Tuesday, September 2, 2014
A case highlight from the September 2014 edition of the California Bar Journal
A San Francisco Bay Area attorney has lost her license to practice law for using the legal system to try to control her adult son and for misappropriating his settlement funds. ELIZABETH M. BARNSON KARNAZES [#118922], 59, of Foster City, was disbarred June 13, 2014 and ordered to make restitution and comply with rule 9.20 of the California Rules of Court.
Karnazes was initially reviewed on evidence of nine counts of misconduct, but the Review Department of the State Bar Court ultimately found her culpable of seven of those charges, including failing to maintain records of client funds or maintain client funds in her client trust account and of misappropriation and commingling. The three-judge panel wrote that Karnazes was so focused on controlling her son, Zachary, that she lost sight of her ethical obligations.
“Ignoring his desperate need for his funds, Karnazes utilized her position as Zachary’s attorney to escalate the pressure she applied on him over a three-year period when she continued to refuse payment, and ultimately attempted to take control by becoming conservator of his estate,” Joann M. Remke, then the State Bar Court’s presiding judge, wrote on behalf of the panel.
“This conduct illustrates the danger of an attorney, trained in persuasion and in a superior position to exert influence, who uses such skills and circumstances to force a client – in this case, her son – to bow to her wishes,” Remke wrote.
In January 2005, Karnazes signed a fee agreement to provide legal services for her son, who was 18 at the time, and ultimately represented him in at least three different lawsuits. One was for injuries Zachary allegedly suffered in a drug treatment program; another for injuries allegedly suffered when a school administrator abused him on a camping trip; and a third for injuries he allegedly suffered due to physical abuse.
Karnazes settled the first two lawsuits in 2009 for $40,000 and $60,000 respectively, depositing the money in her client trust account. After attorney fees and $7,500 Karnazes had given him as an advance were deducted, Zachary was entitled to $33,739.45. Despite numerous requests in person and by telephone, Karnazes did not give him the money, leading him to send her five written requests in October and November. At the time, her son had been unemployed since May 2008 and was living on disability payments.
“He had to travel by bus to and from medical appointments, could not afford his own telephone and ate free meals at a soup kitchen,” Remke wrote. “Despite Zachary’s requests for payment, Karnazes did not distribute his funds. Instead, she accused him of hating her and abandoning her when she needed him most.”
In August 2009, Karnazes deposited a check for $97,750, money she drew against her home equity account, into her client trust account, immediately withdrawing $50,000. A few months later, she deposited another $22,500 of her own funds into the account and gradually withdrew it over time.
Zachary filed a complaint with the State Bar the following summer over his mother’s refusal to give him his settlement money. Several months later, Karnazes filed a petition in San Mateo County Superior Court seeking to be appointed conservator of Zachary’s estate. At the time she was still representing him in the third lawsuit she filed on his behalf and claimed he was 100 percent disabled for mental health reasons. The court ultimately denied Karnazes’ petition with prejudice, concluding Zachary was capable of making his own decisions. The court of appeal affirmed the decision and the California Supreme Court denied Karnazes’ petition for review.
Meanwhile, in 2010 Karnazes obtained a default judgment in her son’s third lawsuit and deposited $56,995 she received from the defendant’s insurance company in her client trust account. At that point, after deducting her fees and costs, Karnazes owed her son at least $57,496.15. On March 29, 2011, she offered to give Zachary a cashier’s check for $63,000 on condition that he release his right to any disputed funds from the settlements and not discuss the terms of their agreement. Zachary refused the offer.
On June 21, 2012, four days before the start of her disciplinary trial, Karnazes gave Zachary a check for $53,507.97 and an accounting that omitted multiple withdrawals from the client trust account, failed to account for the whole time she was holding his funds and overstated her attorney fees. Assuming the costs she was claiming were accurate, Karnazes should have paid him $3,988.18 more than she gave him. She was ordered to pay that amount plus interest in restitution.
Karnazes had one prior record of discipline, a January 2010 public reproval that followed her misdemeanor conviction for trespassing. Karnazes was initially charged with grand theft and theft from a merchant for stealing items from two stores, but pleaded not guilty by reason of insanity. Two court-appointed doctors examined her and concluded she was sane at the time of the thefts. The district attorney amended the charges to include a misdemeanor trespass violation and Karnazes pleaded no contest to that charge.
The Arkansas Professional Conduct Committee - Panel A - has reprimanded an attorney who engaged in a conflict of interest by representing both husband and wife in a case involving felony sexual abuse allegations made by the wife's daughter
The conduct of Max M. Horner, Jr. violated AR Rule 1.7(a) in that (1) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest; and his representation of Mrs. Rackley was directly adverse to Horner’s stated trial defense strategy for her husband. (2) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter, and Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mr. Rackley would be materially limited by the lawyer's responsibilities to Horner’s other joint client, Mrs. Rackley. (3) Horner attempted to jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mrs. Rackley would be materially limited by the lawyer's responsibilities to another client, Mr. Rackley; and at Mr. Rackley’s trial, Horner had Mrs. Rackley take the Fifth Amendment to attempt to keep her testimony from Mr. Rackley’s jury, when her testimony clearly might have been favorable to Mr. Rackley, especially to counter or explain adverse testimony by State witnesses Luebke and Thessing about their conversations with Mrs. Rackley. Arkansas Rule 1.7(a) requires that, except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.
The husband's conviction was reversed as a result by the Arkansas Supreme Court
Because Mr. Horner was required under his ethical obligation to adequately represent both clients’ interests, even if conflicting, he was not free to explore all avenues in developing his trial strategy to present the best possible defense for appellant at trial. In developing his impeded trial strategy, Mr. Horner ethically could not ignore the fact that Mrs. Walters’ testimony, whether favorable to appellant or not, could further implicate her as well. Therefore, even though he testified that he believed that her interests were “united” with appellant’s, he was faced with the ethical dilemma of representing two clients simultaneously who had conflicting interests.
A Virginia attorney has consented to disbarment in the wake of a criminal conviction.
The Washington Post reported on the offense
A Fairfax County attorney was sentenced to six years in prison Thursday for embezzling nearly $500,000 while he was entrusted to care for an elderly woman and her estate, according to the Virginia attorney general’s office.
James G. Kincheloe, Jr., 67, who lives in Fauquier County, was convicted of a single count of embezzlement in the case in Fairfax County Circuit court in July. Kincheloe entered an Alford plea, meaning he did not admit guilt but acknowledged that prosecutors had enough evidence for a conviction.
Fairfax County Judge Jane M. Roush ruled that Kincheloe will have to repay more than $483,000 to the estate of Pearl Buckley, a Fairfax City resident who died in 2009 at the age of 90. A separate civil suit by the family claimed almost $900,000 was taken from Buckley.
There has been a fair amount of discussion about the ethical issues that attorneys may face in representing clients in the medical (and legal in some states) marijuana business.
Colorado leads the way and has what may be a first -- an attorney disbarred for misconduct in the representation of a medical marijuana business.
Howver, the reasons for the sanction are not on the cutting edge of client representation
Respondent presented fabricated documents and false statements to the People during a disciplinary investigation, which prevented the disciplinary system from functioning as the Colorado Supreme Court intended that it should. He produced those same documents in the Green‐VisionTek litigation and testified to their authenticity at trial. Because his falsifications and misrepresentations reflect such a complete deviation from the appropriate ethical standards for members of the legal profession, the Hearing Board concludes that Respondent must be disbarred.
The attorney's client was the seller of the business. He fabricated emails to insert the suggestion that he had so advised the potential buyer.
The false emails initially were produced in response to bar investigation resulting from opposing counsel's complaint over the attorney's handling of his secrow account. The emails were then produced in civil litigation. (Mike Frisch)
Friday, August 29, 2014
An Oklahoma attorney found to have engaged in unauthorized Colorado practice has been disbarred in Colorado.
The attorney had purchased two Colorado accounting firms in partnership with a Colorado accountant. Over a three-year period, he set up multiple law offices in Colorado and held himself out a licensed to practice out of those offices.
He applied for Colorado bar admission but abandoned the effort after failing to provide information sought in connection with the application.
Another example (there are many others) of losing a license that never was granted. (Mike Frisch)
Thursday, August 28, 2014
The standard of proof for a violation of disciplinary probation is clear and convincing evidence, according to a recent decision of the North Dakota Supreme Court.
The court found that the attorney-probationer had charged excessive fees and failed to supervise non-lawyer staff
the billing records provided by [the attorney] reflect that she double-billed, she billed for overhead items, and she billed at the wrong hourly rate...
[She] argues her fee is reasonable even though it contains minor billing errors because, she claims, a bill containing de minimus billing errors has never resulted in discipline in North Dakota. She also argues she performed a substantial amount of legal work which was not billed and which was substantially greater than the total amount of billing errors. Despite these contentions, [her] improper billing previously discussed is sufficient to establish that her fee is unreasonable...
There is a dissent as to sanction
Upon revocation, we must determine the appropriate length of suspension. The majority does not answer this directly; instead suspending [the attorney] for 30 days in a combination of imposing new discipline and revoking the stayed suspension. I respectfully disagree with the adequacy of that action as it relates to revocation of the stayed suspension. I made plain in the 2011 proceeding that I thought a 90-day suspension was appropriate and that staying the suspension was ill-advised. See Kellington, 2011 ND 241, ¶ 19, 809 N.W.2d 298 (Crothers, J., dissenting). I continue to believe principles of graduated and proportional discipline require revocation of the stay and imposition of suspension for the full original 90 days. That is especially true when viewed in the context of this disciplinary proceeding, which is [her] eighth since 1996. See id. at ¶ 16 (Crothers, J., dissenting).
An attorney convicted of a tax offense has been suspended for two years by the New York Appellate Division for the Second Judicial Department.
The court noted
In determining the appropriate measure of discipline to impose, the respondent asks that the Court consider the following mitigating factors: his excellent reputation—both personally and professionally—for honesty, integrity, and conscientious adherence to standards of professional ethics; the aberrational nature of his misconduct; his full and complete acceptance of responsibility for his misconduct; his genuine remorse and contrition; his prompt and full restitution to the Internal Revenue Service; the unrelated nature of the misconduct to the practice of law; the lack of harm to any client; his two decades of practice with an unblemished disciplinary record; the price he has already paid professionally (leaving a law partnership he helped to create); time already spent under interim suspension; his community and volunteer activities; his devotion to his family; and the crucial role the respondent plays in the ongoing psychological rehabilitation of his son.
Notwithstanding the aforementioned mitigating factors, the respondent knowingly filed false returns for several years, taking deductions and reporting losses to which he was not entitled, and thereafter engaged in conduct to cover up his criminal conduct. The respondent earned substantial income during the years in question, and when audited, could easily have paid the back taxes, penalties, and interest, but chose instead to lie to the Internal Revenue Service, engaging in deceitful and obstructive conduct. He conceded that he had no justification for his misconduct, other than the fact that he had chosen a lifestyle above his means.
The court gave credit for time served on interim suspension for the conviction. (Mike Frisch)
Wednesday, August 27, 2014
The Maryland Court of Appeals has disbarred an attorney well-known for his television advertising.
Danny Jacobs of The Daily Record had the story of the bar proceedings.
If you’re a Baltimore native of a certain age, you might recognize the ball and pool table pictured above.
Give up? That’s the “legal rights eight ball” that opens a commercial featuring personal injury lawyer Neil Lewis, who says in the spot he does not want you to get stuck behind it.
I have never met Neil Lewis but I have not forgotten that commercial. Which is why, on Thursday, when I saw a lawsuit filed in Baltimore City Circuit Court against Neil Lewis, my first thought was, “The Lewis Law Line?”
I watched that commercial a few times Thursday as I was writing about the Attorney Grievance Commission seeking to halt Lewis from practicing law.
...The juxtaposition between the AGC’s allegations and Lewis’ commercial is jarring. Lewis says he has recovered “millions of dollars” in damages for his clients; the AGC alleges Lewis deposited settlement checks on behalf of clients and used the money for unauthorized purposes. Lewis says, “I receive no fee, nor is there any cost to you unless we win”; the AGC counters some of Lewis’ clients were hit with collection lawsuits from medical services providers that Lewis was supposed to pay with money from a settlement or verdict.
I’ll keep tabs on the city lawsuit and AGC disciplinary petitions as they move forward.
In the meantime, one aspect of my story left me wondering. A hearing judge wrote in her findings that Lewis had approximately 800 open files in the year he was being investigated. To any personal injury lawyers out there: Is that a lot of files for a lawyer to have open at once?
The disbarment was based on a joint consent petition filed by the attorney and the Attorney Grievance Commision. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging that a Kentucky lawyer engaged in unauthorized practice of law in connection with various horse-related matters
On October 7, 2003, Respondent was admitted to practice law in Kentucky. On September 30, 2009, she registered for non-practice exemption status with that State, wherein she would remain in good standing as a member of that bar without complying with any of the jurisdiction’s continuing legal education requirements, but she would not be permitted to practice law in Kentucky.
Between at least July 6, 2013, and April 13, 2014, Respondent represented four different clients in steward’s inquiries relating to allegations of misconduct by horse racing owners and trainers conducted by the Illinois Racing Board ("Board") pursuant to Illinois Horse Racing Act of 1975, 230 ILCS 5/31.
Between at least July 6, 2013, and April 13, 2014, in the following four matters, Respondent appeared for proceedings held by stewards on behalf of owners or trainers whose conduct was the subject of inquiries...
Between at least September 30, 2013, and February 19, 2014, Respondent represented Stevanna E. Turner ("Turner") in a matter before the United States Trotting Association ("USTA") relating to allegations of a misuse of banned substance in a horse owned by Turner during a horse racing event at the Edgar County fair.
On February 19, 2014, USTA Board of Review held a hearing relating to an appeal by Turner regarding the ruling that Turner’s horse had tested positive for a banned substance. Respondent appeared at the hearing as Turner’s counsel.
During the hearing...Respondent was identified by various individuals, including the chair of the USTA Board of Review, at various times as "counsel for defendants", "appellants’ counsel", "defense counsel", "attorney", and "counsel." At no time did Respondent deny or correct the descriptions of her as counsel or attorney.
By failing to correct other individuals’ description of her at counsel or attorney, Respondent misled the USTA Board of Review. Respondent intentionally led the USTA Board of Review to believe that she was authorized to practice law in Illinois, when she was not.
During the hearing...while arguing the case on behalf of Turner, Respondent made legal arguments regarding rules of the Illinois Department of Agriculture; USTA rules; the jurisdiction of the USTA; and the integrity of a test sample of the drug purportedly administered to Turner’s horse.
The complaint further alleges failure to cooperate in the bar's investigation. (Mike Frisch)
Monday, August 25, 2014
The Fen-phen litigation (and other serious criminal misconduct) has led to another disbarment.
The Kentucky Supreme Court accepted the consent disbarment of a 34 year old attorney convicted of mail fraud, wire fraud and other offenses
Count I charged that Movant committed mail fraud in connection with a lawsuit brought in the wake of the well-known, and notorious, Fen-phen litigation to recover funds wrongfully diverted from the Fen-phen plaintiffs. Movant devised a scheme to divert to his own personal accounts, S 14,963.05 that his firm collected for the Fen-phen clients.
Count III of the information charged Movant with committing wire fraud by devising a scheme by which he fraudulently gained access under false pretenses to a bank account of his associate, Angela Ford, and stole money from her. Movant used that money to cover amounts he had stolen from Clients, and which he had diverted to his personal use, including his role in a conspiracy to illegally distribute synthetic marijuana as set out in Count 5.
The attorney also ackowledged mail fraud in an estate matter, conspiracy to distribute synthetic marijuana, tax offenses and obstruction of justice. (Mike Frisch)
Friday, August 22, 2014
The Oregon Supreme Court imposed a 90-day suspension for misconduct that
arose as a result of settlements that the accused had brokered for a group of clients—all sexual abuse victims—in civil actions brought against the Portland Archdiocese, the State of Oregon, and Father Michael Sprauer.
we first observe that, when the accused began his representation of the Sprauer plaintiffs, he recognized that, although their interests did not presently conflict, they could conflict at some point in the future. He subsequently wrote letters to each of his clients outlining the advantages and disadvantages of joint representation, advised them to obtain independent legal advice, and obtained their consent to proceed with joint representation. As noted, the JRAs that the plaintiffs signed explained that the accused would endeavor to negotiate each client’s claims individually and that he would have no role in any allocation decision.
When the accused began negotiations with the Archdiocese, he proceeded as agreed. The accused conferred with his clients individually and helped each decide on an acceptable individual settlement offer. As the Bar correctly recognizes, when the accused added those amounts together and offered to settle with the Archdiocese for the resulting total, the accused did not violate any rule of professional conduct. However, when the Archdiocese offered to settle for a figure that was nearly twice that total, a conflict arose. Each plaintiff had an interest in obtaining as great a portion of the surplus settlement as he could. Under those circumstances, the accused was ethically prohibited from deciding how to allocate the sum offered, and the accused does not contend otherwise.
When the conflict arose, the attorney failed to secure the required informed written consent and
An additional problem for the accused—and, in our view, an even more significant one—is evident in his division of the proceeds of the state settlement. Before negotiating the state settlement, the accused had informed his clients that, “[i]f all of you agreed to settle your cases on the same percentage basis as we did in the past, then I do not have a conflict.” However, when the accused accepted the state’s offer to settle the claims of all the Sprauer plaintiffs for a $1.05 million lump sum, he did not, in fact, distribute those funds on that basis. In his brief, the accused does not address that failure nor allude, as he did at the trial panel hearing, to possible “mathematical errors.” From the letters that the accused sent to the Bar, it appears that the accused decided, after agreeing to settle with the state, which client should receive what portion of the state settlement. The accused’s method of allocation may have been exceedingly fair, but each dollar that the accused allocated to one plaintiff was a dollar that he did not allocate to another—an allocation decision that, as he recognized in his JRAs, was one in which he was to have no role. The accused’s decision to allocate the sum of $7,500 to New also was problematic for the same reason. The distribution to New may have been fair—perhaps more than fair, given New’s criminal history and the accused’s willingness to waive attorney fees and costs—but by allocating $7,500 to New, the accused deprived other client of those funds.
The court rejected charges of misrepresentations to the clients.
As to sanction
What we do find is that the accused’s substantial experience in the law had made him aware of the ethical problems that could arise if he were to participate in the allocation of a lump sum settlement offer; yet—particularly with respect to the state settlement—that is exactly what the accused did. In addition, the accused did not obtain the informed consent required by the rules of professional conduct at issue here, and, as a result, he exposed his clients to a risk of injury. Those are significant violations that, in light of the accused’s disciplinary history, warrant more than a 30-day suspension. We conclude that a 90-day suspension is appropriate.
The Portland Tribune reported on the case and noted
Gatti has been disciplined by the Supreme Court before.
In 2000, the justices issued a public reprimand after he posed as a chiropractor while he attempted to obtain information about medical reviews by an insurance company that denied injury claims of workers.
The court held that he violated a State Bar rule against deceit, but Gatti said he used deceit as an investigative tool.
Gatti claimed victory when the high court modified the rule in 2002, after federal prosecutors said it would hamper their investigative efforts when they directed others to engage in deceit.
A good teaching example of the dangers of settling claims for multiple clients. (Mike Frisch)
The Nebraska Supreme Court imposed an 18-month suspension of a former county attorney convicted of misconduct in office.
The same court had previously reversed the criminal conviction
As the Keith County Attorney, John Blake Edwards established a pretrial diversion program. After an audit by Nebraska's state auditor and an investigation by the Nebraska State Patrol, Edwards was charged with three counts of theft by unlawful taking for checks written from diversion program funds. Edwards was acquitted by a jury of two of the theft counts and convicted of the third, which was based on a check he wrote on a diversion program account to a local trapshooting team (trap team). He was sentenced to probation. Edwards appeals. We find plain error in the jury instructions, and therefore, we reverse, and remand for a new trial.
The attorney pleaded guilty to a single count of official misconduct after the remand.
Because the attorney was suspended on an interim basis, he has fully served the suspension. The effect of the decision here is to automatically reinstate him to practice. (Mike Frisch)
A California attorney convicted of a property damage misdemeanor hit and run has been publicly reproved by the State Bar Court.
On the evening of July 9, 2009, [the attorney] attended a reception, drank a beer, and later argued with his girlfriend. While driving from the reception on a section of the Pacific Coast Highway in Marina Del Rey, he took his eyes off the road to read a text message. As a result, he hit the right rear bumper of the car in front of him, which was stopped to allow several pedestrians to cross the street in a well-marked crosswalk. [He] did not stop, even though he felt the collision and noticed damage to his right side-view mirror. Instead, as observed by police in the vicinity, [he] drove away at high speed, making three turns on narrow residential streets before the officers who pursued him could stop him.
The attorney, who was driving a silver BMW, testified that he failed to stop because he could not find a parking space. He "vacillated" on this contention under cross examination. (Mike Frisch)
The Wisconsin Supreme Court has imposed reciprocal discipline based on a sanction ordered by the Minnesota Supreme COurt.
Citypages blog had the story of the Minnesota action
Rebekah Nett, the Hastings-based attorney who wrote a bankruptcy filing we characterized as the craziest of all time back in 2011, has finally been suspended from practicing law.
Nett was raised as a member of a religious group called R.C. Samanta Roy Institute of Technology, and in the aforementioned filing, she talked a bunch of smack about Catholics.
From our December 2011 blog post:
In the brief, filed November 25, attorney Rebekah Nett accuses Judge Nancy Dreher of being a "Catholic Knight Witch Hunter," declares that the court system is "composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church," and even labels a bankruptcy trustee, Colin Kreuziger, "priest's boy."
Nett missed a hearing on November 17 because opposing counsel Nauni Manty had given her notice that it was set for 1:30 instead of 1. Nett and her client, Naomi Isaacson, took that to suggest a conspiracy by the judge and the other lawyers, who were "of the same race and religion.
Nett also made reference to "dirty Catholics," the Pioneer Press reports, adding that some of her more outrageous filings came in bankruptcy cases of entities related to SIST, a group that some former members allege is a cult.
Nett's anti-Catholic comments drew the attention of the Catholic League, which went on to file a complaint with the Minnesota Office of Lawyers Professional Responsibility Board. The Board recommended Nett be suspended for two years, but the state Supreme Court opted for a lighter nine month suspension, the PiPress reports. A referee previously recommended a suspension of at least six months.
The reciprocal sanction is a one-year suspension. (Mike Frisch)
An attorney who was disciplined for the unauthorized practice of law in Delaware (where he had never been admitted) has been reciprocally suspended for one year by the Pennsylvania Supreme Court, which had admitted him to practice in 1965.
The attorney had represented Delaware residents in more than 100 matters over a seven year period. The cases involved motor vehicle accidents that occured in Delaware.
Some of the cases were referred to the attorney from a Wilimington doctor. The attorney met with some of the clients in the doctor's office. Other cases came from "television advertisements which targeted Delaware residents." The attorney met with some of these clients in the Delaware office of his law firm.
The Pennsylvania court accepted a joint petition for reciprocal discipline. (Mike Frisch)
Thursday, August 21, 2014
The Kentucky Supreme Court has affirmed a Bar Association Ethics Opinion that
...deals[s] with the ethical ramifications of one aspect of..."horse trading between prosecutor and defense counsel."
The United States Attorneys for the Eastern and Western Districts of Kentucky had sought review of Ethics Opinion E-435, which found that the use of prospective waivers of ineffective assistance of counsel claims as part of a plea bargain violated governing ethics rules.
The court confirmed that such waivers create a non-waivable conflict of interest between defense counsel and the client, improperly limited the defense attorney's liability for client malpractice and "induce, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."
The opinion was authored by Chief Justice Minton. (Mike Frisch)
Wednesday, August 20, 2014
The District of Columbia Board on Professional Responsibility has amended its policies for compensating lawyers who defend attorneys accused of ethics violations.
An attorney who seeks counsel under the new policy must establish "financial hardship" under standards established by the BPR by filing an ex parte affidavit. The accused attorney then may select counsel who will be paid at the rates established under the Criminal Justice Act with a $25,000 fee cap.
Reimbursement for the work of law clerks, paralegals and investigators is also available.
Unbelievably, free counsel can be obtained before any charges are filed.
Attorneys cannot get free counsel for a reinstatement proceeding or for a reciprocal discipline matter unless the reciprocal matter is joined with other charges.
So far as I am aware, the District of Columbia is the only jurisdiction where lawyers charged with disciplinary violations can get a defense attorney provided free of charge.
Indeed, many jurisdictions impose costs on an attorney found in violation of ethics rules. Heaven forbid D.C. would ever consider imposing costs.
By the way, the representation is not for free. It's paid by D.C. Bar dues.
Personally, I can think of more appropriate uses for mandatory bar dues.
For starters, we could increase payments under the Clients' Security Fund to victims of lawyer thefts.
This policy reflects something I've long been aware of -- the D.C. BPR cares as much (if not more) about protecting accused lawyers than it does about what is supposed to be its reason to exist - protecting the public from unfit lawyers.
Update: In response to a query from a reader of this blog, I wish to make something clear.
I am entirely in favor of an accused attorney having counsel. Indeed, competent defense counsel can play an essential role in assuring a fair process.
I just strongly object to the funding of defense counsel through mandatory bar dues. (Mike Frisch)
Tuesday, August 19, 2014
A North Carolina attorney has been reprimanded for misconduct in a "protracted and extremely contentious" domestic relations matter.
The misconduct involved ex parte e-mails to the judge and her law clerk.
While the attorney had contended that she was only reponding to e-mails submitted by the opposing party, the reprimand states that the attorney was "obligated to take the high road" and refrain from the ex parte contacts.
The Grievance Committee also expressed concern about an e-mail that the attorney sent to the opposing party (presumably not represented because there was no allegation that the communication violated Rule 4.2) that got "personal"
You're a terrible husband, father, lawyer and human being.
The committee expressed an expectation that the attorney would heed and remember the sanction. (Mike Frisch)
Monday, August 18, 2014
From the web page of theTennessee Supreme Court
The Tennessee Supreme Court has reinstated a Memphis attorney’s 60-day suspension from the practice of law for his behavior during a trial.
Attorney R. Sadler Bailey was representing a plaintiff in a medical malpractice case in 2008. On the opening day of trial, in a case that already had become volatile among the attorneys, Mr. Bailey became upset when it appeared that Circuit Court Judge Karen Williams was about to rule against his client. After vehement arguments between the attorneys for the parties, the defense began their opening statements and Mr. Bailey objected 12 times, most made in a manner that was in defiance of Judge Williams’ instructions.
The next day, Mr. Bailey criticized Judge Williams multiple times in court, and the defense sought a mistrial, which the judge initially denied. After continued complaints from Mr. Bailey, a mistrial was declared based on Mr. Bailey’s “contentious conduct toward the court.”
Both Judge Williams and defense counsel filed a complaint regarding Mr. Bailey with the Board of Professional Responsibility (BPR), which is responsible for investigating complaints and initiating disciplinary proceedings against attorneys in Tennessee.
A BPR hearing panel heard from four witnesses who described Mr. Bailey’s behavior as “disrespectful,” “frenetic,” and “harsh.” Mr. Bailey asserted that he was merely fulfilling his duty to zealously represent his client.
The Panel found that Mr. Bailey violated several Rules of Professional Conduct and that his extensive experience, misconduct during the course of the trial, and lack of remorse for his behavior supported imposing a 60-day suspension. Mr. Bailey appealed to the Chancery Court for Shelby County, which agreed that the violation of the Rules of Professional Conduct occurred, but decided that a 60-day suspension was not warranted. The BPR appealed to the Supreme Court.
The Supreme Court concluded that Mr. Bailey’s 60-day suspension is consistent with Tennessee cases involving similar violations of the Rules of Professional Conduct and noted that the 60-day suspension is well below the minimum of six months that national standards of the American Bar Association recommend. The court also rejected Mr. Bailey’s claim that his actions were necessary to properly represent his client.
“Attorneys who cross this line may not avoid punishment by claiming that their misconduct served the greater good or the interests of their clients, as such exceptions would overwhelm the rules,” wrote Justice Cornelia A. Clark in the unanimous Opinion.
Read the opinion in R. Sadler Bailey v. Board of Professional Responsibility, authored by Justice Clark.
An attorney convicted in a drug distribution case has been disbarred by the Pennsylvania Supreme Court.
The attorney signed for and accepted four UPS packages that contained approximately 243 pounds of marijuana. The UPS agent was actually an undercover police officer.
The attorney was convicted at a bench trial and failed to report the conviction to the Bar.
And his attitude did not help
In keeping with Respondent's view that he did nothing wrong and simply signed for a package, it is clear that he failed to show remorse. Though he acknowledged his actions and testified that he was "very sorry to be in this position and the circumstances" that brought him bE)fore the Hearing Committee (N.T. p. 80), Respondent has not sincerely recognized the gravity of harm his convictions have brought to the reputation of the bar or the negative impact that his convictions have had on the public. There is no question that the refusal to acknowledge one's guilt and a lack of remorse are aggravating factors that must be taken into account.
He blamed the conviction on "overzealous prosecution." (Mike Frisch)