Saturday, February 28, 2015
An unusual reciprocal discipline case will be argued in the District of Columbia Court of Appeals on April 9th.
The attorney was disbarred in Alabama.
The D.C. Board on Professional Responsibility has recommended a 90-day suspension with fitness based on its conclusion that disbarment would amount to a "grave injustice."
Because the disbarment imposed by the Alabama Disciplinary Board is so disproportionate to the sanction that would otherwise be imposed in this jurisdiction, we conclude, by clear and convincing evidence, that an obvious miscarriage of justice would occur if Respondent were disbarred...
...the Board finds that Respondent’s misconduct is most analogous to those cases where the Court has imposed 60-day suspensions for contempt of court. Specifically, the Board finds Breiner and Powell to be the most comparable. In Breiner, the respondent was held in contempt multiple times for a pattern of disrespect to the court, as a result of his excessive zeal in representing a criminal defendant. Similarly, in Powell, the respondent was held in contempt and caused a mistrial, harming his criminal defendant client. The findings of the Alabama Disciplinary Board encompass all of the elements of Breiner and Powell and thus warrant a sanction at least as serious. However, the Alabama Disciplinary Board found that Respondent also failed her client, and engaged in equally troubling conduct towards witnesses and the Assistant District Attorney. Given the extreme nature of her contumacious conduct and her failure to recognize it, insofar as she continued to press her grievances outside the courtroom on television, Respondent’s misconduct is somewhat more egregious than the 60-day suspension cases. Given these additional factors, the Board recommends that the Court impose a 90-day suspension.
And this may be played a role in the Alabama sanction.
After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."
Bar Counsel has appealed the board recommendation.
As reflected in this earlier post, this is a rare instance where my sympathies lie with the board. (Mike Frisch)
The Delaware Supreme Court imposed a public reprimand of a criminal defense attorney who violated the terms of a protective order that he had a hand in drafting.
For the reasons meticulously outlined by the Board[on Professional Responsibility], the record supports a finding by clear and convincing evidence that Koyste knowingly violated the PO in Benn’s case. Koyste actively participated in drafting the PO, understood its terms, and specifically acquiesced to the clause prohibiting him or his agents from using the discovery material to identify or contact witnesses. The terms of the four-paragraph PO were clear and unambiguous. Koyste had a signed copy of the Superior Court’s and never forgot that Benn’s case was governed by a PO. Despite several reminders from the prosecutor about the terms of the PO, Koyste made no effort to review the Superior Court’s order or take any measures to determine his compliance with the PO before instructing his investigator to show the discovery materials to Benn and his wife.
The court concluded that "the Board properly found that [the attorney's] violation of the PO caused potential injury to the vulnerable, teenage victim in Benn’s case and caused actual injury to the legal system." (Mike Frisch)
Friday, February 27, 2015
A busy day in Kansas for gender-based misconduct.
A district court judge was suspended without pay for 90 days by the Kansas Supreme Court based on these findings
Respondent engaged in harassment as well as gender bias by making repeated inappropriate and offensive comments in the presence of female attorneys employed by the Sedgwick County District Attorney's Office.
The Respondent's conduct was directed toward multiple female attorneys, including Melissa Green, an attorney employed by the Office of the District Attorney, Juvenile Division, in the 18th Judicial District since January 2013. Respondent engaged in incidents of inappropriate, harassing behavior towards Melissa Green.
While Ms. Green was employed with the now-named Department for Children and Families prior to her employment with the Office of the District Attorney, Ms. Green was assigned to Respondent's court for approximately five years. Ms. Green testified that, in approximately October 2006, at a time when Respondent and Ms. Green were in the courtroom alone, Respondent told Ms. Green that after his wife gave birth the doctor asked Respondent if he wanted an extra stitch in Respondent's wife for Respondent's pleasure.
While Ms. Green was employed with the Department for Children and Families prior to her employment with the Office of the District Attorney, Respondent regularly made sporadic and pervasive comments of a sexual or suggestive nature. Two examples were telling Ms. Green she was the girl who wouldn't date him in high school and remarking on another occasion, 'whatever, prom queen.' Ms. Green testified that, although each comment standing alone might not have been offensive, it was the cumulative effect of so many of these comments that became offensive.
While Ms. Green was employed with the Office of the District Attorney, Ms. Green made and delivered an over-the-hill birthday cake for Jennifer Redd's birthday party, at the request of Respondent. Respondent pointed to a representation of an old couple crossing the street and laughed, stating it looked like she was giving him the 'reach around.' Ms. Green testified at the hearing that this is a comment of a sexual nature from the gay community and could not have been used innocently.
With another attorney
Respondent made inappropriate comments in late 2011 insinuating that Ms. Marino liked to have a lot of sex. The comments were based on a vacation she was taking to Las Vegas and a statement that she liked to play a slot machine called Sex in the City. Her comment was apparently cut short, resulting in a statement that she liked sex. Respondent repeated the joke numerous times to Ms. Marino's embarrassment. "
Respondent joked about whether Ms. Marino was pregnant or would be pregnant after vacations. This subject continued for a few years. One incident in particular occurred in 2013 when Respondent inquired across the courthouse parking lot whether Ms. Marino had 'another one on the way' after she returned from vacation. Respondent testified these comments were not sexual but rather celebrated children. The Panel did not find this explanation credible
There are a number of other instances of like misconduct identified in the court's opinion.
As to sanction
Looking first at the nature of the misconduct, the evidence established that the Respondent exhibited extremely poor judgment or blatantly misused the power of his judicial position in multiple ways. He made offensive and demeaning comments of a sexual nature to female attorneys and staff members. Those victims endured the harassment over an extended period of time because they feared Respondent would use his professed political connections to jeopardize their careers. The Respondent interfered with an attorney's practice by sending an ex parte email communication to the attorney's client that expressed bias or prejudice toward the attorney, founded in part on the Respondent's apparent disagreement with the attorney's moral beliefs. Finally, the Respondent tried to use the influence of his judicial position for personal gain by brokering an employment opportunity for his wife. These offenses were not inadvertent "technical" missteps. The nature of Respondent's misconduct struck at the very heart of the honor and dignity that the public expects and the legal profession demands from a judge.
The extent of Respondent's misconduct was wide-ranging, especially with respect to the first count of the three-count complaint. What the Respondent's Chief Judge labeled "off color or blue humor" was pervasive and ongoing. The Respondent subjected multiple female attorneys and staff members to repeated inappropriate and offensive comments for literally years. Moreover, often the comments directed at a particular female were made in front of other persons, thereby further broadcasting the denigration of the judiciary's integrity...
...we do not view public censure as the appropriate sanction in this case and a majority of the court hereby imposes an initial sanction of an unpaid, 90-day suspension, commencing within 10 days of the filing of this opinion. A minority would impose a more severe sanction.
In addition, because Respondent does not seem to appreciate why his conduct was unacceptable, we also impose an educational requirement. Within 1 year of this opinion's filing date, Respondent shall have satisfactorily completed a course in sexual harassment, discrimination, and retaliation prevention training, as well as educational program(s) on the employment law applicable to such conduct. Respondent shall file a report with this court within that 1-year period, detailing the training and program(s) completed.
Further, Respondent shall be prohibited from accepting any position in the Eighteenth Judicial District that involves the supervision of any judicial branch employee, other than his chambers staff, for a period of 2 years following completion of the above-described educational requirement.
The Wichita Eagle had reported on the panel's censure recommendation.
My take: this result is marginally better than a mere slap on the wrist (i.e. censure) but it's a close, warm cousin of a wrist slap.
This is a judge I'd never want entrusted with matters that require the exercise of judicial discretion. (Mike Frisch)
A stayed three-year suspension with probation has been imposed by the Kansas Supreme Court on an attorney appointed to defend a felony driving under the influence case.
The attorney was concerned that a witness that the prosecution had under subpoena had moved out of state and was not there for trial.
The court ruled against the Respondent's position on the Motion in Limine and precluded [S.R.]'s preliminary hearing testimony from being offered by the Respondent. The Respondent was frustrated and angry at the court's decision, and he believed the prosecution had deliberately engaged in an obstructive tactic by making it appear that [S.R.] had been subpoenaed to appear at the trial, and then releasing him from his subpoena, without notifying the Respondent.
After counsel had argued their positions on the Motion in Limine, as the Respondent was returning to his seat at counsel table, the Respondent called Ms. Britton a 'dirty bitch.' The comment was heard by Ms. Britton, as well as other individuals in the courtroom who were seated behind the prosecutor's counsel table. Neither Judge Malone nor his court reporter heard the Respondent's comment.
Ms. Britton was surprised and offended by the Respondent's comment and asked to approach the bench to raise the issue with Judge Malone. Ms. Britton told Judge Malone that the Respondent had called her a 'bitch,' to which the Respondent indicated that he in fact had called her a 'dirty bitch.' The Respondent then apologized to Ms. Britton, although Ms. Britton did not initially believe the Respondent had apologized to her. However, Judge Malone confirmed that the Respondent had apologized.
The attorney also submitted a falsely notarized document in the disciplinary case.
There was mitigation
The Respondent testified that on the day [R.C.'s] trial began, July 8, 2013, he was experiencing severe, almost debilitating pain in his right big toe. As a result of a delay in seeking medical attention for a blister on the toe, the Respondent had developed a very serious medical condition that ultimately resulted in rather significant treatment after July 8, 2013. The Respondent had received information from his doctor prior to the incident on July 8, 2013, that treatment for the toe condition might include amputation.
And the behavior was not isolated, From the panel findings
It is interesting to note, that during cross-examination, the Disciplinary Administrator questioned two of the Respondent's witnesses, Douglas County District Court Judge Paula B. Martin and Sherri E. Loveland, attorney, Lawrence, Kansas, about similar conduct by the Respondent towards them. Judge Martin testified that in approximately 1981, the Respondent called her a 'bitch' when she was in a trial as opposing counsel. Ms. Loveland testified that approximately 30 years prior, the Respondent had called her a 'fucking bitch' during a court proceeding. While both of the incidents testified to by Judge Martin and Ms. Loveland are very remote in time to the incident which occurred in July 2013, it does reveal that the Respondent has a history of this type of conduct.
Disciplinary counsel sought a one-year suspension which the court rejected
...instead of adopting the discipline suggested by respondent or the Disciplinary Administrator, a majority of the court elects to impose a 3-year suspension. However, we elect to stay imposition of that discipline and place respondent on probation for a 3-year period from the date a probation order is entered by this court. A minority of the court would impose a harsher discipline in light of the violation of KRPC 8.4(c) (engaging in conduct involving misrepresentation) and respondent's prior disciplinary history.
The Iowa Supreme Court has suspended an attorney without possibility of reinstatement for at least six months.
Verla Jean Bartley was admitted to the Iowa bar in 1961. She rose to prominence in the profession over the years and was active in the state bar association. She has no prior disciplinary record. In 2002, she began practicing as "of counsel" with an Iowa City law firm and retired from the active practice of law in 2014.
The misconduct involved neglect and misrepresentations in two estate matters.
The court discounted her self-report
However, this mitigation is lessened somewhat when the self-reporting is at least in part motivated by knowledge that the law firm would otherwise be reporting the violation.
After considering mitigating and aggravating factors, the court concluded
We also observe that the misrepresentation was not only the most serious unethical conduct engaged in by Bartley, but measured against a career that spanned more than half a century, it appeared to be the most uncharacteristic. Bartley consciously engaged in the misrepresentation to cover up her neglect and, in the process, only elevated the seriousness of her conduct and the degree of sanctions we are responsible to impose. We have observed this result in other lawyer discipline cases, and it is one that all lawyers who face the prospect of discipline would be better off avoiding.
The legal ethics community is learning of the death of Monroe H. Freedman.
Monroe is a shining light that inspired generations of lawyers to treat ethics as a central part of their professional lives and a subject of serious scholarly study.
He also was an iconoclast who was not cowed by the power of the judiciary and the entrenched Bar.
This tribute by Ralph J. Temple, Monroe Freedman and Legal Ethics: A Prophet in his Own Time, rings true today as when it was written
The rules of ethics applicable to a number of today's critical ethical issues evolved from Freedman's creative thinking and advocacy. This is a fact that is easily overlooked, because some of his once controversial positions are now widely accepted...
No writer or thinker in the field of legal ethics has articulated with such clarity and 'power the vital constitutional, moral, and philosophical values inherent in lawyers' ethics. His innovative views-often initially dismissed by the established bar only to be later accepted- have justly had the greatest impact on legal ethics in our time.
If there is a Mount Rushmore for legal ethicists, Monroe is on it along with my own mentor Father Robert Drinan.
He will be missed, but lives on in the lawyers and teachers that he trained and inspired. (Mike Frisch)
Thursday, February 26, 2015
A conviction for a violent crime merits an 18-month suspension, according to a recent order of the Rhode Island Supreme Court.
Disciplinary Counsel has requested that we suspend the respondent’s license to practice law based upon these two criminal convictions. The respondent appeared before the Court, with counsel, and requested that we impose a less severe sanction. The respondent presented mitigation evidence that his criminal conduct occurred while he was seriously intoxicated, that he has sought and continued treatment for his substance-abuse issues, including in-patient rehabilitative care, and that he has refrained from consuming alcohol and other intoxicating substances since his arrest on the felony charge. Having heard the representations of Disciplinary Counsel, the respondent, and his counsel, we determine that a suspension of the respondent’s ability to practice law in this state is necessary...
By committing a crime of violence the respondent has tarnished the profession, and his conduct warrants a serious sanction.
The court further provided
At the conclusion of his eighteen-month period of suspension, the respondent may apply for reinstatement to the practice of law. Should he do so, the respondent will bear the burden of convincing this Court that he has maintained his sobriety, that he has continued with his treatment for substance abuse, and that he is morally fit to resume the practice of law.
The Washington State Supreme Court has imposed a six-month suspension of an attorney for pervasive neglect of a personal injury matter.
Rather than challenge the factual basis of the Washington State Bar Association's (WSBA) three-count complaint, Pfefer's brief to this court raises arguments about due process and unconstitutional vagueness. He does not cite to any testimony, evidence, or argument that the events of his representation did not occur exactly as the hearing officer found. Our own review of the record shows the same-a knowing disregard of fundamental professional duties owed to his client and an indifference to making restitution. The WSBA Disciplinary Board (Board) unanimously recommended that Pfefer be suspended from the practice of law for six months and pay restitution to his former client in the amount of unaccepted settlement offer. We affirm, to practice on the payment of restitution of $5,834.15 to his former client and the payment of costs and expenses to the WSBA.
The attorney contended that he was denied due process.
One claim was that Rule 3.7 was improperly applied because his partner was both his attorney and a fact witness. He claimed that the lawyer-witness rule did not apply to bar disciplinary matters.
The court rejected the claim
More fundamentally, Pfefer fails to show on this record that the hearing officer disqualified Caruso at all. Rather, he gave Pfefer a choice: either Caruso could act as advocate and cross-examine two of the WSBA's witnesses (including [client] Ortiz) or he could testify as a fact witness. Pfefer chose the latter. The hearing officer ruled that Pfefer had the opportunity to testify in the narrative, subject to objection, and Caruso was permitted to sit at counsel's table and advise Pfefer throughout the hearing. Because the record shows that the hearing officer did not disqualify Caruso from assisting Pfefer at the disciplinary hearing, we find no error.
The attorney's challenges to costs also fell on deaf ears
His supplemental objections challenged virtually every expense, objecting to, for example, mileage reports for disciplinary counsel, lunch expenses, parking, the use of in person questioning of witnesses at the disciplinary hearing instead of performing the hearing telephonically, document fees, and interpreter's services. The Chair did not consider Pfefer's supplemental objections, concluding they were too late.
An attorney who improperly sought a default in an employment discrimination case on behalf of a former Special Assistant Attorney General was suspended for one month by the Rhode Island Supreme Court.
We find it inconceivable that the respondent could have held a belief, much less a reasonable one, that at all times during the long history of Huntley’s quest for resolution of her claims Lynch, Coyne and Goulart did not plead or otherwise defend against those claims. Accordingly, the respondent could not have had a good-faith basis to support the affidavits he filed with the clerk in support of his applications for default. Therefore, he made a false statement of fact to the clerk of the court when he submitted his own affidavits asserting that Lynch, Coyne and Goulart had "failed to plead or otherwise defend the within action," in violation of Rule 3.3(a). Additionally, his conduct in filing these applications with the clerk, without notice to the defendants or their counsel, for purposes of obtaining an unwarranted entry of default, were dishonest and deceitful, in violation of Rule 8.4(c). Finally, his conduct was prejudicial to the administration of justice, causing the court, defendants, and their counsel to squander limited resources addressing respondent’s filings, in violation of Rule 8.4(d).
we note that the respondent is a fairly young attorney, with no history of public discipline. He seems to firmly believe in his client’s cause, and he is zealous in his pursuit of her claim. However, we agree with the board that his actions in pursuit of those claims were misleading, disingenuous, and harassing. We are not convinced that the respondent fully grasps that his conduct in this matter was wrongful. We find his lack of appreciation of that fact to be a substantial aggravating factor.
The Rhode Island Supreme Court accepted the consent disbarment of a convicted attorney.
An East Greenwich attorney has been disbarred by order of the Rhode Island Supreme Court after she pleaded no contest to charges of embezzling from an elderly client.
Janet A. Mastronardi, 54, was sentenced last July to two and a half years home confinement and four and a half years suspended with probation.
Mastronardi was accused of overbilling her client by more than $129,000 for services rendered in overseeing the woman’s finances. The woman needed assistance due to declining health.
The Rhode Island Supreme Court had suspended Mastronardi back in March 2013. On Jan. 30, 2015, Mastronardi filed an affidavit with the state disciplinary board acknowledging that she was aware she was the subject of a disciplinary investigation; the disbarment followed, and is retroactive to March 11, 2013.
An attorney who had violated the duty of confidentiality has been admonished by the Vermont Professional Conduct Board.
The attorney is a solo practitioner admitted in 1986. She rents office space in a building that also houses a number of other lawyers and businesses.
She represented a husband and wife in probate and family court matters that involved their minor child.
The clients became dissatisfied and asked for their file. The attorney agreed and made arrangements for the wife to stop by and pick it up.
When the wife arrived, the attorney was not there. Her office door was locked and the client file had been left in the hallway.
The clients were particularly concerned since the file contained their social security numbers and personal information concerning themselves and the minor child. It is unknown whether anyone looked inside the file, but there is no evidence that this occurred.
Respondent left the file outside her office door because she had to leave and did not want to hinder her client's retrieval of the file at the agreed time. She did not consider the confidentiality of the file at the time she left it in the hall.
The board found that the conduct was negligent and merited an admonition.
In Vermont, an admonition does not identify the attorney by name.
I have been pondering this one a bit and have some questions/thoughts for those out there who read this blog.
I assume that it would be OK to leave the file with a support staffer in a sealed envelope marked "confidential" for the client.
Would it have violated Rule 1.6 to leave the file outside the door in a sealed marked envelope? (Mike Frisch)
The two-year suspension of a dentist for his involvement in a criminal scheme was affirmed by the New York Appellate Division for the Third Judicial Department.
The court rejected the suggestion that the sanction imposed by the Board of Regents should be reduced
Here, the Board expressly took into consideration many of the mitigating factors upon which petitioner now relies, including petitioner's cooperation with the Attorney General and his demonstrated remorse, as well as the fact that his conduct did not directly implicate patient care, that he did not submit claims for work not actually performed, that he was not convicted of larceny or fraud, that he is paying restitution in an amount greater than many of his codefendants and that his misconduct consisted solely of an illegal fee-splitting arrangement and "making small improper payments to patients." Although petitioner testified – and continues to emphasize – that he was unaware that such activities were criminal in nature, he readily acknowledged at the hearing that he was aware that "flyer guys" were retained to "lure" Medicaid patients into the clinic's practice (often by utilizing small cash payments) and that he knew that this activity "was wrong" and did not "seem kosher." Nonetheless, petitioner turned a blind eye to this activity for approximately four years, during which time he reaped the financial benefits of being employed at the clinic. In light of petitioner's misconduct, and taking into consideration the mitigating factors cited by petitioner, the gravity of the underlying offense and the need to fashion a penalty that serves as a deterrent to other health professionals, we cannot say that the two-year suspension imposed by the Board is so disproportionate to petitioner's offense as to shock one's sense of fairness.
An 84-year-old attorney consented to a three year suspension by the Pennsylvania Supreme Court for unauthorized practice in a Louisiana case.
The attorney has never been admitted in Louisiana.
He filed a declaratory judgment action in a Louisiana federal district court. The client alleged injuries in an offshore diving accident.
The attorney had local co-counsel but actively litigation as "of counsel" without seeking pro hac vice admission status.
Disciplinary charges were litigated in Louisiana, where the Louisiana Supreme Court concluded that the unauthorized practice would have drawn a three-year suspension if he had been admitted there.
He has practiced in Texas for 60 years. (Mike Frisch)
Wednesday, February 25, 2015
An attorney admitted to practice in 2006 was publicly censured by the New York Appellate Division for the Second Judicial Department for a material omission on her application for bar admission.
The Special referee found that
On or about June 28, 2006, the respondent falsely answered "No" to Question 12 on her application for admission to the New York Bar, which reads:
Have you ever, either as an adult or juvenile, been cited, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, except minor parking violations, or been the subject of any juvenile delinquency or youthful offender proceeding?
At the time, the respondent knew that on August 20, 1993, she had been arrested in New York, New York, and charged with petit larceny and criminal possession of stolen property.
In determining an appropriate measure of discipline to impose, this Court has considered the Special Referee's finding of genuine remorse, and the high regard in which the respondent is held by her peers, as well as her employer, the Honorable Jeanette Ruiz, Supervising Judge of the Family Court, Kings County, who testified on the respondent's behalf. The Court also has considered, inter alia, the affirmative steps that the respondent took to rectify her conduct, including, but not limited to, having the charges dismissed and the record sealed, and her otherwise unblemished disciplinary history. Nonetheless, the Court notes that "candor and the voluntary disclosure of negative information by an applicant are the cornerstones upon which is built the character and fitness investigation of an applicant for admission to the New York State bar"
The attorney had sought a private reprimand.
No indication from the opinion how this came to light. (Mike Frisch)
The Minnesota Supreme Court has imposed a reprimand and probation of an attorney.
The misconduct involved, among other things, a pattern of misconduct in loan modification matters, misrepresentations and conflicts of interest.
The stipulated discipline credited as mitigation "her mental health issues and great personal stress in her life at the time of her misconduct."
The attorney had previously been cleared of criminal charges as reported by the Star Tribune in November 2009
"It was like my early birthday present," attorney Kristi McNeilly said after all charges accusing her of witness tampering and terroristic threats were dismissed Monday at a hearing in Ramsey County District Court.
Ron Hocevar, chief deputy Scott County attorney, said the charges were dismissed because of "evidentiary problems and witness availability problems."
The case was handled by the Scott County attorney's office to avoid a possible conflict of interest.
According to a criminal complaint filed in July, McNeilly, 34, of Woodbury, was representing Trinis D. Edwards, 37, on domestic assault charges when she became his lover and tried to persuade his wife, Lori Edwards, either to not testify or to lie on the stand.
She also was accused of assaulting her father, Stephen McNeilly, who was to be a witness in the case, and threatening her brother, Judah McNeilly.
She originally was charged with first-degree aggravated witness tampering -- which was dismissed on Oct. 7 -- first-degree witness tampering and terroristic threats.
"There were serious flaws with the case, again, evidentiary-wise and witness-availability-wise," Hocevar said. He would not elaborate.
McNeilly said the charges were all a ruse, perpetrated by a family member, whom she had accused of stealing from her St. Paul law firm.
"I'm having a good day," McNeilly said Monday. "It's been a long five months of having my reputation pretty much smeared."
McNeilly said she and Edwards did have a previous relationship -- "Actually, we were first loves 17 years ago," she said. But "during the time he was my client, I never had a relationship with him.
"I'd like an apology from the county attorney for pretty much not investigating this properly before bringing these charges."
Trinis Edwards, meanwhile, pleaded guilty in October to second-degree assault and violating a no-contact order taken out by his wife. He is scheduled to be sentenced next Tuesday.
The South Carolina Supreme Court has imposed a suspension of nine months of an attorney convicted of misprision of felony
The criminal information states that, beginning in or around the summer of 2011 and continuing up to on or about January 13, 2012, respondent had actual knowledge of the commission of federal felony offenses involving the solicitation and receipt of kickbacks by J.P. and the payment of kickbacks by E.R. in connection with the 2011 South Carolina State University homecoming concert and that he failed to disclose this knowledge and took affirmative steps to conceal this information from federal law enforcement agents investigating the matter, both prior to and during a November 14, 2011 interview with agents of the Federal Bureau of Investigation.
On October 3, 2014, respondent was sentenced to probation for a term of six months and given probation credit beginning with the date of his plea on May 13, 2014. Respondent has completed the probation.
Respondent has accepted full responsibility for his conduct, self-reported the matter to ODC, and fully cooperated with the Government in its prosecution of the matter that gave rise to the criminal charges. The Government filed a motion for a downward departure based on respondent's exceptional cooperation. At respondent's sentencing, an Assistant United States Attorney described respondent as "extraordinarily accommodating, cordial, polite, forthcoming and patient" and further stated that she "could not have asked more from a witness."
The Wisconsin Supreme Court has held that an insurance company is not obligated to defend a legal malpractice suit where the attorney fails to (as required by the insurance contract) to notify the carrier during the coverage period.
The basic facts
Melissa and Kenneth Anderson sued their former attorney, Thomas Aul, for legal malpractice. Wisconsin Lawyers Mutual Insurance Company (WILMIC), Attorney Aul's professional liability insurer, intervened in the lawsuit. WILMIC sought summary judgment declaring that the insurance policy it issued to Attorney Aul did not cover the Andersons' claim.
The WILMIC insurance policy provides coverage for those "claims that are first made against the insured and reported to the [insurance company] during the policy period" (emphasis added). This type of policy is commonly known as a claims-made-and-reported policy.
Wisconsin's notice-prejudice statutes, Wis. Stat. §§ 631.81(1) and 632.26(2) (2011-12), provide that an insured's failure to furnish timely notice of a claim as required by the terms of a liability policy will not bar coverage unless timely notice was "reasonably possible" and the insurance company was "prejudiced" by the delay...
The parties agree that the Andersons' claim against Attorney Aul was first made during the policy period, that Attorney Aul did not report the claim during the policy period, and that reporting the claim during the policy period was reasonably possible. They dispute whether the WILMIC policy's requirement that claims be reported during the policy period is governed by the notice-prejudice statutes and also whether WILMIC was prejudiced by Attorney Aul's failure to report the claim during the policy period.
Chief Justice Abrahamson held
the benefits to insurance companies and insureds of claims-made-and-reported policies, the statutory history underlying Wisconsin's notice-prejudice statutes, the persuasive authority of other courts that have decided the question presented by this case, and the unreasonable results a contrary holding would produce persuade us that Wisconsin's notice-prejudice statutes permit an insurance company to deny coverage without a showing of prejudice when an insured fails to report a claim within a claims-made-and-reported policy period.
The clients who sued lose out
from the Andersons' vantage point, they have been victimized twice: first by Attorney Aul's malpractice and now by his failure to comply with his malpractice insurance policy's reporting requirement. We reach a harsh result, but one we have determined the law requires. We conclude that the legislature did not intend to rewrite the fundamental terms of the WILMIC insurance policy or to make the strict reporting requirement underlying claims-made-and-reported policies unenforceable in this state.
Justice Ziegler, joined by three colleagues, concurred
Although I reject the lead opinion's consideration of "consequences of alternative interpretations," I agree with the lead opinion's conclusion that the notice-prejudice statutes, by their plain meaning, do not apply to the reporting requirement at issue. I also agree with the lead opinion's conclusion, consistent with that plain meaning, that applying these statutes to the reporting requirement at issue would produce unreasonable results. I join that conclusion only to the extent that it can be construed as engaging in a plain-meaning analysis of these unambiguous statutes. This writing is intended make clear the majority opinion of the court.
For the foregoing reasons, I respectfully concur.
Tuesday, February 24, 2015
A recent opinion from the District of Columbia Bar Legal Ethics Committee.
Headnote summary of Opinion No. 368:
A law firm may not provide for or impose liquidated damages on a lawyer who, after departure, competes with the firm. A firm and a departing lawyer may have liability to one another, though, for work done before the lawyer's departure. Also, a firm may not restrict a departed lawyer's subsequent professional association or affiliation with partners or employees of the firm, except insofar as such activity is subject to legal limitations outside the Rules of Professional Conduct. Whether a choice of law provision in a partnership or employment agreement can avoid application of the D.C. Rule governing lawyer departures usually will depend on the location where the departing lawyer principally practiced.
The opinion also deals with choice of law issues. (Mike Frisch)
Reciprocal discipline of a public censure was imposed on an attorney by the New York Appellate Division for the First Judicial Department as a result of a reprimand and probation in Arizona.
In April 2011, respondent was charged with a misdemeanor in Tucson County Court after having damaged his wife's cell phone during a domestic dispute. Respondent appeared pro se at a pretrial conference at which he entered into an agreement with the prosecutor to participate in their diversion program, following completion of which the charge against respondent would be dismissed. Respondent failed to complete the intake process for the program and failed to appear for at least four pretrial conferences, resulting in the issuance of warrants for his arrest. In May 2012, after failing to appear at five pretrial conferences, respondent completed the diversion program.
Meanwhile, in March 2012, the Magistrate presiding over respondent's criminal case reported his conduct in the matter to the State Bar of Arizona. In June 2013, respondent, represented by counsel, entered into an agreement for discipline by consent with the State Bar in which he, inter alia, waived his right to a hearing on the complaint and waived all defenses, objections, or motions which would have been raised or made in connection therewith. Respondent admitted that his conduct violated Arizona Supreme Court Rules 42 and 54(c) and Arizona Rule of Professional Conduct 8.4(b). He agreed to the imposition of a reprimand, to probation for a period of up to one year, to submit to an assessment and complete any treatment recommended by the State Bar's Member Assistance Program, and to pay the costs and expenses of the disciplinary proceeding. By order of July 2, 2013, the Arizona Supreme Court accepted the parties' proposed agreement for discipline by consent and ordered that respondent be disciplined in accordance therewith.
The attorney maintains an office in Arizona. (Mike Frisch)
A recent decision of the Connecticut Supreme Court deals with charging liens in domestic relations matters
The plaintiff, Ralph Olszewski, challenges the Appellate Court’s conclusion that equitable charging liens are permissible in marital dissolution actions in Connecticut. He claims that they are barred by the Rules of Professional Conduct, they are not supported by Connecticut precedent, and the public policy considerations that justify equitable charging liens in other contexts do not apply in marital dissolution actions. The defendants Carlo Forzani and Carlo Forzani, LLC. respond that equitable charging liens against marital assets are permissible in Connecticut because the Rules of Professional Conduct specifically provide for charging liens, the rules do not preclude the use of charging liens in marital dissolution actions, and public policy considerations support their use in domestic relations matters. We agree with the plaintiff and reverse the judgment of the Appellate Court.
in the eight jurisdictions in which the court explicitly held or determined that an attorney’s charging lien could be enforced against an award of alimony and/or child support, the courts in five jurisdictions based their holdings on statutory authority rather than the common law. Id., §§ 4a and 4b, pp. 613–17. We therefore conclude that attorneys are not entitled by operation of law to equitable charging liens on marital assets for fees and expenses incurred in obtaining judgments for their clients in marital dissolution proceedings in Connecticut.