common interest." Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case; Shelton consulted with in-house counsel not as a party to that action, but to obtain advice on how best to address Mireskandari's complaints about billing and his threats to hold the firm responsible for any damages he suffered. Mireskandari and Shelton were not co-parties; they did not employ the same attorney to oppose claims of an adversary or pursue a claim as joint plaintiffs; they were not represented by the same attorney in a business transaction.
The court vacated an order that had permitted discovery into the firm's internal communications.
Thank you to my former student Daniel Woofter for sending me the case. His article from the Georgetown Journal of Legal Ethics is cited in the opinion. (Mike Frisch)
An attorney who twice signed verifications for CLE credit that he had not earned was publicly reprimanded by a North Carolina General Justice Court.
Because the attorney formally had served as Counsel to the State Bar, the matter had been independently reviewed for a probable cause determination.
The attorney had claimed twelve hours of credit after attending for only the first and last hour of a class in September 2013.
He had engaged in similar conduct two years earlier.
The court called the reprimand a "strong reminder of the high ethical standards of the legal profession." (Mike Frisch)
Saturday, November 29, 2014
An attorney admitted to practice in 2009 was suspended for five years for engaging in sexual relations with a client in a domestic relations matter.
He sent three clients explicit text messages that included photographs of his erect penis.
He advised one client that he had had a vasectomy and thus that she could"ride bareback" with him.
The Disciplinary Hearing Commission found that the clients were vulnerable and that the explicit photographs demonstrated "a lack of judgment and integrity."
Two of the clients indicated that they had less trust in lawyers as a result of their interactions with the attorney.
The attorney also wrote off fees for one client without authority to do so from his firm and lied about his conduct to disciplinary authorities.
The commission concluded that disbarment was not required. Rather, he may seek reinstatement after five years if can satifies the numerous conditions set forth in the order. (Mike Frisch)
Friday, November 28, 2014
The West Virginia Supreme Court of Appeals disagreed with a hearing panel subcommittee of its Lawyer Discipinary Board and found no misconduct resulted from a sexual relationship between an attorney and his former client.
Notably, the attorney had not opposed the recommended 90-day suspension.
On de novo review, a majority of the court concluded that the sexual relationship began after the joint representation of the client and her husband on estate planning matters had ended.
The court majority concluded that the husband had fired the attorney at a January 2010 meeting that took place at The Greenbrier.
The termination was "because of [the husband's] concerns over the nature of [the attorney's] relationship with his estranged wife."
There was a concurring opinion by Justice Workman that agrees with the majority but noted that an attorney who terminates representation would be wise to send a "disengagement" letter.
Two justices dissented.
Justice Ketchum saw no evidence of an attorney-client relationship at the time of the sex but noted that the attorney had agreed that violations meriting a 90-day suspension had taken place.
Strong words from Justice Loughry in dissent, who calls the majority opinion a "result oriented...work of fiction" that will "send a message that the Court is more interested in protecting its own than policing its own."
Justice Loughry would find that there was an ongoing attorney-client relationship and chides the majority for its focus on testimony viewed in isolation (that the client thought of the attorney as a "friend") and its reliance on "utterly illogical" factors in support of its conclusions.
The hearing panel subcommittee report is linked here.
The subcommittee squarely found that the attorney-client relationship with both husband and wife continued well past the Greenbrier meeting and that the sex started during that period of time.
It further found that the attorney's claim that the end came at The Greenbrier was a knowing falsehood.
The husband did not retain new counsel until June 2010.
The Charleston Gazette reported that the attorney left his position as the Charleston managing partner of his firm in July 2014. (Mike Frisch)
Thursday, November 27, 2014
The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.
The case involved the robbery of a Dollar General in December 2012.
A video showed that the perpetrator was a white female.
An employee named Greenlee (a white female) came under suspicion and confessed that it was she in the video. She implicated Smith (her black male boyfriend) and another female as accomplices.
Greenlee entered a guilty plea and admitted under oath that she was the one in the video.
She was awaiting sentencing when she was called as a witness in Smith's trial and offered to testify that it was Smith in the video.
After an objection by defense counsel (who was aware of Greenlee's plea) and a recess, the trial judge allowed the testimony.
The judge found that Greenlee's plea and trial was inconsistent but not necessarily false. Greenlee explained that her plea testimony was false because she was trying to aid Smith.
The prosecution granted Greenlee immunity for any false statements at her plea.
The court found that the issue had been preserved and that the prosecution had knowingly used perjured testimony. The witness gave mutually exclusive accounts of the robbery under oath and there was a "high probability" that her trial testimony was false.
Further, the grant of immunity did not solve the perjury problem, only Greenlee's problem.
Notably, a police witness testified that the video showed that the perpetrator was a white female.
Thanks to Don Lundberg for sending the case to us. (Mike Frisch)
Wednesday, November 26, 2014
The Oklahoma Supreme Court has imposed a suspension of two years and a day for an attorney's domestic violence conviction
On or about the evening of July 3, 2011, Respondent's wife and two children were sleeping in their car to avoid Respondent who was intoxicated. Respondent approached the car and accused the son, who was 14 years of age, of breaking a television set. Respondent's son exited the vehicle and soon thereafter a verbal and physical altercation ensued. During the incident Respondent punched his son in the mouth causing a small cut and swollen lip. This occurred in the presence of Respondent's wife and 7 year old daughter. Tulsa Police were called and Respondent was arrested.
While on probation for the offense there was a second incident of violence toward his son.
Respondent has presented no defense for his actions and his brief states he readily accepts any discipline. He claims to have reconciled with his son and has completed 52 weeks of DVIS classes. The attached letter written by Mr. Brett states Respondent has matured and grown from his disbarment experience and is now "professionally prepared to resume his obligations as a practitioner of the law." This letter was dated August 11, 2014, less than a month after Respondent received his interim suspension. Although, we encourage Respondent to continue his reconciliation efforts and remain sober, not enough time has passed to convince this Court he is prepared to resume the practice of law. This point is emphasized by the fact he reported having a relapse the day following the filing of his brief, August 22, 2014. As in Soderstrom, we find a suspension period of two years and one day is appropriate.
The suspension is effective as of the date of the interim suspension. (Mike Frisch)
The South Carolina Supreme Court has imposed a two-year suspension of an attorney who also was an opthalmologist.
The problem here was the attorney's litigation (found to be frivolous) for denial of her hospital privileges.
From the fourth dismissal of these claims
Judge Harrington was warranted in ordering sanctions in this case, especially because Appellant, a licensed attorney, made identical legal arguments in the 2005 litigation and did not prevail on the merits. Appellant has continuously and repeatedly challenged the Hospital's credentialing decisions without any legal basis to do so, and in the process, has cost the Hospital untold amounts of time and resources in defending these claims. Therefore, we further find that Judge Harrington was warranted in enjoining Appellant from filing any future claims in the circuit court without first posting bond.
The court here rejected the attorney's efforts to relitigate the merits of the underlying claims. (Mike Frisch)
An applicant for admission to the Ohio Bar disclosed two alcohol-related incidents that had taken place in 2010.
One involved a reckless driving conviction that was pled down from driving under the influence; the other an open container of beer.
He was provisionally allowed to sit for the July 2013 exam.
But shortly before that event he was involved in another alcohol-related driving event in which he struck a parked car and left the scene. He had been drinking after a night of studying.
As a result, he was not allowed to sit for the 2013 exam.
The Ohio Supreme Court has now denied him permission to sit again.
The court noted concerns about his candor in connection with the pre-exam incident. His hearing testimony was inconsistent and an email to the Board of Commissioners on Character and Fitness had mischaracterized the circumstances.
The applicant was not found to have a chemical dependence and the bar's program did not propose that he enter into treatment.
He may reapply to sit in July 2015. (Mike Frisch)
Tuesday, November 25, 2014
The Maryland Court of Appeals has ordered an indefinite suspension with possible reinstatement after one year as reciprocal discipline based on sanctions imposed in Delaware.
Notably, the sanction in Delaware was a public reprimand.
The attorney had failed to complete CLE requirements and had not responded to bar inquiries.
He also made a false statement
Poverman failed to complete his 2013 Annual Registration Statement by the March 1, 2013 deadline. On March 12, 2013, the Delaware Supreme Court issued an order directing Poverman to appear before the court and show cause why he should not be suspended or sanctioned for such failure. ODC sent the show cause order to Poverman’s Baltimore office on March 19, 2013. On March 27, 2013, the date on which he was due to appear before the court to respond to the show cause order, Poverman called Cathy Howard, Clerk of the Supreme Court, and advised her that he would complete his registration statement online.
Based on their conversation, Howard believed that Poverman had suffered two strokes, which hindered his completion of the registration statement. On the same day, Howard sent an email to ODC relaying that Poverman had experienced two strokes and that he would complete the registration prior to his scheduled appearance before the Supreme Court. On April 9, 2013, Poverman repeated this assertion to the ODC in an email, stating that he had a “second stroke” in December 2012. Poverman, however, was never formally diagnosed as having suffered a stroke.
...we conclude that indefinite suspension with a right to apply for reinstatement after no less than one year would not be “too harsh.” Although Poverman also has no prior disciplinary history, the other mitigating factors that applied to Kepple do not apply to him. Poverman was not “youthful and inexperienced” when he committed the misconduct, and the Board did not find he made a timely good faith effort to rectify the consequences of his misconduct. Furthermore, Poverman, unlike Kepple, repeatedly ignored communications from a disciplinary authority. We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year.
Monday, November 24, 2014
An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had
made false statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The Hearing Board found, while Respondent had accused judges and other attorneys of criminal conduct, there was not clear and convincing evidence that she presented or threatened to present criminal charges, in order to obtain an advantage in a civil matter.
As set forth below, the statements involved a guardianship matter and were made on a blog
Beginning in November 2011, Respondent wrote and administered an Internet blog about the Sykes case. The blog consists of a series of writings, by various persons, including Respondent. Respondent made numerous blog posts over time. Some of those writings concern probate court and the probate system in general. Other writings relate specifically to the Sykes case and persons involved in it. The blog alleges corruption, in probate court in general and the Sykes case in particular. For a time, there were two blogs, one of which described itself as "(a)n attorney blog concerning corruption and greed in the Probate Court of Cook County," because Respondent used hosting sites which offered different features. (Tr. 318-19, 606-610, 820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate them as the blog.
Respondent testified she produced the blog as a private person not as an attorney. (Tr. 384). Respondent also testified her knowledge and skill as an attorney was required to post and author the statements on the blog. (Tr. 410). On the blog, Respondent stated she published the blog primarily from a legal standpoint and it took an attorney to make the comments appearing on the blog. (Tr. 411-12). When Respondent began keeping track of time she spent on the blog, she calculated its value using her hourly rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's Summary, the blog was open to the public. Respondent estimated, by the time of the hearing, her blog had an audience of about 40,000. (Tr. 318).
The blog includes allegations of wrongdoing by specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28). These allegations are summarized in a "Table of Torts." While those persons are referenced by initials, the Table identifies the persons to whom the initials refer. Respondent prepared the Table of Torts. Because Respondent periodically added material to the Table of Torts, more than one version is in evidence. Respondent acknowledged the exhibits fairly represent snapshots of the Table of Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).
On the blog, Respondent described the Table of Torts as "TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore, with the Table of Torts, for the purpose of providing an overview of the blog and context for the statements with which Respondent is charged.
The hearing board
Respondent was licensed to practice law in 1986, nearly thirty years ago. She has no prior discipline.
While Respondent acted with reckless disregard for the truth of her accusations, based on our impressions of Respondent, we do not believe she was acting out of a deliberate purpose of harming the judges and attorneys involved. Respondent genuinely, though unreasonably, believed something was wrong with the proceedings in the Sykes case. Respondent knew Mary and Gloria before the guardianship. While Respondent used decidedly misguided means, we believe she was acting out of a sincere desire to help Mary. We were also convinced Respondent truly believes there are abuses in the probate system and the system needs to be changed, to protect persons who are the subject of adult guardianship proceedings. From our perspective, it appears Respondent has genuine concern for senior citizens and perceives the senior population as vulnerable, especially to financial exploitation. This concern, as a general matter, is a legitimate one, even though Respondent had no reasonable basis for believing the judges or attorneys in Mary's case were corrupt.
We do not believe Respondent acted with a self-serving motive. The evidence did not support a theory that Respondent was reaping a significant financial benefit from her activities including operation of the blog.
The proposed suspension will, if adopted, continue until reinstatement is ordered by the court.
As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.
Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.
In my view, that conduct should be, if not encouraged, at least allowed.
Once again, I applaud the District of Columbia Court of Appeals for declining to adopt Model Rule 8.2 (Mike Frisch)
The Maryland Court of Appeals has agreed with the trial judge that an attorney engaged in no misconduct in his alleged solicitation and representation of a client.
The attorney first met the client in a courthouse where she was filling out papers for a protective order.
They became Facebook friends and subsequently entered into an attorney-client relationship. They then stopped being Facebook friends.
The court found that none of Bar Counsel's array of charges were proven.
As to the alleged solicitation of business
Although Respondent initiated a conversation with Ms. Coates, informed Ms. Coates that he was an attorney, handed her his business card, discussed her case, and the two exchanged telephone numbers, Petitioner has failed to show, clearly and convincingly, that Respondent’s motive in doing so was for pecuniary gain. Indeed, the hearing judge found that Respondent declined to represent Ms. Coates in October 2008, when the two first met. That Respondent sent Ms. Coates an email two months later in which he detailed a case strategy does not indicate clearly that he was attempting to solicit business from Ms. Coates when the two individuals met. Moreover, Respondent and Ms. Coates did not enter into a retainer agreement until fifteen months after meeting in-person. The hearing judge made no finding that the circumstances were overwhelming or unduly influential for Ms. Coates. Respondent’s conduct appears to have arisen from his desire to provide Ms. Coates with information, as opposed to a desire to represent her. Where an attorney refuses initially to represent the prospective client, does not insist that he be retained immediately, and the circumstances do not indicate that the prospective client felt undue pressure to seek representation, the facts do not support the conclusion that MLRPC 7.3(a) has been violated.
As to an allegedly improper romantic motive
To bolster the contention that Respondent sought to develop a romantic relationship with Ms. Coates, Petitioner relies on several alleged interactions between Respondent and Ms. Coates, specifically: (1) Facebook communications; (2) Respondent’s offers to have Ms. Coates use his rental property; (3) Respondent’s unexpected, late-night visit to Ms. Coates’s home; (4) Respondent’s request for a back massage; (5) Respondent’s comments about Ms. Coates’s attire; (6) Respondent’s offer to help Ms. Coates move out of her marital home; and (7) Respondent’s lying on Ms. Coates’s bed following the move–which Bar Counsel refers to as “the culmination of months of his subtle prodding to become closer to [Ms. Coates].” Petitioner avers that each of these instances are supported by evidence contained in the record below, however, many of the allegations upon which Bar Counsel relies were not established as true by the hearing judge. Moreover, many of the allegations Bar Counsel relied upon, both before this Court and before the hearing judge, were in dispute. With regard to the allegations not in dispute, Bar Counsel failed to demonstrate how those facts were indicative of Respondent’s attempt to develop an improper, romantic relationship with Ms. Coates.
...a lawyer has discretion to communicate with clients or prospective clients through social media. Likewise, assisting or offering to assist a client or prospective client in obtaining shelter or in moving from one residence to another is not per se violative of the Maryland Lawyers’ Rules of Professional Conduct. Whether or not the attorney violates the Rules of Professional Responsibility will depend upon the facts and circumstances of each case. When a lawyer, in the exercise of discretion, involves him or herself in conduct that is unnecessary to the attorney-client relationship or exceeds the bounds of the attorney-client relationship, however, he or she runs the risk that his or her exercise of professional judgment may be found to be both unreasonable and subject to the disciplinary process.
Judge Watts (joined by two colleagues) dissented and would find conduct prejudicial to the administration of justice
Specifically, evidence offered by Bar Counsel indicated that Merkle, among other things: (1) “commented on” Coates-Black’s attire while she was visiting him in his office, and later described Coates-Black’s attire as having a “plunging neckline” and being “quite revealing from the middle”; (2) sat on the same side of his desk as Coates-Black while she was visiting him in his office and asked her to rub his shoulders, prompting Coates-Black to decline and move to the opposite side of Merkle’s desk “to keep [him] away from” her; (3) attempted to visit Coates-Black at her apartment after 10:00 p.m.; and (4) offered, on multiple occasions, to let Coates-Black use an apartment in a building that he owned. Despite this evidence, and despite the serious allegations of improper conduct that Coates-Black raised at the hearing, the hearing judge inexplicably failed to make any findings of fact whatsoever concerning these matters. The allegations were well-detailed and described Merkle’s alleged improper and unseemly conduct toward Coates-Black, yet the hearing judge did not address or even mention them.
She further would find that the trial judge's conclusion that the client was not vulnerable was clearly erroneous.
The dissent also expressed concern about the attorney's characterization of himself as a "father figure" to the client. (Mike Frisch)
A stayed two-year suspension with six months actual suspension and probation is the appropriate sanction for an attorney who had violated a previously-imposed probation, according to a recommendation of the California State Bar Review Department.
The original probation was as a result of threatening messages sent by the attorney after his removal as co-executor of his father's estate
Thereafter, in 2004 and 2005, he left a total of 53 threatening and abusive voicemail messages for the successor administrator, the attorney for the administrator, and the ex officio judge of a North Carolina court.
The probation has not gone well and the attorney's explanations for his lapses did not persuade
Elkins has demonstrated that he fails to grasp the importance of strict compliance with probation conditions, despite reminders and warnings from Probation. Timely filing quarterly reports plays an important role in the rehabilitative process "because it requires the attorney, four times a year, to review and reflect upon his professional conduct . . . [and ] to review his conduct to ensure that he complies with all of the conditions of his disciplinary probation." (In the Matter of Wiener (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 759, 763.) Of equal importance is Elkins’s failure to timely attend and report completion of Ethics School. This information assures the State Bar that the attorney has reviewed and considered anew his professional responsibilities. Elkins’s failures constitute willful, repeated, and serious probation violations.
A disbarred attorney who persisted in notarizing documents after hid disbarment has been permanently disbarred by the Louisiana Supreme Court.
The [Disciplinary B]oard also found respondent’s claim that he was unaware he could not act as a notary public following his disbarment was not credible. The board determined the hearing committee correctly applied the Rules of Professional Conduct. Additionally, the board noted that respondent violated La. R.S. 35:14 by continuing to act as a notary public following his disbarment.
The former attorney defaulted on the charges. (Mike Frisch)
A fourth brush with the disciplinary system drew a public censure from the New Jersey Supreme Court.
The attorney and his former client had a fee dispute that went to arbitration.
The attorney had not kept records of his time as reported by the Disciplinary Review Board
At the ethics hearing, respondent admitted that the invoices that he had compiled for the fee arbitration proceeding did not reflect contemporaneous time records and that he had no such records. He told the panel that he had re-created the time spent on the case by reviewing the file, as well as some documents and information on a laptop computer and on an "electronic calendar." He explained that he had no "supporting documents" or "records from the computer" because of a September 2011 computer crash. He added that, for certain periods between September 2006 through January 2009, he had been unable to recreate the time spent on the file, either because he had found nothing on the file to back it up or because, as a sole practitioner, he had had no time "to look hard enough."
this is not the first time that he has run afoul of the recordkeeping rules. His 2007 reprimand stemmed from recordkeeping violations and were responsible for his negligent misappropriation of client’s funds. Having been disciplined for deficient accounting practices, respondent should have been especially attentive to the proper maintenance of his attorney records.
The attorney also failed to supervise non-lawyer assistants and pursued frivolous claims in seeking to challenge the arbitration award. (Mike Frisch)
Friday, November 21, 2014
The New Jersey Appellate Division has reversed an order denying judicial recusal and ordered that the entire Bergen County judiciary be recused from a criminal case.
The defendant has allegedly threatened the lives of two county judges.
While there are other unthreatened judges in the county, the court here concluded that the "appearence of fairness" warranted the grant of the sought relief.
The defendant is charged with synagogue firebombings. (Mike Frisch)
The Ohio Supreme Court has denied an application to sit for the July 2014 bar examination but will permit the applicant to reapply at a later date.
The problem involved the applicant's law school admission non-disclosure of alcohol-related incidents in the applicant's application to DePaul Law and his original and transfer applications to the Ohio State University, Moritz College of Law.
The court noted that the Board of Commisioners on Character and Fitness was "troubled by his ongoing efforts to hedge his responsibility and minimize the importance of candor" in bar admissions.
The applicant was remorseful and had stated that his "drinking days were over." (Mike Frisch)
Thursday, November 20, 2014
The Florida Supreme Court has denied admission to an applicant who received his law degree in April 2005 and passed the bar exam in February 2006.
The court rejected the recommendation of the Board of Bar Examiners to admit the applicant on a conditional basis.
The applicant reported that he had defrauded his former employer, Florida State University, to the tune of $54,046.
He served a jail sentence and had his civil rights restored shortly before graduation from law school.
He also filed for bankruptcy and discharged over $40,000 in debt.
The bar investigation revealed that he had failed to disclose to an employer, Axia College of the University of Phoenix, that he was a convicted felon.
The court here found that he was not rehabilitated
J.R.B. has demonstrated a lifetime of dealing in falsehoods. He lacks the ability to be truthful and his conduct over the years demonstrates that he has no respect for the law. J.R.B. engaged in embezzlement, stealing funds from his employer on numerous occasions. Further, the funds he stole included funds for a university debate team, so his misdeeds could have directly impacted students who were working to achieve important goals in their lives. J.R.B. was adjudicated guilty on five felony counts of Grand Theft and he pled no contest to forty-fivecounts of misdemeanor Petit Theft. This is a significant criminal history, which is based on untruthful conduct. In addition, J.R.B. had to resign from his position with the university in disgrace; people who have left one profession in disgrace cannot find a haven by seeking to become a member of The Florida Bar.
The bad news
... the underlying facts of the instant case impact so adversely on the character and fitness of J.R.B. that the misconduct mandates that he not be admitted to The Florida Bar now or at any time in the future.
The Maryland Court of Appeals has disbarred an attorney for misconduct described in the headnote to the case
The Court of Appeals disbarred attorney who gave incorrect advice to a client in an immigration matter, told the client that he did not need to appear at an immigration hearing and then did not appear himself (with the result the client was ordered in absentia removed from the United States), accepted payment from the client, and then stopped responding to all inquiries from the client as to the status of the case. Respondent also did not respond to lawful inquiries from Bar Counsel for information concerning the complaint.
The case is particularly interesting in its discussion of the fact finding below.
The attorney had defaulted but the hearing judge was nonetheless unimpressed by the evidence and the "casualness" of Bar Counsel's presentation.
Bar counsel, on appeal, contended that the trial judge had impeoperly made credibility findings that were contradicted by the default.
The court noted that the default was "neglected, but not ignored" and went on to find that the violations charged by Bar Counsel had been established by the default.
Judge McDonald concurred
This is one of those cases where no good deed goes unpunished. Bar Counsel attempts to put a face on a cold record of default and the defaulter prevails. The hearing judge conscientiously sifts the evidence provided, making the credibility determinations on which we normally rely, and that effort is found unnecessary. I concur in the Court’s disposition and write simply to make a suggestion.
The Majority opinion provides, in footnotes 17 and 26, some helpful advice to Bar Counsel and hearing judges on how to deal with situations, not uncommon, in which an attorney accused of misconduct fails to respond to the charges. Perhaps it is worth incorporating some of that good advice in our rules or in the standard referral order to hearing judges to make it more readily accessible than a Westlaw search
Footnote 26 suggests that the presentation of evidence may be problematic in a default situation and concludes
Although Bar Counsel may be correct that the evidentiary hearing may be important sometimes in putting a “face” on a complaint, as well as developing the effect of attorney misconduct on clients, such hearings may do more harm than good ultimately, as appears to have been the case here, by attempting to apply too many additional layers of gloss to already-established facts, so as to obscure and bring into doubt the clarity of the thorough and well-pleaded facts from a PDRA [charging document].
As we have noted in the past, one of the most significant peoblems in the D.C. disciplinary system is its hostility to any concept of default.
Literally, an accused attorney can entirely fail to participate and reasonably hope that the BPR will find him his defense, excuse and/or justification for the misconduct. (Mike Frisch)
An attorney was properly paid a fee of over half a million dollars for his work in a contested probate matter, according to a decision of the New York Appellate Division for the Second Judicial Department
Karen Cullin retained James Spiess to represent her in a contested probate proceeding. The parties entered into a contingent fee agreement, pursuant to which Spiess agreed to represent Cullin for an initial retainer of $5,000 plus 33 % of any proceeds he would recover on her behalf, by settlement or trial, up to a maximum fee of $600,000. Just before Cullin was to be examined by potential objectants pursuant to SCPA 1404, Cullin directed Spiess to settle the probate proceeding as expeditiously as possible. Spiess negotiated a settlement providing, inter alia, for the propounded instrument, which primarily benefitted Cullin, to be admitted to probate in exchange for a minimal payment to the objectants. Speiss thereafter was paid, from estate funds, fees in the amount of $585,000.
The court here relied upon a recent (and, in my view, shamefully pro-lawyer) decision of the Court of Appeals in affirming the reasonableness of the fee
Here, the evidence supports the Surrogate's conclusion that the fee paid to Spiess was reasonable in light of the difficulty of the issues involved, the favorable terms of the settlement to which Spiess's efforts and expertise contributed, and the significant risk that Spiess took that probate of the propounded instrument would be denied and that he would not earn any fees other than the initial retainer of $5,000 (see generally Matter of Lawrence, ______ NY3d ______, 2014 NY Slip Op 07291, 9-10 ). Under the circumstances, we perceive no basis upon which to disturb the Surrogate's determination with respect to Spiess's attorney's fee.
Wednesday, November 19, 2014
An attorney who had provided a firearm to a convicted felon has been suspended for six months by the Maryland Court of Appeals.
The court had previously remanded the matter
On January 24, 2014, in Reno I...we held that Sandra Lynn Reno (“Reno”), Respondent, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) and 8.4(a) (Violating the MLRPC) by circumventing the law and giving a handgun to a former client who, as Reno should have known, could not legally possess a regulated firearm, despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved the former client’s application to buy the same kind of handgun. “Instead of determining an appropriate sanction on our own initiative, we g[a]ve Reno and the [Attorney Grievance] Commission [(“the Commission”), Petitioner,] the opportunity to recommend a sanction[.]” Reno I, 436 Md. at 512, 83 A.3d at 786.
As to sanction
Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens’s application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer’s failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.