Friday, February 27, 2015

Fall From Prominence

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.

(Mike Frisch)

February 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Passing Of A Giant

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)

February 27, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

Violent Crime Is Serious Misconduct

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.

(Mike Frisch)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Costs Of Misconduct

The Washington State Supreme Court has imposed a six-month suspension of an attorney for pervasive neglect of a personal injury matter.

The court

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.

(Mike Frisch)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Young And The Meritless

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.

The misconduct

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).

The court

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.

(Mike Frisch)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thefts From Elderly Client Draws Disbarment

The Rhode Island Supreme Court accepted the consent disbarment of a convicted attorney.

WRPI.com reported

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.

(Mike Frisch)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

File This Under The Heading "Cautionary Tale"

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 board

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.

Update:

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)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

A Sanction With Teeth

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.

(Mike Frisch)

February 26, 2015 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Gone To Texas

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)

February 26, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

No Suspension For Failure To Disclose Juvenile Arrest

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.

The court

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)

February 25, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reprimand And Probation For Pattern Of Misconduct

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.

(Mike Frisch)

February 25, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

In Concert

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."

(Mike Frisch)

February 25, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Notice Of Claim Lapse Absolves Insurance Company

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.

(Mike Frisch)

February 25, 2015 in Clients | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

New D.C. Opinion On Law Firm Departure Penalties

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)

February 24, 2015 in Hiring, Law Firms | Permalink | Comments (0) | TrackBack (0)

Hold The Phone

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)

February 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Lien On Me

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.

The 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.

(Mike Frisch)

February 24, 2015 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

No Collateral Estoppel For Sanction Order

The New York Court of Appeals has held that collateral estoppel does not apply in an attorney discipline proceeding under these circumstances

The issue presented by this appeal is whether collateral estoppel applies in respondent attorney's disciplinary proceeding to bar her from challenging the findings of a United States Magistrate Judge made in the context of a sanctions motion. Under the circumstances presented here, we hold that respondent did not have a full and fair opportunity to litigate the issue of her alleged misconduct.

The attorney represented a trust in a matter involving the SEC. The SEC sought and obtained sanctions against the attorney. The Magistrate Judge found that the attorney had engaged in a knowing falsehood.

The Times Union reported on the $1 sanction imposed on the attorney (a former law professor) and her censure.

The court rejected the attempt of disciplinary authorities to give collateral estoppel effect to the finding

the determination here was made on papers-- without cross-examination or the opportunity to call witnesses. Although [attorney] Dunn did testify before the Magistrate, it was in the context of the motion for reconsideration and was for the purpose of determining whether the Trust's assets should be unfrozen. Essentially, the issue before the Magistrate there was whether the Annuity Agreement was new evidence that the SEC could not have discovered in a timely fashion through the exercise of due diligence. While the issue of whether Dunn had made false statements in her written declaration concerning her prior knowledge of that agreement may have been relevant, it was certainly not the focus of the hearing on the motion. The cursory nature of the sanctions proceeding itself failed to provide a full and fair opportunity to litigate the issue.

Contrary to the Committee's argument that the inability to invoke collateral estoppel would cause extensive delay in attorney disciplinary proceedings, it is not necessary to await a final judgment in the underlying action. Rather, the Committee remains free to prove the alleged misconduct at issue.

The court thus reversed the decision of the Appellate Division. (Mike Frisch)

February 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Qualified Privilege For Attorney's Prelitigation Statements

The New York Court of Appeals has held that a qualified litigation privilege applies to an attorney's statements in anticipation of litigation.

The case involved letters sent by counsel to a former employee of his client who was suspected of removing confidential information prior to his departure.

The letters accused the employee of taking confidential and proprietary information, demanded its return and directed that the employee and new employer cease and desist from contacting clients.

The departed employee sued for defamation.

The court

This appeal requires this Court to answer the open question of whether statements made by attorneys prior to the commencement of litigation are privileged. We hold that such statements are protected by a qualified privilege. If the statements are pertinent to a good-faith anticipated litigation, no cause of action for defamation can be based on those statement...

The rationale supporting the application of privileged status to communication made by attorneys during the course of litigation is also relevant to pre-litigation communication. When litigation is anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation. Attorneys often send cease and desist letters to avoid litigation. Applying privilege to such preliminary communication encourages potential defendants to negotiate with potential plaintiffs in order to prevent costly and time-consuming judicial intervention. Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis for a defamation suit...

 To ensure that such communications are afforded sufficient protection the privilege should be qualified. Rather than applying the general malice standard to this pre-litigation stage, the privilege should only be applied to statements pertinent to a good-faith anticipated litigation. This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client's adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel's ethical obligations.

The court affirmed the dismissal of the defamation action. (Mike Frisch)

February 24, 2015 | Permalink | Comments (1) | TrackBack (0)

Quick On the Contempt Trigger

The New York Commission on Judicial Conduct has imposed a censure of a Utica City Court judge for his holding two disruptive defendants in summary contempt.

In one matter, the judge found five contempts in one proceeding and ordered five consecutive 30 day sentences.

In the other, the defendant got 30 days for "smirking."

On two occasions respondent abused his judicial power by summarily holding defendants in contempt of court and depriving them of their liberty without due process. One defendant, who was disrespectful during a sentencing proceeding, was sentenced to a total of 150 days in jail on five separate counts of summary contempt, which respondent imposed in quick succession without issuing appropriate warnings or providing the defendant with an opportunity to make a statement in defense or extenuation of his conduct. Another defendant was held in contempt and sentenced to 30 days in jail for "smirking" as he was leaving the courtroom after the proceeding had ended. In  before exercising his contempt power and sending the defendants to jail.

The Commission also expressed concern about other courtroom demeanor issues

While the record before us depicts a judge who holds defendants and lawyers to exacting standards of courtroom behavior and is quick to lecture them for perceived displays of disrespect (e.g., scolding Mr. Blount's lawyer and telling him to "shut up" when he quietly spoke to his client), respondent's own behavior fell short of the required standards. On several occasions he made injudicious, disparaging comments to and about attorneys. Respondent twice referred to a prosecutor as "a cigar store Indian" for not speaking during plea discussions. Such language was snide and demeaning, although we do not consider the term racially offensive in this context (see Matter of Duckman, 92 NY2d 141, 151 [1998] [judge described prosecutors as "mannequins" and "puppets" as part of a pattern of "open-court sarcasm and ridicule"). In another case, involving a 74-year old defendant who pled guilty to Disorderly Conduct, respondent stated derisively that the conviction gave the prosecutor "another notch on his belt." In a case where the prosecutor proposed a plea involving forfeiture of funds seized from the defendant, respondent speculated that the district attorney "wants to buy a new couch for his office" or "wants a new laptop or whatever." Respondent's flippant remarks were not only discourteous but impugned the lawyers' integrity and undermine their role in the eyes of defendants and the public, which is inconsistent with established ethical standards requiring judges to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to treat lawyers with courtesy, dignity and patience...

The commission's press release is linked here.

The press release notes another allegation

 The Commission dismissed an allegation that Judge Popeo had used a racial epithet in an off the record courtroom conversation with a lawyer. In dismissing the charge, the Commission noted the "conflicting testimony" and the difficulty of proving and rebutting a charge concerning a comment allegedly made off the record six years earlier.

 (Mike Frisch)

February 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

Former Prosecutor Suspended For Failure To Communicate With Victim

A decision from the Maryland Court of Appeals is described in the court's headnote

An indefinite suspension with the right to re-apply for admission to the bar no sooner than 60 days after the beginning of the suspension is the appropriate sanction for a former Assistant State’s Attorney who failed to communicate at all with the victim or victim’s representative in a child sexual abuse case to which he was assigned, with the result that (1) his office failed to comply with its constitutional and statutory obligations toward the victim, (2) he provided incorrect information to the Circuit Court in connection with a request to postpone the trial, (3) the sentencing court did not have the benefit of a victim impact statement at the time of sentencing, and (4) the child victim and victim’s foster mother were not aware of the prosecution or of the probation condition requiring the defendant to have no contact of any kind with the victim. MLRPC 1.3 and 8.4(a) & (d).

Judge Watts, joined by Judges Battaglia and Harrell, concurred and dissented

This attorney discipline proceeding involves a lawyer who displayed an egregious lack of diligence and candor in his capacity as an Assistant State’s Attorney representing the State in a prosecution against a defendant charged with committing crimes against a child. Under this attorney discipline proceeding’s unique circumstances, without hesitation, I would hold that the hearing judge’s finding that Bruce Michael Smith (“Smith”), Respondent, was credible is not entitled to deference from this Court and that clear and convincing evidence established that Smith violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 3.3(a)(1) (Candor Toward the Tribunal) and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation).

The concurring/dissenting judges would require a minimum suspension of six months.

The misconduct was discovered by the States Attorney, who terminated the attorney's employment and reported the matter to the disciplinary system. (Mike Frisch)

February 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)