Thursday, August 21, 2014
The Kentucky Supreme Court has affirmed a Bar Association Ethics Opinion that
...deals[s] with the ethical ramifications of one aspect of..."horse trading between prosecutor and defense counsel."
The United States Attorneys for the Eastern and Western Districts of Kentucky had sought review of Ethics Opinion E-435, which found that the use of prospective waivers of ineffective assistance of counsel claims as part of a plea bargain violated governing ethics rules.
The court confirmed that such waivers create a non-waivable conflict of interest between defense counsel and the client, improperly limited the defense attorney's liability for client malpractice and "induce, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."
The opinion was authored by Chief Justice Minton. (Mike Frisch)
An opinion yesterday from the New York Appellate Division for the Second Judicial Department
It is a well-established equitable principle that a wrongdoer should not benefit from his or her own wrongdoing. On this appeal, this Court is presented with the question of whether a person who unlawfully kills another should be permitted to inherit the victim's assets indirectly through the estate of the victim's daughter. Under the particular facts of this case, where there is a clear causal link between the wrongful conduct and the benefits sought, we answer that question in the negative.
The claimant married his high school sweetheart and strangled his mother-in-law to death a year later.
His wife believed in his innocence and stood by him. She died of a drug overdose and he subsequently pleaded guilty to manslaughter in the first degree.
[Estate Administrator] DiRusso further contends that [wife] Deanna's interest in the decedent's estate vested upon the decedent's death, and that Deanna may do with her property as she wishes, even if others find her choices abhorrent. This "vesting" argument, however, is unpersuasive. As Deanna died intestate, any purported choice she may have made to leave her property to Brandon is not memorialized in a will. Moreover, even if Deanna had made an otherwise-discernable intentional choice to leave her property to Brandon—perhaps through knowledge that if she died intestate, her property would pass to her surviving spouse—to the extent that her property was inherited from the decedent, the Riggs doctrine would apply to prevent Brandon from benefitting from his own wrongdoing.
If this Court were to allow Brandon to inherit the assets of the decedent's estate through Deanna's estate, it would be rewarding Brandon's criminal behavior. This, in turn, would " allow [the court] to be made the instrument of wrong'" (Campbell v Thomas, 73 AD3d at 119, quoting Matter of Hogan v Supreme Ct. of State of N.Y., 295 NY 92, 96). This Court will not put its imprimatur on Brandon's efforts to gain from his admittedly criminal conduct.
Wednesday, August 20, 2014
Maeve Hosier, a recent doctoral graduate of NUI Galway, has published her thesis The Regulation of the Legal Profession in Ireland. After seeing her Law & Society Asssociation conference talk on the Irish financial meltdown and its implications for the profession, I asked to include her larger study in my Quid Pro Books publishing project's Dissertation Series. She agreed and we worked hard all summer to get it out in time to be considered while reform legislation is on deck. In earlier legislative debate, Ireland's Minister of Justice called it "marvelous" and declared it "compulsory reading." Then John Flood generously provided a Foreword and explained the worldwide implications of Maeve's observations and comparative research (she
looked particularly at other bailout nations, Greece and Portugal). The book came out this week, with paperback linked at Amazon (more general information here). Consider recommending it to be adopted by a law library. Here's the abstract to John's intro as posted on SSRN:
The foreword shows how in the recession of 2008 lawyers escaped culpability while bankers were excoriated for their role in it. Nevertheless in Ireland, when it became a debtor country in the Eurozone, the Troika (IMF, EU, ECB) enforced a restructuring of the legal services market. This is viewed in the global context of a shift towards liberalisation of the legal services market at national and supranational levels. Despite
the shift lawyers are rejecting change where they can, or, if they are unable to resist, at least attempt to delay it.
Somewhat unrelated, and lighter reading to be sure (more of a commuter or beach read), we also published this week a lawyer's novel-like true account of a trial stemming from a shipwreck, The
Widow Wave, by Jay Jacobs (or in Kindle, etc.). And completely unrelated is a modern take on Cicero's "On Old Age," called How to be Old, by Richard Gerberding. Thanks for letting me update what's now out after a summer's worth of editing, working with some really great authors. [Alan Childress]
The Maine Supreme Judicial Court has issued an important opinion on the subject of judicial recusal and disqualification.
The case is somewhat complex.
A Portland Maine law firm was retained by a charitable trust to foreclose on property that the trust owned.
The client (somewhat uncharitably) fell behind in its fee payments to the firm. The firm withdrew and sued the trust for breach of contract.
Unknown to the firm, the subject property was transferred to a second charitable trust controlled by the same trustee for no consideration.
When the law firm learned of the transfer, it amended its complaint to add the second trust as a defendant and alleged that the transfer was fraudulent. The firm also filed a notice of lis pendens and attachment on the property. The court granted the relief.
The defendants sued the law firm in another county, alleging that the recording of the lis pendens constituted slander of title and tortious interference with its prospective economic advantage in reselling the property. That complaint was later dismissed on motion.
The breach of contract action was stayed in light of a fee arbitration panel proceeding. The law firm prevailed and the order was affirmed by a district court.
Proceedings in the district court were before Judge Cole. These proceedings involved discovery disputes and sanctions against the former client. Defaults against the trusts were ordered as well as a judgment for double the value of the property -- $340,000.
On appeal (and for the first time), the charitable trusts claimed that Judge Cole was required to recuse himself sua sponte because of a longstanding social relationship with a former judicial colleague (Judge Crowley) who was now at the law firm.
The court "reemphasize[d] that a party who is concerned about a judge's impartiality should tender its concerns to the court at the earliest possible moment."
Here, the charitable trusts had no done so.
Further, the court noted, there are only sixty active judges in Maine and only 3800 lawyers.
Collegiality between judges among themselves and with bar is not only permitted; it is encouraged:
At oral argument, counsel expressed surprise that judges will often have lunch together...
It is unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships. We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law. We are cognizant that the party status of the law firm in this instance makes this case somewhat different from those where a former colleague is simply an advocate for a party before the court.
Judge Cole and Judge Crowley were not alleged to be related or to have financial entanglements.
a friendship between colleagues or former colleagues that include such interactions [as lunch, golfing, hockey games or socializing at bar events] does not provide a basis for requiring recusal.
Nor do such contacts require disclosure.
The court also criticized counsel for injecting facts outside the record on appeal of the disqualification issue.
The court remanded for revised damages findings but rejected all other legal arguments raised by the charitable trusts. (Mike Frisch)
The District of Columbia Board on Professional Responsibility has amended its policies for compensating lawyers who defend attorneys accused of ethics violations.
An attorney who seeks counsel under the new policy must establish "financial hardship" under standards established by the BPR by filing an ex parte affidavit. The accused attorney then may select counsel who will be paid at the rates established under the Criminal Justice Act with a $25,000 fee cap.
Reimbursement for the work of law clerks, paralegals and investigators is also available.
Unbelievably, free counsel can be obtained before any charges are filed.
Attorneys cannot get free counsel for a reinstatement proceeding or for a reciprocal discipline matter unless the reciprocal matter is joined with other charges.
So far as I am aware, the District of Columbia is the only jurisdiction where lawyers charged with disciplinary violations can get a defense attorney provided free of charge.
Indeed, many jurisdictions impose costs on an attorney found in violation of ethics rules. Heaven forbid D.C. would ever consider imposing costs.
By the way, the representation is not for free. It's paid by D.C. Bar dues.
Personally, I can think of more appropriate uses for mandatory bar dues.
For starters, we could increase payments under the Clients' Security Fund to victims of lawyer thefts.
This policy reflects something I've long been aware of -- the D.C. BPR cares as much (if not more) about protecting accused lawyers than it does about what is supposed to be its reason to exist - protecting the public from unfit lawyers.
Update: In response to a query from a reader of this blog, I wish to make something clear.
I am entirely in favor of an accused attorney having counsel. Indeed, competent defense counsel can play an essential role in assuring a fair process.
I just strongly object to the funding of defense counsel through mandatory bar dues. (Mike Frisch)
Tuesday, August 19, 2014
A North Carolina attorney has been reprimanded for misconduct in a "protracted and extremely contentious" domestic relations matter.
The misconduct involved ex parte e-mails to the judge and her law clerk.
While the attorney had contended that she was only reponding to e-mails submitted by the opposing party, the reprimand states that the attorney was "obligated to take the high road" and refrain from the ex parte contacts.
The Grievance Committee also expressed concern about an e-mail that the attorney sent to the opposing party (presumably not represented because there was no allegation that the communication violated Rule 4.2) that got "personal"
You're a terrible husband, father, lawyer and human being.
The committee expressed an expectation that the attorney would heed and remember the sanction. (Mike Frisch)
Monday, August 18, 2014
From the web page of theTennessee Supreme Court
The Tennessee Supreme Court has reinstated a Memphis attorney’s 60-day suspension from the practice of law for his behavior during a trial.
Attorney R. Sadler Bailey was representing a plaintiff in a medical malpractice case in 2008. On the opening day of trial, in a case that already had become volatile among the attorneys, Mr. Bailey became upset when it appeared that Circuit Court Judge Karen Williams was about to rule against his client. After vehement arguments between the attorneys for the parties, the defense began their opening statements and Mr. Bailey objected 12 times, most made in a manner that was in defiance of Judge Williams’ instructions.
The next day, Mr. Bailey criticized Judge Williams multiple times in court, and the defense sought a mistrial, which the judge initially denied. After continued complaints from Mr. Bailey, a mistrial was declared based on Mr. Bailey’s “contentious conduct toward the court.”
Both Judge Williams and defense counsel filed a complaint regarding Mr. Bailey with the Board of Professional Responsibility (BPR), which is responsible for investigating complaints and initiating disciplinary proceedings against attorneys in Tennessee.
A BPR hearing panel heard from four witnesses who described Mr. Bailey’s behavior as “disrespectful,” “frenetic,” and “harsh.” Mr. Bailey asserted that he was merely fulfilling his duty to zealously represent his client.
The Panel found that Mr. Bailey violated several Rules of Professional Conduct and that his extensive experience, misconduct during the course of the trial, and lack of remorse for his behavior supported imposing a 60-day suspension. Mr. Bailey appealed to the Chancery Court for Shelby County, which agreed that the violation of the Rules of Professional Conduct occurred, but decided that a 60-day suspension was not warranted. The BPR appealed to the Supreme Court.
The Supreme Court concluded that Mr. Bailey’s 60-day suspension is consistent with Tennessee cases involving similar violations of the Rules of Professional Conduct and noted that the 60-day suspension is well below the minimum of six months that national standards of the American Bar Association recommend. The court also rejected Mr. Bailey’s claim that his actions were necessary to properly represent his client.
“Attorneys who cross this line may not avoid punishment by claiming that their misconduct served the greater good or the interests of their clients, as such exceptions would overwhelm the rules,” wrote Justice Cornelia A. Clark in the unanimous Opinion.
Read the opinion in R. Sadler Bailey v. Board of Professional Responsibility, authored by Justice Clark.
An attorney convicted in a drug distribution case has been disbarred by the Pennsylvania Supreme Court.
The attorney signed for and accepted four UPS packages that contained approximately 243 pounds of marijuana. The UPS agent was actually an undercover police officer.
The attorney was convicted at a bench trial and failed to report the conviction to the Bar.
And his attitude did not help
In keeping with Respondent's view that he did nothing wrong and simply signed for a package, it is clear that he failed to show remorse. Though he acknowledged his actions and testified that he was "very sorry to be in this position and the circumstances" that brought him bE)fore the Hearing Committee (N.T. p. 80), Respondent has not sincerely recognized the gravity of harm his convictions have brought to the reputation of the bar or the negative impact that his convictions have had on the public. There is no question that the refusal to acknowledge one's guilt and a lack of remorse are aggravating factors that must be taken into account.
He blamed the conviction on "overzealous prosecution." (Mike Frisch)
Saturday, August 16, 2014
An attorney was censured and fined $100 by the District Court Division of the General Court of Justice (North Carolina) for "unprofessional behavior."
When asked in chambers whether she had complied with her obligation to "yield gracefully to the court's order," she stated:
I don't feel procedures and statutes have been followed and I'm just being honest with you.
After the question was repeated, she was unresponsive and then said:
I just don't agree.
Then, while waiting in court for the judge to complete the contempt paperwork in his chambers, she became impatient and said:
This is bullshit.
After a lieutenant told her to keep quiet, there was this:
This shit doesn't happen in Raleigh.
Told again to be quiet, the reply:
The court is not in session.
The attorney waved the $100 during the above exchanges.
The web page of the North Carolina State Bar reports
Asheville attorney Julia Leigh Sitton pled guilty to misdemeanor obstruction of justice. Sitton was an employee of the Bev Perdue campaign. Sitton agreed that a campaign contributor could pay her an extra $2,000 per month through a purported consulting contract under which Sitton did not actually provide any consulting services to the contributor. This arrangement allowed the contributor to exceed the limit on allowable campaign contributions under N.C. Gen. Stat. § 163-278.13 and allowed the campaign to avoid reporting the payments on campaign finance reports required by N.C. Gen. Stat. § 163-278.8 and § 163-278.11. The DHC suspended Sitton's law license for three years. After serving one year of the suspension, Sitton may apply for a stay of the balance upon compliance with enumerated conditions. Sitton received credit for the time she voluntarily abstained from the practice of law following her conviction.
WRAL.com reported on the guilty plea in the criminal case. (Mike Frisch)
Friday, August 15, 2014
The Louisiana Supreme Court has entered into a settlement agreement with the United States Department of Justice with respect to concerns raised by DOJ in the mental health evaluations of bar applicants.
The substance of the agreement is set forth in this announcement
The Justice Department announced today that it has entered into a settlement agreement with the Louisiana Supreme Court that will resolve the department’s investigation of the court’s policies, practices and procedures for evaluating bar applicants with mental health disabilities. The department’s investigation found that during the Louisiana bar admissions process licensing entities based recommendations about bar admission on mental health diagnosis and treatment rather than conduct that would warrant denial of admission to the bar.
The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the Americans with Disabilities Act (ADA). It prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations or onerous monitoring and reporting requirements. Title II of the ADA prohibits public entities, including licensing entities, from imposing unnecessary eligibility criteria that tend to screen out individuals with disabilities, or imposing unnecessary burdens on individuals with disabilities that are not imposed on others.
The department found that diagnosis and treatment, without problematic conduct, did not effectively predict future misconduct as an attorney and did not justify restrictions on admission. Yet the Louisiana bar admissions process imposed unnecessary burdens on applicants and attorneys based on their diagnosis and treatment, in violation of the ADA. Questions about mental health diagnosis and treatment, such as those used by Louisiana, are counterproductive to licensing entities’ interest in attorney fitness because individuals who would benefit from mental health treatment may be deterred from obtaining it by the knowledge that they will have to disclose their treatment to licensing authorities.
“Today’s agreement will ensure that qualified bar applicants with mental health disabilities are able to pursue their dream of becoming licensed attorneys, without discrimination based on diagnosis or treatment,” said Acting Assistant Attorney General Molly Moran for the Civil Rights Division. “Qualified individuals with disabilities, including mental health disabilities, have valuable contributions to make to the legal profession and to their communities. Their diagnosis should not hinder or prevent them from doing so. Though bar licensing entities have the important responsibility of ensuring that all licensed attorneys are fit to practice law, licensing entities must discharge this responsibility in a manner that is consistent with civil rights laws.”
“This agreement is a testament to the United States Department of Justice’s commitment to fighting discrimination against persons with disabilities and further ensures that qualified individuals will have the opportunity to pursue their career goals and make valuable contributions to our community,” said U.S. Attorney Kenneth Allen Polite Jr. for the Eastern District of Louisiana. “The cooperation between the parties in reaching this agreement demonstrates a shared priority of protecting against discrimination.”
Under the agreement, the court will, among other actions:
- Revise its character and fitness screening questions so that they focus on applicants’ conduct or behavior, and ask about an applicant’s condition or impairment only when it currently affects the applicant’s ability to practice law in a competent, ethical and professional manner or is disclosed to explain conduct that may otherwise warrant denial of admission;
- Refrain from imposing unnecessary burdens on applicants with mental health disabilities by placing onerous disability-based conditions on their admission, invading their privacy, or violating their confidentiality;
- Re-evaluate prior and pending applications of applicants who disclosed mental health disabilities under the revised, non-discriminatory procedures set forth in the agreement; and
- Pay $200,000 to compensate a number of affected bar applicants and attorneys.
Since the department’s letter of findings concluding that the court was in violation of Title II of the ADA was issued in February, the court has worked cooperatively with the department to negotiate an agreement and to implement corrective measures.
The department has also raised issues about unnecessary bar application questions related to mental health disabilities with the states of Vermont and Connecticut and with the National Council of Bar Examiners (NCBE). The NCBE revised two of its questions about mental health on February 24, 2014.
This will likely affect the bar admissions processes throughout the country. (Mike Frisch)
A suspension of four months was imposed by the New York Appellate Division for the First Judicial Department of an attorney convicted of criminal facilitation in the fourth degree.
The findings of misconduct were
based upon his plea allocution in which he acknowledged that "in 2007, in the Bronx, after an injured patient was accepted as a personal injury client, [I] paid an employee at Lincoln Hospital for  disclosing the patient's information to [me]." Respondent, who is admitted in Connecticut and New Jersey, promptly notified all three jurisdictions of his conviction.
In the disciplinary matter
At the sanction hearing held on December 10, 2013, respondent testified in his own behalf and called three character witnesses. He also submitted character letters and expressed remorse for his conduct. The evidence adduced at the hearing disclosed that respondent graduated from Brooklyn Law School in 1989 and became associated with Dinkes & Morelli. In 2006, eight years after the dissolution of that firm, while working for the firm Dinkes & Schweitzer, respondent, at the behest of partner William Dinkes, became involved in a scheme of paying hospital employees $500 for referrals. Respondent made eight such payments, but ceased the practice in September 2007 when Dinkes died suddenly. Respondent indicated he did not continue the payments after Dinkes' death since he did not know the source of the funds.
Respondent has had an otherwise unblemished record during his 23 years of practice. He has paid the fine and sanctions and performed the community service through work with the Fortune Society.
Thursday, August 14, 2014
The District of Columbia Court of Appeals has reversed a legal malpractice judgment, concluding that the plaintiff - a non-client - was not owed a duty of care by the defendant attorney.
The plaintiff was in a relationship with a married man. She approached the attorney to secure representation for a divorce for him. The married man eventually retained the attorney, who filed the divorce complaint.
There was delay in serving the complaint and the client died before the divorce was finalized.
A jury awarded the plaintiff damages based on retirement benefits that the client would have received if the divorce was completed and the decedent had married her. The damages exceeded a quarter of a million dollars.
It was undisputed that the plaintiff was never a client of the defendant or his law firm.
The court held as a matter of law that the duty of care did not extend to the plaintiff. Although there are limited situations where an intended beneficiary may sue a lawyer,
...it is not difficult to envision situations where the interests of the client seeking the divorce and his fiancee waiting in the wings could come into conflict, which argues against any dilution of the attorney's obligation to serve the interests of his or her client alone.
On appeal, the attorney conceded negligence in handling the divorce. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has imposed disbarment for an attorney's felony conviction.
The attorney pleaded guilty in federal court to offenses relating to
...his participation in a scheme, from in or about November 2012 up through and including in or about April 2013, an object of which was to accept a bribe in exchange for authorizing a member of the Democratic Party to appear on the Republican Party primary ballot for New York City Mayor, in violation of New York Penal Law §§ 200.45 and 200.50 (hereinafter the 2013 NYC Mayor Bribery Scheme).
Disbarment was automatic for this felony conviction.
The New York Post reported that the attorney was the head of the Bronx Republican Party. (Mike Frisch)
A misdemeanor criminal conviction has resulted in an attorney's public censure from the New York Appellate Division for the Second Judicial Department.
On or about May 21, 2011, the respondent was involved in an incident at Saratoga Spa State Park, which is located within the City of Saratoga Springs, New York, during which he allegedly tackled David P. Needham, throwing Mr. Needham to the ground and causing Mr. Needham to suffer injuries to his neck and shoulder as well as a head concussion. The respondent also was alleged to have applied pressure to Mr. Needham's throat and neck that impeded Mr. Needham's breathing and caused him to be dazed and shaken and to have memory loss. Based upon the subject alleged incident, the respondent was charged, on or about June 6, 2011, in the City Court for the City of Saratoga Springs, with assault in the third degree, a class A misdemeanor, in violation of Penal Law § 120.00(1), and strangulation in the second degree, a class D felony, in violation of Penal Law § 121.12. On September 12, 2011, with the prosecution's consent, the respondent entered an Alford plea (see North Carolina v Alford , 400 US 25) to the reduced charge of reckless endangerment in the second degree, a class A misdemeanor, in violation of Penal Law § 120.20, in full satisfaction of the charges.
As to the sanction
In determining an appropriate measure of discipline to impose, this Court has considered the Special Referee's determination that the respondent's conduct was spontaneous, "having occurred in the heat of the moment." Additionally, the conduct was unrelated to the practice of law. This Court also has considered the evidence in mitigation offered by the respondent, including character letters attesting to the respondent's outstanding reputation in the legal community and his record of pro bono activities. The respondent has no prior disciplinary history.
A Florida attorney who has never been admitted to practice in South Carolina has managed to get permanently disbarred by the South Carolina Supreme Court.
The attorney set up an office in the Palmetto State ostensibly to engage in a federal immigration practice.
Except for a two-week period in 2012, she had no South Carolina lawyers associated with the practice.
The court found that the attorney's web page and other professional listings failed to indicate her practice limitations and contained other material misrepresentations.
She advertised for clients in matters that required her to be a licensed South Carolina attorney.
Further, despite her initial cooperation, she made false statements and eventually defaulted in the bar investigation.
Although the court characterizes its sanction as permanent, it leave open the possibility that the attorney may seek to have it set aside in the future. (Mike Frisch)
Wednesday, August 13, 2014
The Washington Court of Appeals - Division III sua sponte disqualified an attorney from representing his client in an appeal from the imposition of sanctions in a domestic action.
As the noblest calling, the legal profession demands the highest ethical behavior from its members. A supreme commandment of attorney ethics is undivided loyalty to a client and shunning any self-interest that would conflict with the interests of the client.
The attorney made arguments on appeal of a $55,000 award of attorneys fees and costs that were beneficial to himself but harmful to the client.
The essence of the argument was that the client should be held solely responsible for the sanction.
The court makes clear that, when attorney and client point fingers at each other, a concurrent conflict exists. (Mike Frisch)
The New Hampshire Supreme Court has reversed an order dismissing a legal malpractice case.
The court held that there is no per se rule that requires a legal malpractice plaintiff to offer expert testimony
...the trial court granted the defendants’ motion to dismiss because "the plaintiff . . . failed to disclose an expert capable of establishing the standard of care and the breach of that standard of care as well as the proximate cause of the alleged injuries." The trial court based its decision on a categorical rule that, "[b]ecause the extent to which an attorney, in the exercise of due care, should investigate a claim to file a timely action is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony." (Quotation omitted.) Because we have not adopted such an unqualified rule, the trial court erred as a matter of law in granting the motion to dismiss. See, e.g., Carbone, 151 N.H. at 528-29 (explaining case was not "one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiff’s] injuries that expert testimony was not required"); Wong, 148 N.H. at 374 (affirming dismissal of legal malpractice claim for lack of expert testimony because evidence of negligence was not "so patent and conclusive that reasonable persons c[ould] reach only one conclusion" (quotation omitted)).
The underlying case was brought by the plaintiff against a defendant wjo was alleged to have removed timber from his property. That case was dismissed on statute of limitations grounds. (Mike Frisch)
Tuesday, August 12, 2014
The Illinois Review Board has recommended a censure of an attorney based on findings of misconduct arising from the representation of a person who survived an airplane crash.
As a result of the crash, [client] Gumus underwent back surgery and was hospitalized for several weeks. Following his release from the hospital, he went to his ex-wife's home in Rotterdam to recuperate. The first evening he arrived at his ex-wife's home, he suffered a heart attack. Sometime after the plane crash but prior to April 19, 2009, he retained a Netherlands law firm called SAP Advocaten ("SAP") to represent him in all claims relating to the crash.
Soon after the crash, Respondent sent representatives to the Netherlands to meet with victims of the crash. Surreya Yigitbasi ("Yigitbasi"), a lawyer in Turkey, worked for Respondent on an hourly basis. He referred clients to Respondent's firm and assisted Respondent with matters relating to the crash. Yigitbasi testified at the hearing in this matter that he received a phone call in April 2009 from Ali Atak ("Atak"), who identified himself as Gumus' uncle. Yigitbasi gave Gumus' phone number to a lawyer from Respondent's firm. On April 19, four individuals visited Gumus while he was bedridden. After a presentation lasting several hours, Gumus signed a document to retain Respondent's firm to represent him in the United States in claims against Boeing Company or any other persons or corporations that could be liable for his injuries arising out of the plane crash.
As of April 19, Gumus had already retained SAP and he had no intention of discharging SAP from representing him. He was in pain during the meeting and did not understand the purpose of the meeting. Within a day after the meeting, Gumus called SAP. He asked SAP to "certify that these are not my lawyers" and asked for assistance to prevent the four individuals from disturbing him any further. SAP lawyer Sander de Lang ("de Lang") explained at his evidence deposition that under Dutch law, a client may cancel any agreement within eight days after signing without incurring any costs. Mr. de Lang assisted Gumus in preparing a document entitled "Notice of Withdrawal of Attorney", withdrawing "the power of attorney for representation" by Respondent's firm. Mr. de Lang sent a letter and the Notice of Withdrawal to Respondent. Respondent admitted receiving the documents. However, Respondent believed that Gumus was simply confused as to why he had hired Respondent's firm. Respondent did not contact Gumus or de Lang after receipt of the letter and the Notice. Instead, she testified she contacted Yigitbasi, who in turn contacted Atak. Atak did not contact Gumus but told Yigitbasi in this same conversation that everything was "okay" and that Yigitbasi could continue. Yigitbasi relayed the content of the conversation with Atak to Respondent. Respondent testified she then proceeded to do work for Gumus and other victims of the crash in 2009 and early 2010.
Gumus was unaware that Respondent was still acting as his lawyer and he did not authorize Respondent to perform any services on his behalf. SAP worked during the same time period on behalf of Gumus. SAP also worked with an associate in the Kreindler & Kreindler law firm in New York named Orla Brady, and with the Chicago law firm of Powers, Roger & Smith.
On March 23, 2010, Respondent filed a lawsuit in the Circuit Court of Cook County on behalf of Gumus and others against Boeing. She did not communicate with Gumus prior to filing suit. Respondent testified she told Yigitbasi to contact Gumus to approve the filing of the complaint. Yigitbasi told Respondent that he was unable to reach Gumus but that Atak said to go ahead and file the complaint. There was no testimony that either Yigitbasi or Atak communicated with Gumus. Gumus testified he never authorized Respondent to represent him or to file a lawsuit on his behalf.
In early May 2010, Mr. de Lang learned from Turkish Airlines that Respondent was claiming to represent Gumus. He immediately sent an e-mail to Respondent stating that Gumus had discharged Respondent and attaching the April 2009 Notice. Respondent's partner, Mervin Mateo, a New York lawyer, responded to the e-mail advising de Lang of the lawsuit and stating that it would be detrimental to Gumus to dismiss the case. Mateo asserted that Respondent would contact the client. Respondent did not contact Gumus although she claimed an associate, Ray Welcher ("Welcher"), sent Gumus a letter dated May 6, advising him of the filing of the action against Boeing. Welcher denied writing or authorizing the letter. Gumus testified he never received a letter from Respondent's office.
After a flurry of e-mails between various lawyers, Kreindler & Kreindler and Powers, Roger & Smith moved to substitute as counsel in the lawsuit. Thereafter, at Respondent's direction, Welcher contacted Orla Brady of Kreindler & Kreindler and told Brady that Respondent's firm would not oppose the motion to substitute if Brady agreed to pay Respondent's firm 50% of any fees received. Brady refused the demand. Respondent did not appear at the hearing on the motion to substitute but sent Welcher to appear for the firm. At the hearing on the motion to substitute, Brady made an oral motion for sanctions against Respondent. The Court granted the motion to substitute but denied the oral motion for sanctions, stating, "Put it in writing and I will reconsider it." There was no testimony that Brady ever requested reconsideration; she reported Respondent's conduct to the ARDC.
The board agreed with the hearing board that the attorney violated Rule 1.16. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a statement by the press spokesperson for the Orleans Parish District Attorney's Office did not violate ethics rules.
The basis of the bar charges was a remark made by the accused attorney after a judge had found the defendant in a high-profile case not guilty.
The newspaper report that led to the charges is linked here.
In reponse to a reporter's query, the spokesperson said
District Attorney Cannizzaro has fought hard to eliminate corruption, unfortunately [the judge] thwarted our efforts today.
Both the hearing committee and found found that the statement was not false and was not intended to impugn the integrity of the judge.
The board ordered the dismissal of the charges. (Mike Frisch)