Friday, May 10, 2013
"Floodgates" v. "Unduly Protectionist Of Attorneys"
The Connecticut Supeme Court has held that the litigation privilege provides absolute immunity to claims of fraud and intentional infliction of emotional distress brought by an unhappy litigant against opposing counsel.
The suit was brought by a former husband alleging fraud in the law firm's handling of post-dissolution proceedings concerning his ex-wife's financial situation.
The court concluded that a contrary reading of the law would open "floodgates" of litigation.
In the dissent, Justice Palmer calls the decision "out of step" with the majority of jurisdictions and "unduly protectionist of attorneys." (Mike Frisch)
Late To Work And Not Pleasant When He's There
The Massachusetts Supreme Judicial Court has ordered that the Barnstable Clerk-Magistrate be removed from office:
The findings by the hearing officer, as adopted by the committee, provide sufficient cause for Powers's removal and we conclude, after considering the totality of the circumstances, that the public good requires his removal. We do not reach this conclusion lightly; we recognize that removal "strips the individual of the enjoyment of a position of distinction" to which he had been appointed by the Governor and approved by the Governor's Council. See Attorney Gen. v. Tufts, supra at 490. Our reasons for reaching this conclusion are best summarized by a statement made by Judge O'Neill, the presiding justice of the court where Powers presided as clerk-magistrate, during his testimony at the hearing: "I just want the clerk to do his job." The record demonstrates that from the date he started work at the Barnstable District Court through the time of the hearing, Powers fundamentally failed to do his job. He was not there during the busiest time of day for the clerk's office, leaving the office without necessary leadership and an essential helping hand, apparently failing to recognize that one essential component of his job was to show up when the work needed to be done. He continually abused his authority as clerk-magistrate by his mistreatment of litigants, court personnel, and even the presiding justice of the court. He failed to render timely decisions and sought to cover up his failure by asking employees under his direction to change the date of decision to the date of hearing. He failed to meet his obligation to ensure that monies collected by the clerk's office were deposited daily in a local bank, and effectively denied litigants the opportunity timely to appeal his denial of the issuance of a criminal complaint at a show cause hearing by directing his staff not to send notice of his denial. We need not consider whether any of these findings involves some degree of moral turpitude because we do not accept Powers's suggestion that he can keep his job, despite failing effectively to perform it for more than four years, as long as he avoids acts of moral turpitude.
Cape Cod Times has this coverage.
The case is In the Matter of Clerk-Magistrate Robert Powers. (Mike Frisch)
New York Attorney Meets Requirements For Admission On Motion In Massachusetts
In appeal of the denial of admission by motion of an attorney, the Massachusetts Supreme Judicial Court disagreed with the conclusion of the Board of Bar Examiners that the motion be denied.
The applicant graduated from law school in 2004. He was admitted by examination in New Jersey in 2004 and New York in 2009. From July 2005 to November 2008, he was a contract attorney with Sullivan & Cromwell. The board's issue related to his work prior to his New York admission.
In the board's view, the time that Schomer spent practicing law in New
York prior to October 7, 2009, was "illegal" because he only was
licensed and admitted to practice in New Jersey. As such, this time did
not count toward the necessary minimum of five years of active practice
for purposes of admission on motion. Schomer counters that the board
is fundamentally mistaken about the purported illegality of his
temporary practice of law in New York and that, therefore, he has
satisfied this requirement of S.J.C. Rule 3:01, § 6.1.1. We agree that
Schomer has fulfilled this requirement, albeit for a slightly different
reason from the one he has put forth.
We recognize that pursuant to N.Y. Jud. Law § 478 (McKinney 2005), it "shall be unlawful for any natural person to practice or appear as an attorney-at-law ... or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, ... without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." [FN10] The purpose of this statute is "to protect the public in [New York] from 'the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions." El Gemayel v. Seaman, 72 N.Y.2d 701, 705 (1988), quoting Spivak v. Sachs, 16 N.Y.2d 163, 168 (1965). "[T]his prohibition against the practice of law by one who is not a duly licensed New York attorney is ... placed on foreign attorneys ... because the requirements for admission vary in each State in addition to the fact that New York has a greater power to impose sanctions upon its own attorneys who do not keep within the minimum ethical confines New York has established. These factors help ensure that attorneys admitted in New York and practicing law there will practice ethically and with a certain minimum level of expertise." 18 Int'l, Ltd. v. Interstate Express, Inc., 116 Misc.2d 66, 67 (N.Y.Sup.Ct.1982).
It is undisputed that, prior to October 7, 2009, Schomer was engaged in the active practice of law while working at Sullivan & Cromwell and at Newman Ferrara, even though he was not duly licensed and admitted to practice in New York. Nonetheless, we are not prepared to conclude that Schomer was engaged in the "unauthorized" practice of law where the New York bar has seen fit to admit him to practice, thereby determining that his work at Sullivan & Cromwell and at Newman Ferrara did not constitute a violation of N.Y. Jud. Law § 478.
The matter (Schomer v. Board of Bar Examiners) was remanded for consideration on the merits. (Mike Frisch)
Dr. Jekyll And Mr. Hyde
The Iowa Supreme Court has revoked the license of an attorney whose situation "mirrors the life of Dr. Jekyll and Mr. Hyde."
The attorney had been a police officer, youth sports coach and published novelist. He graduated with honors from law school and made partner at his firm in five years.
The problems started with an incident in Belize, where he went to celebrate his rise to partnership. He suffered injuries when according to his account he was "abducted, beaten, sexually abused, and ransomed."
He was convicted on drug charges brought against him in Belize but a bar investigation of the incident led to no ethics charges.
When he returned to the United States, he began to display the "Hyde-like" personality. He suffered post-traumatic stress disorder and began to use drugs to sef-medicate. His marriage fell apart and he lost his partnership.
He was convicted misdemeanor drug and felony forgery convictions that involved passing bad checks.
He also engaged in client-related misconduct involving misappropriation, neglect, excessive fees, fee-splitting and unauthorized practice.
The attorney had been placed on disability status in 2011. (MIke Frisch)
Thursday, May 9, 2013
Jailhouse (Disbarred) Attorney
A Florida attorney disbarred in 1991 has found the practice of law a hard habit to break.
In 1995, on evidence of continuing practice, the Florida Supreme Court "permanantly and perpetually" restrained him from further practice.
The medicine did not take and, in 2005, the court found him in contempt of the disbarment order for continuing to practice. He served ten days of a sixty-day jail sentence.
Well, jail was no cure. He opened up a business called the All Florida Legal Clinic and called himself a "retired" attorney. He was caught charging for legal advice.
The court today found him in indirect contempt and has ordered him to surrender to a 60-day jail term in the next five days. (Mike Frisch)
Our prior coverage of the revocation:
The New York Appellate Division for the Third Judicial Department has revoked the admission of an attorney granted in 2008.
The revocation was a result of findings that the attorney made a series of materially false statements and omissions on her application for admission. The attorney submitted an employment affidavit for a judicial clerkship that was completed by her husband, who was a clerk in the chambers of another judge of the same court. The referee concluded that this was an effort to suppress information.
The referee also found that the attorney provided misleading explanations for the termination of two prior employments. She also falsely answered "no" to three questions concerning her involvement in litigation.
We take this opportunity to once again reiterate that candor and the voluntary revelation 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.
Here, the attorney's application "fell woefully short" of the above requirement. The court indicated that she could seek to renew the application.
Former Magistrate Reprimanded, Posted Bond For Defendant
A magistrate who resigned from judicial office has been publicly reprimanded by the South Carolina Supreme Court.
In one self-reported matter, the magistrate set bond in a criminal matter, reduced the bond to ten bucks and posted it with his own funds.
There were other violations as well. (Mike Frisch)
Wednesday, May 8, 2013
The Law Of Judicial License Plates
The New York State Commission on Judicial Conduct has issued a report on the ethical issues that relate to the use of judicial license plates.
The Commission intends to "generate a serious discussion" of the issue, reaching the conclusions that the use of such plates "does not per se violate any ethics rule or create an appearence of impropriety."
However, asserting judicial status "to avoid the consequences of a lawful traffic stop" can result in sanctions and a judge should so advise family and friends who operate the vehicle. If a judge uses a dashboard placard to park illegally, such conduct "may subject the judge to a confidential caution or public discipline."
Commission member Emery dissented and felt that the "milquetoast" report was "ducking" the issues.
The press release of the Commission is linked here. (Mike Frisch)
The Tax Edge
An Arizona Hearing Panel has reprimanded an attorney not licensed in the state for his conduct in operating a company called "The Tax Edge." The company documents referred to the attorney as the legal document preparer and identified his credentials as "JD, LLM."
The attorney "took advantage of [a] Decedent, who suffered from Multiple Sclerosis, and was an alcoholic, so that he could write himself into Decedent's trust documents as a beneficiary.'
He was nowhere to be found when the bar began to look into his conduct.
If Respondent had been an Arizona attorney, the Hearing Panel would have ordered disbarment.
Virulent Bigotry Contributes To Substantial Suspension
The Indiana Supreme Court Court has imposed a suspension of not less than three years without automatic reinstatement of an attorney for conduct in defense of his own foreclosure action and for the "virulent bigotry he has manifested in these proceedings..."
In addition to asserting frivolous positions, he
handed out fliers entitled "stop the Plunder in Bankruptcy Court" in downtown Indianapolis. The flyer, which was based upon [his] Chapter 13 bankruptcy, called Sellers (without naming them) "slumlords," called their attorneys (naming the firm) "bloodsucking shylocks" who were part of a "heavily jewish (sic)...reorganization cartel," and made free-ranging disparaging remarks about Jews generally, from the fall of Jericho, through 1925 Berlin, to their alleged involvement in the 9/11 attacks.
The court found as an aggravating factor that the offensive behavior continued in the bar case
by, for example, seeking discovery to establish that Sellers were mentally impaired, serving interrogatories upon the Commission seeking confirmation of his anti-Semetic statements, attempting to use discovery to ask the names of Commission members and others with Jewish affiliations, and attacking the merits of rulings in the bankruptcy and foreclosure proceedings that were long ago final.
The court further found the conduct was not protected "within the Respondent's broad constitutional right to freedom of speech and expression."
Justice David would disbar. (Mike Frisch)
Tuesday, May 7, 2013
Conflict Of Interests Leads To Substituted Plaintiff
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 16, 2013, which denied defendants' motion pursuant to CPLR 1021 to remove plaintiff in this derivative action and substitute the special litigation committee of the board of governors of the National Arts Club ("Club") as plaintiff, unanimously reversed, on the law, with costs, and the motion granted.
Defendants have established a "persuasive case" that "the proper protection of the corporation's interest or the proper conduct of the litigation would be better served by the elimination or a change in the identity" of the plaintiff...due to a conflict of interest. Plaintiff was expelled from the Club on whose behalf he is suing and the entire complaint in this derivative action alleges waste of corporate assets and breach of fiduciary duties by defendants, current and former directors of the Club, based entirely on their decision to investigate and expel him. We note that, although a complaint filed against plaintiff by the Attorney General alleging waste and misuse of corporate assets is not proof of any misconduct, it reinforces the existence of a conflict.
Furthermore, plaintiff filed this derivative suit in October 2011, two months after the Club filed a Statement of Charges against him and shortly before internal disciplinary proceedings were scheduled to continue, suggesting that he was motivated not by the Club's interests but by a desire to gain leverage to force the Club to reinstate his membership and end the litigation...
As defendants propose to substitute plaintiff with a special litigation committee comprised of newly elected directors who are not named in the derivative suit and were not involved in the underlying investigation of plaintiff, they have established that substitution is warranted at this stage and is not premature...
The New York Daily News had this report on allegations against the removed plaintiff:
The state Attorney General slammed the former head of the National Arts Club with a lawsuit Friday, charging that he cost the group $1.7 million by stuffing its landmark brownstone with antiques and junk.
The suit claims that Aldon James and his brother took over as many as 20 apartments and other rentable rooms within the 15 Gramercy Park South house, cramming them with private flea-market collections.
The hoarding cost the club more $1.5 million in lost rental income, court papers filed Friday in Manhattan Supreme Court allege.
James, who took over the National Arts Club in 1986 and ran it until 2011, is also accused of using $250,000 in club funds since 2006 to pay for meals and cabs — and to purchase items at antique shops, flea markets and vintage clothing stores. The brothers would then resell the merchandise for a profit, according to court papers.
Roland Riopelle, the art club’s lawyer, said the lawsuit “validates the club's view that it was victimized.”
“The lawsuit shows that Aldon James is roadkill and the club has its foot on the gas and is going full speed ahead into the future,” Riopelle said.
Attorney General Eric Schneiderman said an 18-month investigation by lawyers in his charities bureau found that James “took advantage of his role” for years.
Plethora Of Threats Get Attorney Suspended
The web page of the North Carolina state Bar reports on an interim suspension:
The chair of the DHC entered an interim suspension of the law license of Hickory lawyer David Shawn Clark. The chair found that Clark pled guilty in Catawba County Superior Court to two counts of misdemeanor communicating threats and one count of common law obstruction of justice; engaged in a sexual relationship with a client; asked the client to lie and deny the sexual relationship so Clark could defend against an alienation of affection lawsuit threatened by the client’s husband; when the client refused to lie, threatened her with losing custody of her children; threatened to kill his legal secretary after she refused to lie about her knowledge of the sexual relationship between Clark and his client; made false statements in the defamation lawsuit he filed against his client; revealed his client’s confidential information; and made false statements to the Grievance Committee.
Gambling On Malpractice
The New Jersey Appellate Division reversed the grant of summary judgment to a defendant attorney in a legal malpractice case.
One plaintiff is a former police officer who claimed that the defendant's incorrect legal advice led to his conviction for third degree promotion of gambling. The other plaintiff is married to the co-plaintiff and was the legal owner of the gambling enterprise.
...a rational jury in this case could find that defendant's role as legal advisor was a substantial factor that led plaintiffs to engage in criminal conduct.
The conviction of one of the plaintiffs was held to be no bar to the legal malpractice claim. Notably, all of the criminal conduct took place after the attorney was retained as legal advisor.
The court affirmed the dismissal of emotional stress claims.
The conduct of the plaintiffs involved a poker tournament. (Mike Frisch)
New Rules Proposed In Pennsylvania
The Pennsylvania Disciplinary Board has proposed a number of amendments to the Rules of Professional Conduct:
The amendments focus on changes in detection of conflicts of interest, outsourcing,technology and client development, as well as technology and confidentiality. Comments on the proposed changes will be due May 16, 2013.
The [Notice of Proposed Rulemaking], running more than 12,000 words, is far too extensive to summarize in the scope of this newsletter. It is well worth the time of any practicing Pennsylvania attorney to look through the NPR and familiarize him or herself with the proposed changes, and to submit comments if appropriate.
The Law Of "No Backsies"
The Maryland Court of Special Appeals invoked the rule of "no backsies" in affirming a consent order between the Board of Physicians and an experienced doctor who was charged "with improperly prescribing opiates and other controlled substances for a dozen patients over more than eight years."
A deal is always a deal, but this appeal brings to mind the long-standing playground rule of "no backsies." By calling "no backsies" before finalizing the agreement, the parties reinterate and reinforce their intention to be bound and stay bound.
The court concluded that the board did not err in denying the physician's demand to revise the consent order. (Mike Frisch)
Monday, May 6, 2013
A Louisiana Hearing Committee has recommended disbarment of an attorney who engaged in numerous acts of misconduct.
Among the many lapses was a comviction in federal court for aggravated identity theft from eleven clients or former employees. The attorney used financial information to fraudulently obtain credit cards in the name of a deceased client.
The committee cited several mitigating factors that persuaded them not to propose permanent disbarment.
One factor was that, three years after bar admission in 1995 and as a solo practicioner, the attorney "tried her first jury trial and won a large verdict of just over a million dollars in an age discrimination case...The verdict was appealed to the third circuit and confirmed. The case went up to the Supreme Court and was dismissed. Respondent was devastated by the result."
The attorney also gambled and used cocaine to deal with an extremely stressful family situation. (Mike Frisch)
High-Flying Attorney Disbarred
The tough-on-crime Maryland Court of Appeals has disbarred an attorney who misrepresented facts to a tribunal and administrative law judge "in order to secure a postponement" and failed to correct the misrepresentations at a later hearing in the matter.
He had implied that he was at the hospital for epilepsy treatment; in fact, he was attending the birth of his child.
The attorney also commingled personal and client money in two trust accounts and failed to properly supervise a non-lawyer employee (who also was the mother of the aforementioned child).
He had previously been reprimanded "for using marijuana on an airplane, for transporting drug paraphenalia on the flight, and for making statements that could be construed by others as a claim by him to be a police officer." (Mike Frisch)
Contingent Fee Sharing
In a lawsuit involving a dispute between lawyers over the legal fees in a complex medical malpractice case, the Maryland Court of Special Appeals has held that
...we will apply the general rule that the termination of a contingency fee agreement terminates the fee-sharing agreement predicated on it. Because PGA [the law firm of Orioles owner Peter Angelos] is not entitled to a contingency fee, there is no contingency fee for Mr. Brault to share. Accordingly, to the extent the circuit court factored in the fee-sharing agreement, the circuit court's ruling must be vacated and remanded for further proceedings.
We stress that our decision in this case does not mean that Mr. Brault is not entitled to compensation for his work while the contingency arrangement was in effect. Like PGA, howver, his claim would be for the reasonable value of his services.
The case involved an attorney (Mr. Gately) who while with PGA undertook the representation of the client with assistance from other firm attorneys. Mr. Brault was brought in as co-counsel and a favorable verdict was obtained. The verdict was overturned on appeal.
Mr. Gately was then discharged from PGA. The client followed him and Mr. Brault. The case later settled for an undisclosed amount. PGA sued to enforce its lien. The disputed funds remained in escrow.
Mr. Gately acknowledged that no post-verdict effort had contributed to the settlement, which he attributed to an act of God.
The court here held that PGA had behaved ethically and was not deprived of it entitlement to fees.
The court also held that the discharged attorneys may properly sue successor counsel. (Mike Frisch)
The Right Path
A former Fulton County Commission Charman who was convicted in 2003 of a federal false statement charge was reinstated to practice by the Georgia Supreme Court.
The ptitioner was disbarred in 2005 as a result of the conviction.
Since the offense, the ptitioner owned his own business and worked as Director of Loss Prevention at Waffle House, Inc. His civil rights were restored in 2012.
The court concluded that "since his conviction [he] has shown remorse and strived to act with integrity and responsibility through his hard work, his devotion to his family, and as a volunteer in his community." (Mike Frisch)
Not For Pleasure Or Amusement
The Georgia Supreme Court has accepted a peition for voluntary discipline and imposed a twelve-month suspension of an attorney who misappropriated client funds.
The attorney had used entrusted funds to keep his firm operating in the face of financial troubles. He had hoped to restore the funds.
According to the court, the attorney "notes that his misappropriation was not for his own pleasure or amusement, but rather to pay amounts owed to the creditors and employees of his law firm."
The attorney had been treated for years for major depression and bipolar disorder. He had an otherwise unblemished professional and civic reputation.
His reinstatement is condition on certification of a mental health professional that he is fit to practice law. (Mike Frisch)