Legal Profession Blog

Admission Sufficient To Accept Resignation

The New York Appellate Division for the First Judicial Department has accepted the resignation and struck from its rolls an attorney in the wake of findings of dishonesty in his post-divorce litigation. The court notes:

...this Court granted the Departmental Disciplinary Committee's petition, based upon collateral estoppel, and found that respondent was guilty of professional misconduct in that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Disciplinary Rule 1-102(A)(4); that said conduct was prejudicial to the administration of justice in violation of DR 1-102(A)(5); and that such conduct adversely reflected on respondent's fitness to practice law in violation of DR 1-102(A)(7).

These findings were based upon a determination in Civil Court, New York County (Gerald Lebovitz, J.) that respondent had asserted, under oath, in a 2005 nonpayment proceeding, on more than one occasion, material factual statements that were false. That court also imposed a $10,000 sanction against respondent for engaging in frivolous conduct during the course of the nonpayment proceeding (see 1050 Tenants Corp. v Steven Lapidus, 13 Misc 3d 1220[A], 2006 Slip Op 51925U, aff'd 17 Misc 3d 133[A], 2007 NY Slip Op 52049U). This Court's June 5, 2009 order referred respondent's matter to the Committee for a hearing solely on the issue of sanction.

The court found the admissions in the resignation sufficient:

Respondent has chosen to submit his resignation pursuant to 22 NYCRR 603.11. In his affidavit in support of his resignation, he states that he is resigning from the Bar; that his resignation is rendered freely, voluntarily, and without coercion or duress; that he is fully aware of the implications of submitting his resignation and of the disciplinary proceedings against him; and specifically acknowledges that he has already been found guilty of professional misconduct as per this Court's June 5, 2009 order. He acknowledges that, in light of the invocation of the collateral estoppel doctrine and the order of this Court, his misconduct is deemed established and the only issue at the impending hearing would be the sanction to be imposed upon him. In explaining his decision to resign, respondent states "I have retired from the practice of law and believe that it would make little sense to expend court resources, Committee resources and my own financial resources in defending this matter."

Counsel for the Committee states that he is satisfied that the affidavit conforms with the requirements set forth in section 603.11.

A comparison of the requirements in 22 NYCRR 603.11(a)(2) and (3) with the language in respondent's affidavit finds that the affidavit is not in technical compliance, since respondent did not specifically identify the nature of his misconduct, and did not actually state that he could not successfully defend himself on the merits against the charges. Nevertheless, we conclude that sufficient is admitted in the affidavit to find that respondent admits that his guilt was established by this Court's June 5, 2009 order. This order, in turn, was based upon the Civil Court findings that he had engaged in making multiple perjurious statements in a judicial proceeding. His admission that "it would make little sense" to expend, inter alia, his own financial resources in defending this matter is deemed an admission that he cannot successfully defend himself on the merits.

(Mike Frisch) 

A Bump In the Road

An Arizona hearing officer has recommended the censure of an attorney who is a certified specialist in personal injury and wrongful death. He had a number of clients who faced "challenging financial circumstances" and arranged loans to clients through an arrangement by which the loans were made by another attorney secured by promissory notes. The attorney lent money to the other lawyer from personal accounts when the other lawyer did not have money to fund a loan. The attorney knew that the other attorney made loans through checks written on a lawyer trust account.

The hearing officer found that the arrangements violated current client conflicts rules and business transactions with client provisions. There was no harm, the lawyer had acted negligently and the misconduct was motivated by concern for the welfare of clients. He was "very remorseful" and held an erroneous belief that "what he and [the other lawyer] were doing was okay...To misquote an old saying: 'The road to trouble is paved with good intentions.' " (Mike Frisch)

Unwarranted Professional Courtesy

An attorney who had been appointed as trustee to conduct a sale of real property failed to distribute the proceeds in a timely manner. One of the parties retained counsel and directed the attorney to distribute the proceeds in care of his lawyer, indicating that a bar complaint would be filed if he failed to do so by a stated date. The lawyer/trustee responded by email, asking for "professional courtesy and indulgence until the end of the month" and advising that he was relocating his practice to Dubai. Despite further efforts and promises (and waiting until the end of the month), the funds were not distributed. The bar complaint was filed and the lawyer failed to participate in the hearing.

The Maryland Court of Appeals ordered disbarment, concluding that this result was appropriate in a default proceeding (as here) for violations involving intentional misappropriation. (Mike Frisch)

Convicted Justice Disbarred

The New York Appellate Division for the Third Judicial Department has accepted the resignation of a former state Supreme Court Justice and entered an order of disbarment. The former justice had been convicted of bribery and extortion in federal court. Details concerning the underlying criminal matter may be found in this report from the Village Voice. (Mike Frisch)

A Family Matter

The Louisiana Supreme Court has disbarred an attorney for ethical violations in dealings with his former sister-in-law. His brother worked for Halliburton and had named his wife as the beneficiary of his life insurance. The brother gave his brother/lawyer power of attorney while overseas. The separation took its toll on the marriage and led to a divorce and property settlement that was completed in August 2000. In December 2000, the brother was killed in a traffic accident in Saudi Arabia, leaving his ex-wife as the beneficiary of over $800,000 in insurance.

The lawyer did not want the ex-wife to benefit and failed to share the information about the policy with her. She executed an agreement an agreement drafted by him signing away her rights for $25,000 without advising her to seek the advice of independant counsel. A hearing committee found the agreement "unconscionable, unfair, and unreasonable." The Disciplinary Board  rejected the lawyer's claim that he was deprived of due process in the bar proceedings. the court here agreed that disbarment was appropriate:

Following his brother's death, respondent used his legal training to defraud [the ex-wife] of the life insurance proceeds to which she was entitled because he decided that she should not receive them...we will adopt the disciplinary board's recommendation of disbarment.

The court declined to follow the board's restitution recommendation: "...that issue is most appropriately resolved in the pending civil litigation." (Mike Frisch)

Paralegal Arranges Suspension Of Lawyer

Here's a rather remarkable disciplinary matter in which the Pennsylvania Supreme Court vacated an order of suspension based on the following findings.

The attorney was suspended for non-compliance with CLE obligations. Thereafter, charges of unauthorized practice were brought. The communications from disciplinary counsel were intercepted by the attorney's paralegal. The paralegal accepted service of the petition and consulted counsel without advising the attorney of the charges. Counsel contacted disciplinary counsel and arranged for a suspension by joint petition, accepting the paralegal's representation that the attorney did not want to meet to discuss the matter. Counsel signed the attorney's name to the joint petition without ever consulting with the attorney.

When the lawyer discovered the order of suspension, she retained counsel and sought vacatur. Counsel who had negotiated the joint petition filed an affidavit admitting he had never consulted with his "client." The above facts were established at a hearing on the motion to vacate.

There's obviously a backstory here. The recommendation attached to the court's order notes that the attorney, the paralegal and the lawyer who negotiated the suspension all have known each other for 15 years. This article from the online edition of the Bucks County Courier Times notes a suit filed against the lawyer based on allegations that the paralegal stole settlement proceeds. More here on the paralegal from Angiemedia.

UPDATE: The web page of the Pennsylvania bar disciplinary system discloses that the attorney was disbarred by consent on the same day that the above order was entered.   (Mike Frisch)

Tick Tock, Tick Tock

In a sharply worded 41-page opinion, an Arizona hearing officer rejected all disciplinary charges in a case brought over a decade after the (complex) events took place. The attorney was a member a law firm in which a partner had represented a close friend. The lawyer was retained by the partner as counsel when the partner was named personal representative of the friend's estate. During the probate administration, allegations arose that the attorney and partner had acted to benefit certain unsecured creditors (firm clients in unrelated matters) to the detriment of the estate. There were findings of improper conduct in the underlying litigation.

The State Bar investigated and dismissed in August 2001. Subsequently, there were additional findings of misconduct in the litigation. The State Bar then brought charges and sought to apply preclusive effect to the findings. The hearing officer denied such effect and found that the lawyer had given good-faith advice to the partner:

The Bar has not shown a single instance where Respondent failed, intentionally or unintentionally, to comply with any law on any occasion, let alone repeatedly...Rather the evidence supports the conclusion that he followed the probate code, as he understood it, and guided [his client]competently and in good faith down the highly technical path laid out for him in the probate code...If there is Arizona authority for the proposition that a lawyer can be found to have violated [rules prohibiting dishonesty and conduct prejudicial to the administration of justice] by giving correct legal advice to a client in good faith, the Hearing Officer has been unable to find it and it has not been cited by the Bar.

The most compelling aspect of the case (to me) brought back memories of one of my favorite childhood songs. One of the Bar's charges involved a grandfather clock. The deceased had fallen against the clock and died. The clock stopped at the moment of death. A dispute arose among the heirs whether to repair the clock or leave it stopped. The hearing officer found that the lawyer had no involvement in the dispute. 

My grandfather's clock
Was too large for the shelf,
So it stood ninety years on the floor;
It was taller by half
Than the old man himself,
Though it weighed not a pennyweight more.
It was bought on the morn
Of the day that he was born,
And was always his treasure and pride;
But it stopped short
Never to go again,
When the old man died.

Here, the clock got repaired. (Mike Frisch)

Conditional Plea Leads To Disbarment

The Tennessee Supreme Court agreed that a hearing panel had acted within its authority and affirmed an order of disbarment. The attorney initially had defaulted on consolidated charges arising from four client complaints. At a subsequent hearing on sanction, he tendered a conditional plea in exchange for a three-year suspension. The panel approved the plea and granted the attorney's request to delay the effective date of the suspension on certain specified conditions. The attorney was warned that the panel would reconvene if he failed to certify compliance with the conditions. He failed to do so and the panel reconvened and imposed disbarment.

The court here rejected the contention that the panel was divested of jurisdiction when the Board of Professional Responsibility approved the proposed offer of conditional plea and had no power to modify the terms of the offer. Not so: "It was well within the jurisdiction of the Panel to both vacate the modified conditional plea when [the attorney] failed to timely notify his existing clients of his impending suspension by the established date, and enter an order of disbarment when [he] failed to appear at the [reconvened]hearing."

The court did hold that the attorney was allowed to nonsuit his petition for a writ of certiorari and reversed the trial court's contrary holding. As the appeal to the court was dismissed, the order of disbarment was affirmed. (Mike Frisch)

"An Overarching Breach"

From the web page of the Ohio Supreme Court:

The law license of [a] Willoughby attorney...has been suspended for 18 months, with the final six months of that term stayed on conditions, for mishandling a decedent’s estate and committing other misconduct by disregarding his duty to exercise independent professional judgment on behalf of clients who were facing foreclosure on their homes.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] neglected to secure trust assets that were part of the  estate of a client for whom he had been named executor, resulting in improper distribution of assets from the estate by his co-trustee without the permission of the probate court. 

The Court also found that [he] violated multiple provisions of the Rules of Professional Conduct by entering into a business arrangement with a purported “foreclosure rescue” service in which [he] received fees directly from the service to “represent” its customers in mortgage foreclosure actions without meeting with the clients, determining their individual objectives or financial situations or exercising independent judgment to determine what legal action was in each client’s best interest.

The court noted a prior case involving an attorney who partnered with a nonattorney entity to represent foreclosure clients and stated:

That association presented the same ills as have respondent's alliances--insufficent attorney-client communication and case preparation, nonattorney promotion of the lawyer's legal services, the aiding of the unauthorized practice of law, and the sharing of legal fees. Together, these failings signal the surrender of an attorney's ability to exercise independent professional judgment on a client's behalf and manifest an overarching breach of the lawyer's duty of loyalty to the client.

The court's opinion is linked here. (Mike Frisch)

Charges Allege Excess Zeal

The Illinois Administrator has filed a complaint alleging misconduct by an attorney appointed by a county public defender to (i) represent a juvenile charged with criminal sexual assault and (ii) represent the parents in a matter involving protective custody of their injured child. The public defender represented the child in the second matter.

The alleged conduct sounds in overzealousness. In the first, the complaint alleges:

...Respondent issued a subpoena to the Island Lake Police Department (hereinafter, "ILPD") in case number 07 JD 370, demanding that they produce any evidence of video and audio surveillance related to [his client]  Bradley C. Shortly thereafter, Respondent received ILPD’s response to the subpoena indicating there was no video or audio surveillance related to Bradley C.

...Respondent went to the ILPD station...and approached the dispatch window. At that time, he told Kathy Vasquez (hereinafter, "Vasquez"), the dispatcher, that he was "with the State’s Attorney’s office" and asked her whether there was functional video or audio surveillance in the ILPD lobby. Respondent also asked about the events of May 12, 2007, when Bradley C. came to the ILPD. Vasquez told Respondent that there was no functioning video or audio surveillance in the ILPD lobby, and that he should address any questions about the Bradley C. matter to the assigned officer. Respondent then exited the ILPD.

Respondent’s representation to Vasquez that he was with the State’s Attorney’s office was false, and he knew it was false. Respondent’s statement to Vasquez that he was with the State’s Attorney’s office was intended to cause Vasquez to speak to him about matters relating to the Bradley C. case.

...Vasquez reported her conversation with Respondent to Officer John Nikopoulos (hereinafter, "Officer Nikopoulos"), who recorded the license plate number of Respondent’s vehicle as he departed the ILPD. Shortly thereafter, Officer Nikopoulos contacted the Lake County State’s Attorney’s office and determined that Respondent was an Assistant Public Defender and did not work for the State’s Attorney’s office.

In the second matter, he is alleged to have falsely represented himself as an assistant state's attorney to a child protective investigator and also to have engaged in what the complaint calls "unauthorized copying." The appointed attorneys in abuse and neglect cases share space and staff with the public defenders. One of the public defenders representing the juvenile inadvertantly left original medical records of the client on a copy machine. The accused attorney found them there and copied them without permission. According to the complaint:

[Public defender] Gordon went to Respondent’s office and asked him why he had copied the medical records without authorization, and Respondent sarcastically responded to Gordon "shame on me." Respondent also told Gordon at that time to "go ahead and report me to the Attorney Registration and Disciplinary Commission."

[The next day] Respondent [editor's note: I assume this reference should be to Gordon] informed Gossman [the chief public defender] about Respondent’s copying of the medical records that [public defender] Hayward inadvertently left on the copier in relation to case number 09 JA 41, and about her conversation with Respondent...

...Gossman met with Respondent to discuss his copying of the medical records. At that time, Respondent acknowledged copying the documents from the copier and said that he would repeat the conduct if he found documents on the copier in future. Gossman then demoted Respondent (removing him as a supervisor), suspended him for a week without pay, placed him on probation for six months, transferred him to the felony division in Waukegan, and instructed him not to have further involvement with case number 09 JA 41.

Shortly thereafter, Respondent went to the Lake County Public Defender’s Juvenile Division office in Vernon Hills, obtained the Public Defender’s file from case number 09 JA 41, and removed documents from the file, including copies of motions that he had filed in the matter.

...after Gossman learned that Respondent had gone to the Juvenile Division, pulled the file from case number 09 JA 41, and removed documents from that file, she terminated Respondent’s employment with the Lake County Public Defender’s office.

The complaint charges that this conduct violated Rules 8.4(a)(4) and (5) and "tend[ed] to defeat the administration of justice or to bring the courts or the legal profession into disrepute..." (Mike Frisch)

Excessive Fees Result In Probation

More from the California Bar Journal:

[An attorney] was suspended for two years, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect May 9, 2009.

While one of two partners at [his law firm] in San Diego, [he] represented two trusts worth more than $16 million that held the assets of James Hervey Johnson, a noted atheist who died in 1988. Both [he and his partner] provided legal advice and represented the trusts and trustees from 1997 to 2000, collecting more than $2.9 million in fees. [He] did more work than his partner on the account.

In 2000, the California Attorney General charged both lawyers with collecting excessive fees. The trustees were charged with mismanaging the trusts.

In a 2004 settlement, [the attorney] agreed to refund $330,000 of the $480,000 [the firm] had collected in unearned fees. He ultimately completed the restitution.

He stipulated that he failed to promptly refund unearned fees.

In mitigation, [the attorney] had no prior discipline record, he cooperated with the bar’s investigation and he took steps to address the harm suffered by his clients.

(Mike Frisch)

$5,000 And A Rolex Watch

The Louisiana Attorney Disciplinary Board has dismissed as unproven charges against a criminal defense attorney. The attorney represented the incarcerated former leader of the Louisiana Hell's Angels. The client owed fees to the lawyer. A person delivered to the lawyer $5,000 and a Rolex watch, which the lawyer credited to the owed fees. The person who delivered the cashier's check and watch later claimed that they were intended to secure the representation of another incarcerated person. The lawyer denied any attorney-client relationship  with the putative client.

The board affirmed findings that the evidence did not establish an attorney-client relationship with anyone other than the existing client, who apparently was pulling off a "jailhouse scam." The person who delivered the payment and watch was known as "one of his people" and there was no documentary evidence of the representation of anyone else. The board concludes:

The record in this matter raises certain suspicions. Howver, these suspicions do not rise to the level of clear and convincing evidence. ODC has failed to meet its burden of proof. The record clearly indicates that no attorney client relationship existed between [the attorney] and the [putative clients]. The record also contains sufficient evidence that [the attorney] had a reasonable belief that the funds he received were for [the actual client's] legal fees. Furthermore, [he] has refunded the money to [the putative clients] and has returned the watch.

(Mike Frisch)

"Couch Of Restitution"

The Michigan Attorney Discipline Board has affirmed findings of misconduct but increased the sanction from a  120 day suspension to 180 days. The attorney had pleaded guilty to a misdemeanor assault and battery in exchange for dismissal of charges of fourth-degree criminal sexual conduct in 2001. He failed to report the conviction to bar authorities.  The conviction came to light when a former client filed a request for investigation of the attorney.

The Administrator filed charges relating to the failure to report the criminal matter, false statements on his bar dues statement that denied any such conviction and misconduct toward the complainant that involved improper touching, sexually explicit remarks and a comment that his fees could be paid on his "couch of restitution." The Administrator filed notice of intent to offer two similar acts toward vulnerable clients. The Administrator also offered evidence that the 2001 conviction (later set aside) involved improper sexual behavior directed at a client. The testimony of the 2001 victim was admitted to establish the circumstances of the offense. The "bad acts" evidence of the other two former clients also was admitted at the hearing.

The board here held that discipline could be imposed for the criminal conduct notwithstanding the order setting aside the conviction. The evidence of other acts was properly admitted:

The high degree of similarity of these separate accounts established [his] system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees. Both [victims] testified that [he] used the phrase "couch of restitution," and closed the blinds before making sexual remarks to them. The panel did not err in finding a commonality in [his] approach indicating a scheme, plan, or system and the panel did not err when it found that "prior bad acts" evidence was offered for a proper purpose...

The 180 day suspension will "ensure that [the attorney] is not permitted to resume his standing as a member of the profession unless he is able to establish his fitness by clear and convincing evidence." The Administrator has sought a suspension from one to three years. The attorney had a record of prior discipline.

The decision provides an interesting analysis of admission of evidence issues in the context of bar discipline. Many bar regimes (such as D.C.) have rules that allow for admission of evidence that permit consideration of information (such as hearsay) that might be excluded under civil and/or criminal rules.(Mike Frisch)

Abad Case

An Arizona hearing officer rejected a laundry list of ethics charges but found that the accused lawyer (who had a single instance of minor discipline in 30 years of practice) had failed to competently handle an appeal. The underlying case (the Abad case) involved claims of over 100 plaintiff that mold exposure at their apartment complex had caused injuries. The hearing officer recommended public censure and three years probation with conditions that the attorney complete 20 hours of CLE on appellate procedure, report any appeal in his cases to the State Bar and associate with experienced counsel in any appeal. As to sanction:

The mitigating circumstances in this case are overwhelming. The sanction imposed by the trial judge [$750,000] was unprecedented. It has had a devastating effect on [the lawyer], his family and his practice. It is also important to consider that the Abad case is still on appeal. It is impossible to estimate if there is any harm to the clients until the matter is resolved.

Among the charges found unproven were incidents of what were called "rude" behavior. One incident took place during the deposition of one of the attorney's experts. The attorney said "Excuse me, Do you have a shit-eating grin on your face, Cindy?" (Mike Frisch)

Panel's Troubles No Bar To Sanction

The Tennessee Supreme Court has affirmed a hearing panel order imposing a one-year suspension in a matter involving four separate complaints. The court rejected a variety of claims, including that the sanction was excessive in light of the attorney's claim that he had acted negligently and that the "proceedings were procedurally flawed because a member of the hearing panel and a lawyer-witness were subsequently disciplined for professional misconduct in other matters."

The panel member was later suspended for failure to respond to a bar complaint. The witness was disbarred. The court found that the issue was not properly documented in the appeal but rejected the claim on the merits:

While we firmly reject [his] argument that his Panel was compromised by unlawful procedure, we conclude our analysis by emphasizing that we take seriously the integity of attorney disciplinary proceedings in Tennessee. We regret those instances when attorneys standing in judgment of their peers are themselves subsequently found in violation of the rules that govern our profession. We aspire to a system where Panel members are of the highest ethical character and scrupulously refrain from even the appearence of professional misconduct in thier own practice of law. Nonetheless, where a disciplined attorney may obtain two levels of review of the Panel's judgment, the subsequent discipline of a Panel member cannot automatically negate the outcome of all the prior disciplinary proceedings where that attorney served on the Panel. In this case...the Panel's judgment is indepenently supported by the decision of the other two Panel members, against whom [he] alleges no procedural improprieties.

(Mike Frisch)

Two Accidents Lead To Suspension

The Louisiana Supreme Court has imposed a suspension of a year and a day retroactive to an earlier-imposed interim suspension. While employed with the Attroney general's office, the attorney was involved in a minor car accident in the office parking lot. She was charged with DUI and self-reported the matter to disciplinary counsel. she went into a treatment program for alcohol and executed a contract with the Bar's recovery program.

Unfortunately, there was a subsequent accident in the Belle of Baton Rouge Casino parking lot. A breathalyzer test showed a bood alcohol content of .323%, more than four times the legal limit. Because the sanction was imposed effective in May 2007, the attorney may now petition for reinstatement. (Mike Frisch)

An "Unfortunate Absurdity"

The Vermont Supreme Court affirmed a finding that two attorneys had violated Rule 4.1 and imposed a private admonition. The facts:

 The parties stipulated to the following facts.  Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter.  During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence.  Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony.  They quickly arranged to interview the witness by telephone and to record the call.  During the call, the witness asked respondents whether they were recording the interview.  One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.”  The witness later filed complaints with the Office of Disciplinary Counsel against both respondents.  The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c).  The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself. 

The court majority concluded that the knowing false statement about the recording violated the Rule. The violation was not premised on the surreptitous recording, which was lawful. The court concluded that the actions did not reflect on fitness to practice.

A concurring justice noted that the decsion does not deal with the complexity of undercover operations:

   It seems at least unclear whether the judicial branch, through an ethical rule, might unconstitutionally interfere with valid, and even statutory, executive branch functions directed by attorneys supervising undercover discrimination, consumer fraud, and criminal investigations that require surreptitious taping and deceptive impersonations, including those authorized by warrant.  See, e.g., V.R.Pr.C. 8.4(a) (declaring it misconduct for a lawyer to violate the rules “through the acts of another”); V.R.Pr.C. 5.3(b) & (c) (making a supervising lawyer responsible for investigator compliance with the rules and professional obligations of the lawyer).  Related separation of powers questions, as well as due process and equal protection issues, arise over judicial curtailment of otherwise legal and valid tactics available to public defender investigators looking into criminal allegations against their clients.

Not presented in an actionable context in the instant appeal, such issues remain unresolved.  Equally unresolved, then, is the potential for ethical violation by attorneys involved in law enforcement and criminal defense who, without lucre or malice, oversee entirely legal investigative strategies executed by staff or agents.  Failure of the rules to recognize and allow for justified and necessary deception in the course of law enforcement and defense investigation is reminiscent of Secretary of State Henry Stimson’s foolish prohibition of diplomatic codebreaking between the World Wars on the high-minded premise that “Gentlemen do not read each other’s mail.” Common sense might dictate that such a blind principle, like Rule 4.1 found violated in the instant case, ignores the legal and objectively legitimate demands of the real world. 

These points are raised only to lament the unfortunate absurdity of this violation and to emphasize the need for the committee to reconsider the literal application of Rule 4.1 to executive and defense investigations relating to law enforcement.

A concurring and dissenting opinion takes the majority to task for not finding a Rule 8.4(c) dishonesty violation for what is characterized as "bold-faced lying. " (Mike Frisch)

 

High Profile Disbarment

The Florida Supreme Court has accepted the consent disbarment of an attorney in the wake of a recent FBI raid on his law office. The Huffington Post reported as follows earlier this month:

Rothstein, 47, a flashy attorney who has raised millions of dollars for charities and politicians, has made no public statement since the fraud allegations surfaced earlier this week. The state Democratic and Republican parties are both returning tens of thousands of dollars in Rothstein's donations, and Gov. Charlie Crist is giving back $9,600 from his U.S. Senate campaign.

A spokesman for the law firm, Charles Jones, said the firm cooperated fully with the search and had reopened for business Thursday morning. Rothstein was removed as chief executive officer by a judge who also appointed a receiver to unravel its finances. Attorneys for investors say well over $100 million may be lost.

Attorney William Scherer, who represents a dozen investors out some $80 million, said lawsuits are in the works against banks, insurance policies and Rothstein's assets. He also plans to file lawsuits seeking the return of charitable and political contributions.

The court's web page links to the documents relating to the disbarment. (Mike Frisch)

"Such Action...As Is Deemed Appropriate..."

An attorney who had been subject to a public reprimand in 2007 also was required to provide the Office of Disciplinary Counsel with quarterly reports on the status of the underlying estate matter. The ODC filed charges concerning his alleged non-compliance which resulted in a finding of contempt by the West Virginia Supreme Court.

The court fashioned a sanction that took into consideration the need to bring the estate matter to a conclusion:

...we find that Respondent failed to comply with the directives of this Court set forth in the January 10, 2007, order, and, accordingly, we hold him in contempt of that order. We further hold that the appropriate sanction is to suspend his license to practice law in this State. However, because the underlying estate matter begs for an immediate resolution, we shall stay the suspension of Respondent's law license for 120 days so that the estate matter may be finally and conclusively resolved. On or before the end of 120 days, Respondent shall demonstrate to this Court that the estate matter has been fully and finally resolved. If the estate matter has been fully and finally resolved, the suspension of Respondent's law license will not go into effect. However, if the estate matter has not been fully and finally resolved, the stay will automatically be lifted and Respondent's law license shall be suspended. Because we also recognize that final resolution of the estate matter will require a ruling from the County Commission of Wood County _ over whose time frame Respondent has no control _ we order that if, for any reason, the matter is not concluded within 120 days, Respondent shall file with this Court a report setting forth in detail the reasons therefor. At that time, this Court will take such action with regard to Respondent's law license as is deemed appropriate under the circumstances.

(Mike Frisch)

Not Disbarred But Suspended

An attorney who was disbarred in Missouri after defaulting on ethics charges was indefinitely suspended as reciprocal discipline by the Kansas Supreme Court. The proceeding in Missouri did not establish violations by clear and convincing evidence. However, the attorney was subject to discipline as a result of his failure to participate in the Kansas proceeding. (Mike Frisch)