Tuesday, December 9, 2014

Not A Misdirected Hippie

The Ohio Supreme Court is considering an appeal from a report and recommendation to deny bar admission to a convicted felon.

The Board of Commissioners on Character and Fitness filed its report on September 5, 2014.

Libretti is 51 years old. He is second in his class at Cleveland-Marshall College of Law and is well liked by his fellow students and professors. He is scheduled to graduate in December 2014. There is no doubt that he is talented, intelligent, and hard-working.' The question to be answered by the Board is whether Libretti currently has the requisite character, fitness, and moral qualifications to become a member of the bar.

Applicant's criminal activity began when he was in college at the University of Denver and spanned the years of 1983 through 1990. Libretti was a drug dealer - initially selling marijuana and then moving on to dealing in cocaine. His activities were not that of some misdirected hippie: When he was indicted in January 1992, one of the charges was brought under the "Kingpin" statute - meaning he was an organizer, manager, or supervisor of a criminal enterprise. Conviction under the Kingpin Statute carried a minimum sentence of twenty years with a maximum sentence of life imprisonment.

He was released from prison after 16 years and thereafter engaged in the sale of spice.

He was indicted and acquitted of selling methamphetamine after his release.

The Citizens' Institute for Law and Public Policy has filed a brief in support of the applicant.

Amici curiae respectfully request the Court consider all the issues raised above in its evaluation of applicants with a felony conviction, and that it approve those applicants unconditionally in the absence of any present conduct rationally related to the practice of law that would prevent them from effectively practicing as a licensed attorney subsequent to passing the bar examination.

In light of the information presented, the Institute would also urge that applicants with felony records who will not be unconditionally approved to sit for the bar examination be given a deferral of between six months and two years whenever possible, during which they would be expected to continue to demonstrate behavior consistent with the fitness standards established by Gov. Bar R. I and, if deemed appropriate by the Court, to cure any concerns raised during the character and fitness process, rather than being forever precluded from sitting for the examination.

Oral aergument is scheduled for February 25, 2015. The pleadings index is linked here. (Mike Frisch)

December 9, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Monday, December 8, 2014

Facebook Message Violated Ethics Rules; Suspension Ordered

An attorney who had self-reported a Rule 4.3 violation was suspended for six months by the Kansas Supreme Court.

The attorney represented the biological father in an adoption proceeding. His client opposed the adoption.

After he had deposed her, he sent this message via Facebook to the 18-year-old biological mother.

'I wish to offer you some reasons why you should stand up and fight for your daughter. As you know, I am the attorney for [the biological father]. We held your deposition in my office. I wanted to give you the chance to make things right. This may be your last opportunity to be a mom for [the baby]. As I told you after your deposition in my office, it is not too late. You still have a wonderful opportunity to have a real relationship with your daughter if you so choose. I have attached a document for you to consider signing and bringing to court or to my office. It is a revocation of your consent to adopt. If you sign this document there is a very good chance that you will be able to call [the baby] your own and [the baby] will call you her mom. I can't begin to explain how beautiful and wonderful parenthood is. I have a little girl myself and she is my world just like you are your dad's world. [The baby] deserves to know her parents. She deserves to know that you love her and care for her as well. Do not let this opportunity pass you by because you will live with this decision the rest of your life and [the baby] will know someday what happened. [The adoptive parents] do not legally have to ever let you see her again after court (although they are probably trying to convince you otherwise with the idea of an 'open adoption'). The reason why you don't know about the trial was because they don't want you there because that doesn't help [the adoptive parents] case. This is your time to get rid of the guilt and standup and do what is right and what [the baby] deserves. She deserves to have her parents love and care for her. She deserves to know her grandparents and extended family. If she's adopted, she won't have that chance. [The biological father] wants to be her dad and to love her. She deserves that. I urge you to print, sign, and notarize this document and bring it to my office before court. Trial is June 27, 2013, at 9:00 a.m. at the Johnson County Courthouse, Division 15. I hope to see you and your father there.'

As indicated, he also sent the biological mother a consent form to sign.

The court

we agree with the Disciplinary Administrator's argument that the egregious nature of the respondent's conduct warrants a longer period of suspension than that recommended by the hearing panel. As the hearing panel noted, respondent "attempted to manipulate the biological mother and, as a result, interfered with justice." Respondent's conduct "amounted to emotional blackmail" of an unrepresented 18-year-old who was dealing with a process that was already "'emotionally exhausting.'" His "electronic message was designed to embarrass, burden, and create guilt in the mind of the biological mother." These "bullying tactics directly reflect on [respondent's] fitness to practice law as an attorney." Consequently, we hold that the respondent should be suspended for a period of 6 months. A minority of the court would impose a longer period of suspension. We unanimously order a reinstatement hearing under Rule 219.

The attorney must prove that reinstatement is appropriate. (Mike Frisch)

December 8, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Office Manager Settled Cases And Misappropriated; Attorney Suspended

The Kansas Supreme Court has ordered a three-month suspension of an attorney for misconduct that involved, among other things, the failure to supervise a non-attorney employee

With regard to KRPC 1.15 and 5.3, the facts are clear and convincing that respondent did not properly supervise his office manager, he failed to keep a master list of clients, and he failed to keep proper accounting records. These failures resulted in unauthorized settlement negotiations, delays or omissions of deposits or disbursement of funds, and misappropriation of monies. Had respondent acted with the care of a "professional fiduciary" (see KRPC 1.15, Comment [1] [2013 Kan. Ct. R. Annot. 556]) and provided "appropriate instruction and supervision concerning the ethical aspects" of the office manager's employment (see KRPC 5.3, Comment [1] [2013 Kan. Ct. R. Annot. 627]), the monetary losses may have been thwarted and certainly could be more accurately accounted for so that full restitution could occur. There is clear and convincing evidence that respondent violated KRPC 1.15 and 5.3.

Investigation into the client's complaint led to the discovery of other thefts by the office manager.

The attorney did not know of the misconduct of the office manager but "should have known." (Mike Frisch)

December 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Too Many Beers Lead To Forced Resignation Of Judge

A judge of the Clarksville Town Court was reprimanded and ordered to resign from office by the Indiana Supreme Court for the following conduct

 On January 16, 2014, Respondent was involved in an automobile accident in Louisville, Kentucky, that resulted in property damage to two parked cars and a fence. When later questioned by police at the hospital, Respondent admitted consuming alcohol prior to driving and having "too many" beers at a local area bar. Respondent refused to submit to a breathalyzer test or provide a blood sample. Noticing Respondent had glassy eyes and slurred speech, the officer arrested Respondent.

The judge pleaded guilty to criminal mischief  in the second degree.

As to future service

he shall be ineligible for future judicial service in Indiana unless/until he submits to, and successfully completes to the satisfaction of [the Judges and Lawyers Assistance Program] , a two-year monitoring agreement and treatment plan approved by JLAP.

(Mike Frisch)

December 8, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Conduct That Reflects Adversely

Any bets on the likely outcome of a disciplinary complaint recently filed by the Illinois Administrator?

The charges

On June 7, 2013, Respondent entered Reliance Bank in Creve Coeur, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that "this is a hold up; no alarms; no dye packs" or words to that effect and demanded money. The teller gave $7,290 to Respondent, who then fled from the bank with the money.

On August 2, 2013, Respondent entered First National Bank in Weldon Springs, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that "this is a hold up; no alarms; no dye packs; no bait money" or words to that effect and demanded money. Bank employees gave $5,602 to Respondent, who then fled from the bank with the money.

On September 20, 2013, Respondent entered First Bank in Marthasville, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that he wanted "50s and 100s from the vault; spread them out; wait 60 seconds before you hit the alarm" or words to that effect. Bank employees gave $43,677 to Respondent, who then fled from the bank with the money.

Police received a description of Respondent’s car, and later on September 20, 2013, an officer of the Missouri State Highway Patrol stopped him. When the trooper stepped out of his car, Respondent stepped out of his car, raised his gun and fired four shots at the trooper. At least one shot struck the trooper in the center of his chest. The trooper was wearing a protective vest which prevented Respondent’s bullet from penetrating his body. The trooper returned fire and struck Respondent in the leg, causing Respondent to fall and lose possession of his gun. Respondent tried to regain control of the gun and the trooper fired warning shots. Respondent then stopped moving, and the officer was able to place him under arrest. A search of Respondent’s car uncovered a sawed-off shotgun that had no serial number and had not been federally registered.

Respondent entered a guilty plea in the criminal case.

As EMissourian.com reported, he was a graduate of Washington University Law School and was sentenced to a 45-year state prison term to be served after he finishes a 25-year federal sentence.

The Administrator alleges that the conduct

reflect[s] adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct.

I'd say so. (Mike Frisch)

December 8, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, December 5, 2014

Lawyer Beats False Evidence Rap

 The Louisiana Attorney Disciplinary Board agreed with a hearing committtee that the Office of Disciplinary Counsel failed to prove that an attorney had knowingly presented false evidence in a criminal trial.

The hearing committee concluded that the attorney had "reason to suspect" that the evidence was false but followed his client's wish to nonetheless use it.

The criminal case involved five counts of attempted second degree murder in a September 6, 2007 encounter outside a French Quarter club.

The incident was captured on videotape. The video was presented in the prosecution's case and showed the defendant stabbing one of the victims.

The defense offered its own video. The state countered that this defense video was false evidence. 

The state was correct, as the defense video was a doctored January 2007 tape.

The ODC charged

The second video as offered by the defense proved to be a complete fabrication, as it involved an entirely separate incident which occurred at the same location some nine months earlier. The defense had crafted the second video - Video No. 2 - from cell phone camera footage which a defense investigator had retrieved from the MySpace page of one of the victims - which involved some of the same participants as the September 2007 attack.

Because the defendant professed to have expertise in digital data transfer techniques, the Respondent instructed Mr. Boudreaux to prepare the My Space footage for presentation in court. Boudreaux has admitted that he altered the MySpace footage to make it appear to be identical or similar to the footage appearing in the state's surveillance video (Video No. 1). Once the trial began, Respondent then successfully convinced the trial judge to allow him to show the video to the jury. He also elicited what was later revealed to be false testimony from a witness, Lionel Rayford, to the effect that the January 2007 video depicted the fight that occurred outside the French Quarter club on September 16, 2007.

The ODC noted that the attorney offered inconsistent stories.

The board gave absolution for the changing accounts

...the Committee made a finding of fact that Respondent did not review the underlying three-year-old trial transcript in advance of his sworn statement and made misstatements about the events in both his sworn statement and in his response to the charges. The Committee found his live testimony before them to be credible, concluding that he did not offer false evidence to the court, did not make a false statement of fact to the court and likewise did not fail to correct a false statement made to the court.

The board dismissed the charges, deferring to the credibility determinations of the hearing committee.  (Mike Frisch)

December 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2014

No Thanks For Sharing

An attorney convicted of  sex trafficking and pornography offenses was disbarred by the New York Appellate Division for the First Judicial Department.

This press release from the New Jersey Office of the United States Attorney describes the charges

De Sear used an Internet-based peer-to-peer file-sharing program to advertise, distribute and download hundreds of images of child pornography.  In seeking out “friends” on the peer-to-peer file-sharing network, De Sear used a picture of a young boy to represent him as his avatar, and invited individuals with usernames that contained terms such as “boy,” “child,” and “little” to join his peer-to-peer network.

De Sear named one of his file-sharing folders “BoysCute,” and made files with graphic, descriptive names available for sharing in his folders.  He also allowed his “friends” to preview the content of his shared files in thumbnail view to select which files to download, and used the peer-to-peer program’s chat function to make specific offers to distribute and display child pornography with descriptive titles.

The chat messages sent by De Sear to an individual with the username “boycuddle2" included De Sear’s observation: “best are guys who have kids of their own to share . . . there is a network of those guys,” but it is “hard to get into that club without a kid[.]”

De Sear regularly viewed and shared child pornography from the kitchen of his home, sometimes leaving his computer running overnight so that the child pornography files he had selected using the file-sharing program could download while he slept.

In 2010, De Sear regularly logged onto the file-sharing program using his then-employer’s wireless “guest” network.  During one of these sessions, De Sear distributed multiple child pornography files to an undercover law enforcement agent by having placed the files in his file-sharing folders on the peer-to-peer network.

The court

 Here, respondent was convicted of distribution of child pornography and during his plea allocution he admitted that he was in possession of computer files that he knew to contain images of child pornography, which he distributed via the internet. Therefore, respondent's sworn plea admissions, read in conjunction with the superceding information to which he pled guilty, makes his conviction under 18 USC § 2252A(a)(2)(A) "essentially similar" to a New York felony conviction under Penal Law § 263.16. Thus, we find that automatic disbarment pursuant to Judiciary Law § 90(4)(b) is warranted in this instance.

The attorney was described in the press release as a partner in an international law firm. The Village Voice reported that he resigned from the firm. (Mike Frisch)

December 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Brother Can You Spare A Disbarment?

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother's estate.

The attorney was appointed as personal representative on his mother's death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer's conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPCviolations but persisted with his conduct.

Result: Disbarment. (Mike Frisch)

December 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Job Responsibilities Of Legal Secretary Did Not Cause Carpel Tunnel Syndrome

We don't report on many (indeed any) worker's compensation cases but this one from the West Virginia Supreme Court of Appeals caught our eye.

The employee worked as a legal secretary for a law firm. She was diagnosed with carpel tunnel syndrome and cubital tunnel syndrome.

The court affirmed the findings below that the condition was not the result of her clerical work

This Court agrees with the reasoning of the Office of Judges and the conclusions of the Board of Review. Under West Virginia Code of State Rules § 85-20-41.5, clerical work is not a high risk job for producing or developing carpal tunnel syndrome, and Ms. Whitten does not have any of the contributing factors listed under § 85-20-41.5. Ms. Whitten also has a non-occupational risk factor of obesity. Dr. Mukkamala and Dr. Thaxton found Ms. Whitten’s condition was not related to her work duties. Dr. Bolano opined Ms. Whitten’s condition was occupationally related, but not until January of 2013 after he had already been treating Ms. Whitten for these diagnoses and symptoms since February 27, 2012. In addition, her symptoms began in November of 2010, but she did not mention that her symptoms were caused by her work or related to her job duties until January of 2013.

The work responsibilities did not include "[a]wkward wrist position, vibratory tools, significant grip force, and high force of repetitive manual movements" that can lead to the diagnosed conditions. (Mike Frisch)

December 4, 2014 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

I'm Gonna Wash Those Drugs Right Outta My Hair

A Louisiana Hearing Committee has recommended the disbarment of an attorney who defaulted on charges in a number of matters.

While most of the violations might fairly be characterized as "garden variety" neglect, one weed stands out.

The attorney represented the father in a child custody matter. Mother's counsel advised him that he would be filing a motion alleging that the father was abusing illegal drugs.

The attorney's response was to purchase a shampoo product called Ultra Clean, which was "advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid positive hair follicle drug tests."

He then visited the client at home.

In a pretrial conference the next day, the attorney vigorously (and falsely) denied that his client was using drugs.

A cuticle test came back as presumed positive for marijuana, amphetamines and methamphetamines.

The Ultra Clean worked - the hair follicle test was negative. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ohio Sanctions Unauthorized Practice: "Attendant Evils" Quashed

Kathleen Maloney reports on the Ohio Supreme Court web page

A company and its owner engaged  in the unauthorized practice of law by representing 20 nursing students  claiming racism and discriminatory business practices against a college with a  campus in Cleveland.

In a unanimous decision, the Ohio  Supreme Court today ruled that William Hill and his company, the Advocacy  Group, Inc., improperly entered into contracts with the students as an  “attorney/advocate” and that Hill held himself out as their advocate in a  letter to the school and in a meeting with the college’s lawyer about the  claims. The students either had attended or were enrolled at the Eastlake  campus of Bryant & Stratton College.

The court imposed a $20,000 civil  penalty against Hill and the organization.

Hill, a retired police officer,  has not attended law school and has not been admitted to practice law in Ohio  or any other jurisdiction. His company  ran a website, bryantstrattonscrewedme.com, and he was retained in 2008 to  assist the 20 students. Each student signed a form appointing Hill and his  company as his or her attorney/advocate.

Hill sent a letter to the  director of the college’s Eastlake campus that alleged “institutional racism,  racial profiling, financial profiling, [and] discriminatory business practices”  and requested a meeting. He sent another letter, which demanded $5 million for  the students, to the college’s lawyer before a meeting held on May 29, 2009.

Hill, four former students, and  two lawyers met with counsel for the college at that meeting.  The students stated Hill was representing them, and the discussion ended  without a resolution.

Quoting a 2004 Ohio Supreme Court  opinion, the court explained that it restricts the practice of law to licensed  attorneys to “protect the public against incompetence, divided loyalties, and  other attendant evils that are often associated with unskilled representation.”

By referring to himself as an  attorney/advocate, representing clients for a fee, and trying to negotiate  settlements of the students’ legal claims, Hill engaged in the unauthorized  practice of law, the court stated in its per curiam opinion.

The court issued a $20,000 civil  penalty against Hill and his company – $10,000 for the Advocacy Group’s contract  to represent the students, and $10,000 for acting as the students’ advocate in correspondence  to the college and during the subsequent meeting.

2014-0518. Cleveland  Metro. Bar Assn. v. Hill, Slip  Opinion No. 2014-Ohio-5239.

(Mike Frisch)

December 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Censure Proposed For Judicial Candidate

A candidate for judicial office should be publicly censured for false statements made during the campaign, according to a report and recommendation of an Illinois Hearing Board.

The Republican had said this about his Democratic opponent

Respondent designed and wrote the contents of a  mailer, or approved its design and contents. Respondent caused between 75,000  and 100,000 copies of the mailer to be circulated and also caused it to be  printed in newspapers as a campaign advertisement. The mailer contained the  statement:

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian  Trentman "were NEGLIGENT in their representation of Mr. Woidtke in a 1989  criminal proceeding that resulted in his wrongful conviction of  murder of Audrey Cardenas."

(Source: Woidtke v. St. Clair County, St. Clair  County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No.  02-4223, May 2003). The above statement in the mailer was false, in that Judge  Lopinot, as a part-time public defender in 1989, had no supervising duties over  Brian Trentman; there was no finding that Judge Lopinot was negligent; and Judge  Lopinot had no involvement in the Woidtke case in 1989. Respondent knew the  above statements in the mailer were false or he made the representations with  reckless disregard as their truth or falsity.

The mailer also gave the false appearance that the  United States Court of Appeals in the case of Woidtke v. St. Clair County, et  al., 335 F.3d 558 (7ht Cir. 2003) (No. 02-4223) had found Judge Lopinot  negligent in the Woidtke case. Respondent knew the source citation gave such a  false appearance or he created or authorized the citation with reckless  disregard as to it truth or falsity.

Key finding

We find it impossible to believe that Respondent  actually thought the quotation on his mailer accurately reflected what the Court  of Appeals said or meant. The quotation on the mailer makes it appear that the  Court of Appeals said that Judge Lopinot and Trentman "were negligent" in  representing Woidtke in the 1989 criminal proceeding. In other words, the  quotation makes it appear that negligence by Judge Lopinot and Trentman was a  finding of fact or statement of historical fact in the case. In reality,  however, the Court of Appeals was simply stating what allegation was made by the  plaintiff in his civil lawsuit. Any attorney acting in good faith, and  particularly an attorney who had been engaged in the practice of law for more  than 20 years, would know that stating negligence by the defendants was  "alleged" is vastly different than stating that the defendants "were negligent."  Clearly, the quotation on the mailer misrepresents what the Court of Appeals  said or meant. Thus, we find Respondent's testimony that he believed the mailer accurately quoted from  the Court of Appeals opinion to be simply incredible and false.

The hearing board rejected the accused attorney's First Amendment defense to the charges. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Enough Hours In The Day

The Tennessee Supreme Court has disbarred an attorney who "submitted inflated, false and deceptive fee claims to the Administrative Office of the Courts."

The attorney had billed more than eight hours a day (usually 10-11 hours) for approximately 478 days over a period of slightly less than two years and could not produce any records to verify the bills.

He "billed nearly twelve hours on a day when he attended an eight hour, out of state CLE."

The attorney also was charged with knowingly understating his income in his personal bankruptcy and failed to appear for the final hearing in the disciplinary matter. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2014

First Wife's Club Overturned

Hat tip to my favorite Florida ethics blog sunEthics for finding this opinion of the Florida Fourth District Court of Appeal.

In this case involving divorce and related proceedings, the husband's attorney also is his second wife.

His first wife moved to disqualify her.

The court here found the trial court's order of disqualification to be overbroad

We conclude that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.

But harsh words and a sanction for the first wife's counsel

Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this "simple" matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction.

Nor did the court spare the second wife in a footnote

...we are deeply troubled by attorney Ferrer’s reply, since stricken, to the response to the petition. Ferrer does not aid her husband (and client’s) case by lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court. We are stunned at Ferrer’s disrespectful, offensive, and inflammatory argument directed at the trial judge...

Ferrer’s filings in this court, and indeed below, are verbose and unnecessarily digress in excruciating detail into irrelevant matters. An attorney who is too personally involved with the issues in a litigation should consider withdrawing or risk violating ethical duties owed to the client.

 The court found that the reply bordered on contempt. (Mike Frisch)

December 2, 2014 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Fiduciary Breach Charges Rejected In Illinois

The Illinois Supreme Court has suspended an attorney for three months for his neglect of an estate matter.

The court does not often issue full opinions in disciplinary matters; the vast majority of the court's actions are orders.

The court rejected a number of arguments pressed by the Administrator and in particular criticized arguments of misconduct based on fiduciary duties outside the practice of law

 Despite this court's order, the Administrator continues to seek discipline  based on respondent's conduct as trustee and executor without basing the charge  on a specific alleged violation of a Rule of Professional Conduct. The  Administrator's brief is replete with argument based on the legal theory of  breach of fiduciary duty rather than specific disciplinary rules. In keeping with our March 14, 2014, order, we do  not address this issue.

The court also rejected dishonesty charges

...there is no evidence that respondent intended to deceive. To the  contrary, the evidence establishes that respondent provided what he believed to  be truthful information to Boers. The first letter, dated April 18, 2001, set  forth respondent's understanding of the arrangement between Boers and Hannah,  including that she would receive "interest" on her investment. Respondent had no  independent knowledge of whether the monthly payments to Boers were or were not  actually interest. Hannah sent to respondent the funds remitted to Boers, and  the cover letters to Boers stated exactly what Hannah told respondent to write  to her. The subsequent cover letters merely followed a form repeating the  message that respondent received from Hannah: the checks represented "interest."  There is no clear and convincing evidence that respondent made a statement that  he knew was false.

It was the Administrator's burden to prove by clear and convincing  evidence that respondent's statements in his cover letters to Boers were false.  However, the Administrator presented no evidence whatsoever to establish what  was the nature of the payments. After carefully reviewing the record, we hold  that the Hearing Board's finding of dishonesty in violation of Rule 8.4(a)(4)  was against the manifest weight of the evidence. We conclude that respondent did  not violate Rule 8.4(a)(4) as alleged in count VI.

That left only neglect and commingling

Regarding the neglect of Sloan's estate, this court has repeatedly  observed that neglect in the performance of an attorney's duties to a client can  be sufficient to warrant discipline. Where a corrupt motive and moral turpitude  are not clearly shown, suspension is a proper punishment.  Regarding the finding of commingling, we recognize  that respondent maintained a client trust account. However, he used the account  as he would any other business account, commingling his personal funds with  client funds. This practice violated respondent's professional duty to maintain  client funds in a separate account. This court has repeatedly stated that  commingling will not be countenanced.  Commingling is a ground for suspension, as is misrepresentation (citations omitted)

The precedent that the court relies upon in dismissing the fiduciary breach allegations is linked here. I think that the dissent in the case makes the better argument in favor of finding that fiduciary violations are sanctionable under the court's ethics rules. (Mike Frisch)

December 2, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

License Annulled

The West Virginia Supreme Court of Appeals annulled the license of an attorney who had no record of prior discipline.

The findings below

In the instant disciplinary proceeding, the [Hearing Panel Subcommittee] concluded that Mr. Scotchel charged excessively high attorney’s fees despite performing little if any substantive work on a variety of legal matters involving the complainant, Mr. Lewis Snow, Sr., including: the sale of Mr. Snow’s sanitation business, certain misdemeanor charges, a workers’ compensation coverage issue, and claims before the Public Service Commission. The HPS also concluded that Mr. Scotchel improperly retained proceeds from the sale of Mr. Snow’s sanitation business in supposed payment for such unreasonable unpaid attorney’s fees and that he failed to provide a requested full accounting of the money to Mr. Snow from the sale of the business. Furthermore, despite being instructed during the course of the disciplinary proceedings below to re-create the time demonstrating his work and fees on his claimed representation for Mr. Snow, Mr. Scotchel failed to provide a detailed accounting to support his claimed fees.

The court

...the HPS properly concluded that there was clear and convincing proof that Mr. Scotchel violated duties owed to his client by charging unreasonable fees, failing to communicate the basis of the fees, failing to have a contingency fee in writing, failing to provide Mr. Snow with his money from the sale of the sanitation business, failing to provide a full accounting as requested by Mr. Snow, and failing to comply with Disciplinary Counsel’s request for itemized billings or accountings.

As to sanction

Mr. Scotchel’s violations in this case are egregious and touch the very essence of the public’s perception of the legal profession. While these are Mr. Scotchel’s first offenses of the Rules of Professional Conduct giving rise to discipline, this is not a case of simple negligence or neglect. We conclude that Mr. Scotchel misappropriated client funds and thereafter attempted to justify such a misappropriation by fabricating his involvement in other matters in which Mr. Snow was involved. The HPS had the opportunity to observe Mr. Scotchel’s testimony and found that much of his testimony lacked credibility. The HPS was also able to hear and observe the testimony of several witnesses which the HPS found to be credible.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tennessee Ethics Board Sued

A news story from WSMV.com

A bombshell of a lawsuit goes in front of a Nashville  judge Thursday as a pair of Nashville lawyers are suing their own ethics board for what they call ethical violations and a cover-up.

That means they are suing the very people who punish lawyers for bad ethics.

It all started when one lawyer saw an email about his upcoming case sent to a judge without his knowledge.

When a lawyer is punished for some kind of ethical violation, it is the job of the Board of Professional Responsibility for the Supreme Court of Tennessee to hold a hearing and decide guilt or innocence.

However, when attorney Jim Roberts was looking  into defending himself, he saw an email from the board to the judge in his case describing the case.

It was a secret email he knew nothing about.

"We discovered that the Board of Professional Responsibility was systematically engaging in unethical conduct. They, on a regular basis, were having secret conversations with judges, and now they are trying to cover it up," Roberts said.

Attorney Connie Reguli made a Freedom of Information Act request for all emails regarding upcoming cases against lawyers.

"It's as if I would send a letter to a judge saying, 'judge, I'm coming into your courtroom tomorrow, and this guy is a real schmuck. And here is what I want you to do,'" Reguli said.

Reguli got the emails from the Board of Professional Responsibility, but there was a huge problem. There were at least 50 pages of redacted emails.

"They've taken it all out," Reguli said. "They've deleted everything else on that email, and it's high importance."

"There is no way that one side gets to have secret communications with a judge and the other side not know about it and not be told about it," Roberts said. "And we've caught them. We caught them red-handed, acting unethically, and they have to explain it."

Channel 4 News sought a statement from a representative for the Board of Professional Responsibility but we never heard back.

The issue goes to court Thursday, and Roberts and Reguli said they will demand unredacted, unerased emails.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Steals From His Secretary; Suspension Proposed

Sometimes a secretary or support staffer steals from a lawyer or the lawyer's escrow account.

Rarely is it the other way around.

An attorney who had misappropriated funds from his "retired elderly secretary" should be suspended for three years, according to a recent report and recommendation of the Illinois Review Board.

When Respondent's retired elderly secretary,  Generose Schweickert ("Schweickert"), became ill in 2005, she asked Respondent  for assistance in handling her financial affairs. Respondent prepared, and  Schweickert executed, two powers of attorney giving Respondent power to handle  Schweickert's finances. Beginning in 2005, Respondent actively managed her  affairs and he paid himself attorney fees for performing those services. In or  about 2009, Schweickert became mentally incompetent. Thereafter, over several  years, Respondent took $95,000 of Schweickert's funds and used the money for his  own personal purposes. In addition, Respondent failed to timely pay the nursing  home where Schweickert resided resulting in an action by the nursing home to  involuntarily transfer Schweickert and recover the delinquency. Respondent,  acting as Schweickert's attorney, failed to appear at a status conference and  failed to comply with an agreed order entered in the matter.

A lesser sanction than disbarment was appropriate

While Respondent's conduct could support a sanction  of disbarment, we agree with the Hearing Board's recommendation that  Respondent's misconduct warrants a three year suspension. However, we recommend  that the suspension continue until further order of the Court. Respondent's  failure to fully understand the impropriety of his acts, as evidenced by his  continued insistence that the takings were loans and his poor financial  condition, support the necessity of a future assessment before he resumes the  practice of law.

The secretary had worked for the attorney from 1964 until she retired in 1984. She never married and had no close relatives. (Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Sunday, November 30, 2014

California Upholds Internal Communication Law Firm Privilege

A decision issued last week by the California Court of Appeals, Second District, Division Three holds

The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called "fiduciary" and "current client" exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.

The court cites the Massachusetts and Georgia cases as well as the Chambliss law review article.

The client had retained the law firm to pursue an invasion of privacy claim against the Daily Mail. As the court noted

The relationship between [client] Mireskandari and the Firm was short lived and, for the most part, contentious.

The court rejected the suggestion that internal counsel and the client were "joint clients" of the firm

Shelton and Mireskandari were not joint clients for purposes of section 962. Shelton and Mireskandari did not retain the Firm "upon a matter of common interest." Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case; Shelton consulted with in-house counsel not as a party to that action, but to obtain advice on how best to address Mireskandari's complaints about billing and his threats to hold the firm responsible for any damages he suffered. Mireskandari and Shelton were not co-parties; they did not employ the same attorney to oppose claims of an adversary or pursue a claim as joint plaintiffs; they were not represented by the same attorney in a business transaction.

The court vacated an order that had permitted discovery into the firm's internal communications.

Thank you to my former student Daniel Woofter for sending me the case. His article from the Georgetown Journal of Legal Ethics is cited in the opinion. (Mike Frisch)

November 30, 2014 in Hot Topics, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

A Strong Reminder To Do Your CLE

An attorney who twice signed verifications for CLE credit that he had not earned was publicly reprimanded by a North Carolina General Justice Court.

Because the attorney formally had served as Counsel to the State Bar, the matter had been independently reviewed for a probable cause determination.

The attorney had claimed twelve hours of credit after attending for only the first and last hour of a class in September 2013.

He had engaged in similar conduct two years earlier.

The court called the reprimand a "strong reminder of the high ethical standards of the legal profession."  (Mike Frisch)

November 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)