Tuesday, July 1, 2014
The New York Court of Appeals has answered a question posed by the United States Court of appeals for the Second Circuit as follows
We hold that pending hourly fee matters are not partnership "property" or "unfinished business" within the meaning of New York's Partnership Law. A law firm does not own a client or an engagement, and is only entitled to be paid for services actually rendered.
The litigation involved trustee claims against Thelan and Coudert Brothers.
The notion that law firms will hire departing partners or accept client engagements without the promise of compensation ignores commonsense and marketplace realities. Followed to its logical conclusion, the trustees' approach would cause clients, lawyers and law firms to suffer, all without producing the sought-after financial rewards for the estates of bankrupt firms.
Treating a dissolved firm's pending hourly fee matters as partnership property, as the trustees urge, would have numerous perverse effects, and conflicts with basic principles that govern the attorney-client relationship under New York law and the Rules of Professional Conduct. By allowing former partners of a dissolved firm to profit from work they do not perform, all at the expense of a former partner and his new firm, the trustees' approach creates an "unjust windfall," as remarked upon by the District Court Judge in Geron (476 BR at 740)...
Ultimately, what the trustees ask us to endorse conflicts with New York's strong public policy encouraging client choice and, concomitantly, attorney mobility...
An attorney who has been privately reprimanded three times and publicly reprimanded once in the past gets his second public reprimand from the Wisconsin Supreme Court.
The problem involved his representation of a corporation that owned a restaurant
Although the court of appeals ultimately reversed the circuit court since Attorney Hudec timely filed an amended answer that joined issue as to all causes of action, the court of appeals criticized statements made by Attorney Hudec at the motion hearing in circuit court. The court of appeals referred to Attorney Hudec's "lack of attention to detail." The court of appeals also said Attorney Hudec's conduct was "egregious." The court of appeals further found that Attorney Hudec incorrectly stated the standard of review as being de novo, whereas the correct standard of review was whether the lower court's decision was an erroneous exercise of discretion.
The court of appeals also said Attorney Hudec's "mistake" in signing and filing an incomplete answer appeared "not to be an isolated incident but a pattern of gross and inexcusable inattention to details." The court of appeals sanctioned Attorney Hudec for intentionally including materials not appropriate to the appeal, including an administrative decision which postdated the decision being appealed and for intentionally including materials the court deemed "salacious." The court of appeals imposed a $500 penalty as a sanction.
The court of appeals also found that Attorney Hudec failed to serve a copy of the reply brief on the respondent as required by Wis. Stat. § 809.19(8). The court of appeals also chastised Attorney Hudec for failing to proofread his submissions and said, "Frankly, we are at a loss to understand what is clearly Hudec's intentional disregard of the rules and the details, including his failure to proofread."
Chief Justice Abrahamson dissented
I would not adopt the stipulation that imposes a public reprimand. The court of appeals characterized Attorney Hudec's conduct as demonstrating "a pattern of gross and inexcusable inattention to details." Attorney Hudec has in the past been the subject of three private reprimands and one public reprimand. A public reprimand in the present case does not comport with the violation of the Code or the concept of progressive discipline.
The Illinois Administrator has filed an amended complaint in the disciplinary matter involving former Sidley Austin partner Lee Smolen.
Between 2007 and 2012, Respondent was a partner at Sidley Austin LLP, based in the firm's Chicago office. During that time, he was the head partner in charge of the Chicago office's real estate practice group, and was a global coordinator of the firm's real estate practice group. In addition to the responsibilities listed above, after October of 2008, Respondent served as a member of the firm's executive committee. Respondent was responsible for, among other things, billing matters affecting real estate transactions involving a major financial institution, one of the firm's largest clients. One account relating to that client ("the unallocated account") contained funds that had been paid by the client as fees, but against which additional charges could be made for various matters, including post-closing fees. In the absence of such charges, funds in the unallocated account belonged to the law firm.
Between 2007 and 2012, Respondent submitted more than 800 requests that the firm reimburse him from the unallocated account for cab rides that he knew he had not taken. In support of the false requests, Respondent fabricated false taxi receipts, in amounts averaging approximately $80 each, and the firm paid Respondent approximately $69,000 based on the false submissions.
During the same period, Respondent also submitted, or caused to be submitted, fabricated cab receipts totaling at least $567 that were charged to other firm clients.
By causing funds to be paid to himself from the unallocated account, Respondent reduced the amount of money in that account that would otherwise have been paid to the firm and, eventually, distributed to Respondent and Respondent's partners.
The amended answer is linked here.
The amended answer states, in part
Respondent admits that, between 2007 and 2012, he submitted more than 800 requests that the firm reimburse him from the "unallocated account" for cab rides that he had not taken. Respondent also admits that he fabricated taxi receipts in amounts averaging approximately $80 each, and that the firm paid him approximately $69,000 based on his submissions, further stating that funds so obtained were utilized for purposes that he considered related to the firm. In further clarification, Respondent states that his submission of fabricated taxi receipts was a poorly conceived short cut around the firm's expense reporting procedures in order to secure more time to address his substantial and demanding commitments to the firm. While wrong, Respondent's conduct was not the result of any intent to profit personally. Respondent affirmatively states that he has reimbursed the firm for the approximately $69,000 at issue.
Monday, June 30, 2014
The New Jersey Supreme Court reversed the dismissal of a federal civil rights claim brought by an attorney injured at a state-run mental health facility
Plaintiff Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division of Mental Health Advocacy, providing legal representation to clients involuntarily committed in state psychiatric facilities, including Ancora Psychiatric Hospital (Ancora). Each ward at Ancora contained a day room in which up to forty patients, including those who were involuntarily committed and classified as a danger to themselves or others, could congregate. Visiting attorneys and psychiatrists also were required to use the day rooms for professional interviews. Although frequent violence occurred in the day rooms, no security guards or cameras were posted there. From October 2003 through December 2005, Ancora reported almost 4,000 assaults, including 810 assaults against staff members and visitors, 200 of which resulted in injuries.
In September 2005, Gormley arrived at Ancora to interview clients. She sat in a day room with her back against the wall to prevent attacks from behind. One of her clients was B.R., who was suffering from a psychotic disorder with hallucinations and who had been assigned Continuous Visual Observation (CVO) status because she posed a safety risk to herself and others. Gormley, who was not informed that B.R. was on CVO status, sat near her in order to hear over the noise in the day room. As Gormley turned her head, B.R. hit her several times. Gormley tried to flee, but B.R. grabbed her by the hair, causing her to fall and strike her head on the concrete floor. When Gormley regained consciousness, B.R. was still attacking her. Gormley was out of work for about four months due to her physical and mental injuries.
For the majority
...the Court concludes that Gormley’s right to be free from state- created danger was clearly established at the time of the assault. In light of the history of violence at Ancora and the requirement that attorneys meet with clients in the chaotic day rooms, reasonable hospital administrators knew or should have known that the conditions they created breached the substantive-due-process guarantee of the United States Constitution.
The Appellate Division had found the federal claim barred by the doctrine of qualified immunity.
A dissent agreed with the Appellate Division and would dismiss on qualified immunity grounds. (Mike Frisch)
The Georgia Supreme Court has disbarred an attorney admitted in 1964 for this conduct with a client who was in his office to pick up a settlement check.
When the client asked what she owed him in fees, he responded
With or without a blow job?
He came around the desk and said
Now it's time for the blow job.
He then exposed himself to her and touched her breasts. She pushed him away and as she was leaving, he said
You're not going to give me a blow job. You're no fun.
She called the cops. He said he was "horsing around" and was impotent due to prostate cancer. He thought the client knew he was "just kidding."
The court ordered disbarment as the appropriate sanction. (Mike Frisch)
A District of Columbia Hearing Committee has recommended that an attorney be disbarred for misappropriation and other serious misconduct.
However, the committee had some harsh words for the Office of Bar Counsel
Before we address Respondent’s violations of his ethical obligations, we turn to
Respondent’s motion to dismiss based on Bar Counsel’s delay in bringing these charges. First, the delay in bringing this case is significant. The events in question took place eight years before Bar Counsel filed its Specification of Charges. By the time the Board on Professional Responsibility and the Court of Appeals will have an opportunity to act on this case, more than a decade will have passed. Bar Counsel should not wait eight years to bring a Specification of Charges, particularly given the seriousness of the violations; this is simply too long.
The committee notes that the bar complaint was filed in April 2005 and that the last communication in the investigation was in 2007. Nothing happened further until the matter was assigned to a newly-hired assistant bar counsel in 2011.
The case is In re Saint-Louis and can be accessed here.
This lack of diligence by Bar Counsel has become, lamentably, all too common over the past several years.
Equally lamentable is the fact that the Board on Professional Responsibility (which has its own serious delay problems) and the Court of Appeals seem disinclined to address the issue in any meaningful way.
Recently, the Court of Appeals gently noted Bar Counsel's concession that it had been "less than diligent" in its handling of the investigation into serious misconduct.
The court accepted a consent to discipline in the case, where Bar Counsel's investigation had begun in 2003 and was not resolved until 2014. An eight-year investigation in a case that eventually result in a one-year consent suspension, with the court agreeing to treat the delay as a mitigating factor.
Legal Times reported that the conduct occurred in 1999 and that
[Attorney] Saito agreed to the discipline. In an interview, he said that given the amount of time it took the Office of Bar Counsel to prosecute his case, his age (he’s 73) and the difficulties he anticipated in tracking down witnesses so long after the events at issue, he thought it best to reach an agreement.
“It just took too long and took too much of my life,” he said.
The Office of Bar Counsel docketed a complaint against Saito in 2003. Not much happened in the case until 2011, when it was reassigned to a new assistant bar counsel “in an effort to resolve old, pending cases,” according to documents filed in Saito’s disciplinary case.
When a lawyer does little or nothing to advance a case for eight to ten years, we call that neglect and the lawyer/law office where this occurs is subject to bar discipline.
Who investigates and prosecutes such neglect?
The Office of Bar Counsel.
I shudder to think what might have happened to these cases if Phil Fox (the aforementioned new hire) had retired rather than signed up to be an assistant bar counsel.
If it were up to me (and it is not), all components of the D.C. attorney discipline system would be required to report on how long complaints and petitions take to resolve -- investigations, dismissals, diversions, informal admonitions and prosecutions.
How expeditious are the hearing committees and the BPR after charges are filed?
Without annual reports (common in many jurisdictions but anathema to D.C.), no one can begin to know.
These statistics would give the public real insight into whether attorney self-regulation works in D.C.
And then, maybe, there would be some long-overdue accountability for a system entrusted with upholding the integrity of the legal profession. (Mike Frisch)
Friday, June 27, 2014
An Illinois Hearing Board has recommended a suspension of six months and a professionalism course for misconduct by an attorney in several matters.
Among the charges sustained were a series of Rule 4.4 violations.
One involved his treatment of opposing counsel
We...find Respondent violated Rule 4.4 when he called Ms. Stevens derogatory names, such as "bitch, "asshole," and "slut," and stated "you got a nice ass, too bad your head is up it." Although we recognize Respondent was not positive whether he had called Ms. Stevens a "slut," we are convinced he had given the persuasive testimony from both interested and disinterested parties regarding his use of this word. Further, his failure to deny that he had called her a "slut" when she accused him of doing so before Judge Locallo on September 11, 2009, also supports our finding that he used this word. These statements are not only unprofessional, but are derogatory, vulgar and profane. There was credible testimony by more than one individual that Respondent regularly made these and additional statements to and about Ms. Stevens before she approached the bench so as to have an effect on her advocacy. Given this credible testimony and Respondent's repeated use of derogatory language, we find by clear and convincing evidence that Respondent violated Rule 4.4.
Additionally, Respondent's reference to Ms. Stevens as "mommy dearest," "pervert," and "child molester," or other names insinuating that she molested a child, served no substantial purpose other than to embarrass and burden her. Even if Respondent believed Ms. Stevens had engaged in inappropriate sexual contact with Cristina, "there were other equally effective ways in which Respondent could have communicated the seriousness of his position . . . without resorting to personal attacks, insults, and abuse."
In another matter opposing counsel got this
The evidence shows Respondent stood up in an open courtroom and in a loud voice accused Mr. Xydakis of snorting cocaine at least three times and called him an "idiot." Also, during a legal argument before the Judge, Respondent referred to Mr. Xydakis as an "idiot" and a "coke head." Respondent's choice of words and manner of bringing this to the court's attention is problematic. He resorted to using insulting and derogatory language about opposing counsel in the context of a judicial proceeding. There was clearly a more appropriate way to disclose what he claimed to have seen without resorting to personal attacks. See Gerstein, 99 SH 1 (Review Bd. at 6); see also Hoffman, 08 SH 65 (Review Bd. at 14). Accordingly, we find the Administrator met his burden and proved by clear and convincing evidence that Respondent's statements to and about Mr. Xydakis served no substantial purpose other than to embarrass, delay or burden him.
And a Deputy
The Administrator proved by clear and convincing evidence that Respondent's statements that Deputy Kennealy was a "dumbbell" and his repeated threats to "have her job," served no substantial purpose other than to embarrass or burden her, in violation of Rule 4.4. We find Respondent resorted to name calling and threats because he was angry with and embarrassed by Deputy Kennealy because she had admonished him. While we [sic] the act of calling someone a "dumbbell" is not, by itself, so egregious, the fact that Respondent did so in anger and while also threatening to have Deputy Kennealy's job amounted to harassment. Respondent by continuously making these threats and calling her names attempted to burden her with worry over her career and sought to embarrass her in front of both his colleagues and her colleagues. Respondent should have exercised discretion and simply brought his concerns to Deputy Kennealy's supervisor through a letter or scheduled appointment.
I'm not entirely confident that a course in professionalism will cure the problem. (Mike Frisch)
You won't get wind of this from the web pages of the District of Columbia Bar or the Court of Appeals, but the Board of Governors has proposed that the court amend its Rule XI by changing the name of the Office of Bar Counsel to the Office of Disciplinary Counsel.
By letter to Chief Judge Washington dated May 14, 2014, the Board gave three reasons for changing the name that has been used in court opinions and known to the Bar and the public since 1972:
1. "To reflect more accurately the activities of the prosecutorial office of the disciplinary system; "
2. "To resolve the current confusion among the members of the Bar who believe that Bar Counsel is the office that they should contact to advise them about ethical questions; and"
3. "To avoid erroneous service of process on disciplinary authorities perceived to be counsel for the District of Columbia Bar in matters in which the Bar is sued."
If you want to avoid confusion, don't change the name that an Office has been known by for the past 42 years.
It is also well known and made clear to whoever calls Bar Counsel that the office does not provide ethical advice. That has been so since the 1980s. Any calls are simply referred to the Bar's Ethics Counsel. Reason #2 is entirely specious. -- a solution without a problem.
But it is the third justification that really grabs me --they want to it make it easier to sue the Bar. That doesn't even pass a laugh test.
I'm not sure what is behind this truly awful idea, but it surely is not for the reasons given by the Board of Governors.
Also, if names of the disciplinary components need to "reflect more accurately" their functions, I can think of several new names that better describe the Board on Professional Responsibility.
And why is this proposal not on the Bar's web page? (Mike Frisch)
Thursday, June 26, 2014
A longtime Kansas City Royals baseball fan who lost a jury verdict for an eye injury allegedly sustained during the "Hotdog Launch" by team mascot Sluggerrr gets a new trial.
The plaintiff was at a sparsely attended game with the Tigers.The court noted that the Royals won.
He and his father had moved down into choice seats nearthe dugout. He claimed he was struck by a hand-tossed hotdog but did not report any injury at the time. In fact, he attended the next night's game.
He sought medical attention and claimed the toss caused a detached retina. He advised the Royals of his claim eight days after the incident.
Sluggerrr had no memory of the event.
The jury found the plaintiff 100% at fault.
From the web page ofthe Missouri Supreme Court
The Florida Supreme Court has reprimanded and fined a judge for campaign violations.
The judge purchased a table at a Republican Party event, left out "for" prior to the office she sought in campaign material (which is required of non-incumbants) and accepted funds fron her spouse.
Justice Lewis in dissent decried the use of large fines as a sanction
While I recognize that this Court has the authority to impose fines for ethical violations committed by judges and judicial candidates, I continue to oppose the utilization of large fines to punish serious violations of the Code of Judicial Conduct. See In re Pando, 903 So. 2d 902, 904-05 (Fla. 2005) (Lewis, J., specially concurring); In re Kinsey, 842 So. 2d 77, 99 (Fla. 2003) (Lewis, J., concurring in part, dissenting in part). Faith and confidence in our judicial system is rooted in the ability to rely upon the integrity and independence of our judges. That confidence is severely undermined when an ethical transgression of a judge or judicial candidate is so severe that it justifies the imposition of a fine of this magnitude.
The New York Court of Appeals has upheld an order removing a surrogate's court judge from office.
The judge had presided over matters involving a very close friend (and former judge) as well as a matter in which her personal attorney was counsel.
The judge claimed that the matters were uncontested and thus no harm, no foul.
The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings. As the Commission pointed out, assuming that petitioner actually believed recusal was unnecessary under existing precedent and that there could be no appearance of impropriety or favoritism in her presiding over the matters involving these three individuals, her behavior reflects "exceedingly poor judgment and an inability to recognize impropriety."
A dissent notes the judge's "remarkable" career and would impose censure
Judge Doyle's tenure is remarkable. She served for 20 years as Chief Clerk of the Albany County Surrogate's Court. She was an Adjunct Professor of Law at Albany Law School teaching courses on trusts and estates and Surrogate Court procedure. She has been a frequent lecturer for the New York State Bar Association, Surrogate Judges Association and the Office of Court Administration. She also served as an Acting Supreme Court Justice by designation of the Office of Court Administration. The voters of Albany County elected her Surrogate twice.
Judge Doyle was first elected Surrogate in 2000 and reelected in 2010. She presided over a Court that has processed over 3,500 cases annually. The charges here are few and minor and involve only an "appearance of impropriety" and concededly involved no impropriety in fact.
The judge had previously been censured for giving misleading and evasive testimony.
The determination of the Commission on Judicial Conduct is linked here. (Mike Frisch)
A Louisiana Hearing Committee has recommended a year and a day suspension of an attorney found to have "used the internet and social media in an effort to influence ...future rulings in pending litigation."
The litigation involved a "very contentious" custody/visitation matter litigated in Louisiana and Mississippi.
...also used her Twitter account to publish multiple tweets linking audio recordings of the minor children discussing alleged sexual abuse; to publish false, misleading and inflammatory information about [two judges], and to promote [an] online petition, all of which was designed to intimidate and influence the judges' future rulings in the underlying proceedings.
Respondent knowingly if not intentionally embarked on a campaign using internet, social media and ex parte communication specifically designed to intimidate and to influence the judges' future rulings in pending litigation. Her online campaign to influence judges in pending litigation threatened the independence and integrity of the judiciary. Respondent's conduct also caused the judges concern for their personal safety.
The complaint was filed by one of the judges. The hearing committee found that the attorney was not remorseful.
It appears that the attorney is a candidate for judicial office. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice claim arising from the representation of an entity formed to acquire, own and operate a Manhatten office building.
The court agreed with the trial court that the plaintiffs could not prove proximate cause for their alleged damages and
The Supreme Court also properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging breach of fiduciary duty. Parklex alleged that the defendants breached their fiduciary duty by continuing to represent Deutsch after Deutsch and one of his affiliates asserted claims against it in the Holtkamp action. The defendants established their prima facie entitlement to judgment as a matter of law dismissing this cause of action by demonstrating that Parklex never sought to disqualify [the law firm] FZWZ from representing Deutsch and his affiliates in the Holtkamp action after FZWZ discontinued representing it in that action. Parklex's failure to seek to disqualify FZWZ from representing its adversary in the Holtkamp action constituted a waiver of its objection to FZWZ's legal representation. In opposition to this prima facie showing, Parklex failed to raise a triable issue of fact (citations omitted)
An Illinois Hearing Board majority has recommended disbarment of an attorney for misconduct in several matters.
...the Hearing Board determined Respondent had: a) improperly diverted over $4,500 donated to benefit teenagers injured in an automobile accident; b) raised frivolous issues and made false statements to the court and the ARDC in an effort to justify keeping those funds; c) attempted to represent the defendant and the victim in each of two criminal cases; d) brought unfounded contempt proceedings against the prosecutor in that matter; e) failed to return the unearned portion of a fee; f) created a false billing record and made false statements to the ARDC in an effort to justify keeping all of that fee; g) improperly represented a wife in a dissolution of marriage action, while representing her husband on criminal charges and both of them in civil litigation arising out of the husband's crimes; h) improperly revealed client confidences to police and opposing counsel; i) sent the wife threatening e-mails; j) improperly retained funds belonging to the wife; and k) improperly diverted insurance payments intended to pay for a client's medical treatment.
The attorney represented three teenage pedestrians who had been severely injured. He misappropriated the proceeds of a candy sale held on their behalf.
The attorney engaged in misconduct in a criminal matter
...we believe Respondent intentionally sought to frustrate those proceedings, by using improper tactics, such as his effort to have Assistant State's Attorney Whitfield held in contempt. From our perspective also, in seeking to represent Soto and Sackette, Respondent was not attempting to benefit either of them, but rather to obtain an acquittal for Hernandez by precluding the State from access to witnesses important to its case against Hernandez. This is not a proper tactic.
And there is this tangled web in another matter
Respondent represented Kelly in seeking a divorce from Michael, Michael in criminal proceedings in which he was charged with embezzling funds and represented Michael and his accounting firm in civil litigation arising out of the embezzlement. Respondent also represented Kelly in some aspects of the civil litigation.
The board majority found that the attorney had inflicted great harm on a number of clients and had no remorse. The attorney had prior discipline of a one-year suspension.
The dissent as to sanction would impose a three-year suspension. (Mike Frisch)
Wednesday, June 25, 2014
As a former resident of Clinton, Mississippi -- home of Mississippi College's main campus -- and more importantly as a former colleague of Wendy Brown Scott at Tulane, I wanted to congratulate her and especially MC for a great match of leadership and community-directed law school. This Miss. business blog has a good account of the announcement.
Having been supervised by Wendy as my Vice Dean during a time of much upheaval and sadness in Katrina (she and her husband Eddie, a pastor, even lost their church in the Ninth Ward), it's nice that what makes her return to the deep South is good news and not diaspora. Welcome back, and visit Nola every once in a while! [Alan Childress]
The Legal Times is reporting that the Office of Bar Counsel and Mr. Klayman submitted a proposed consent disposition that will resolve conflicts of interest charges by a court-imposed public censure.
The petition (a public record but lamentably not available on line) alleged Rule 1.9 violations against his former client Judicial Watch.
The disposition was reached prior to the start of the hearing on Monday.
Be assured that this agreement is not necessarily the end of the story. The assigned hearing committee must review and may reject the consent disposition.
If the committee favors it, a report must then be filed with the Court of Appeals. The court may accept or reject the disposition and sometimes will ask for the views of the Board on Professional Responsibility.
In sum, stay tuned if you are interested. It likely will take a couple of years to complete the process. (Mike Frisch)
Tuesday, June 24, 2014
The attorney had engaged in misconduct in several matters. The court noted that his ethical problems were attributed to health issues
Within a week after the referee filed her report in this matter, the OLR received a letter from one of Attorney B.'s health care providers. The provider stated that he was writing at the request of and with the permission of Attorney B. The letter described health issues which were then affecting Attorney B. and which had led to symptoms that included problems with memory, concentration, and the ability to make decisions. The letter further stated that due to those health issues, Attorney B. was unable at that time to respond to complaints that had been filed with the OLR. It requested that the OLR temporarily suspend all administrative proceedings involving Attorney B.
The attorney nonetheless agreed to the suspension.
The court rejected the referee's proposal that monitoring by the bar's assistance program be a requirement of reinstatement
...we do not think it necessary to require Attorney B. to submit to an extended monitoring program administered by WisLAP. In order to ensure that Attorney B.'s health will be in a sufficient condition to allow him to resume the practice of law, however, we conclude that the reinstatement of his license to practice law in this state following his four-month suspension should be conditioned upon him obtaining a satisfactory mental health evaluation and providing that evaluation to the OLR. In order to be satisfactory, the evaluator must render an opinion, to a reasonable degree of professional certainty, that Attorney B. is presently capable of discharging the duties of a person licensed to practice law in this state. We further conclude that as an additional condition of reinstatement, Attorney B. must execute medical releases that authorize the OLR for a period of three years to review his medical and mental health records and to speak with his medical or mental health care providers. Once Attorney B. has complied with these conditions and the other conditions that are always required for reinstatement after a disciplinary suspension of less than six months, his license to practice law in this state can be reinstated.
Monday, June 23, 2014
The Florida Judicial Ethics Advisory Committee opines
May a judge who is a candidate for re-election use in the judge’s campaign literature and electronic media a picture of the judge being sworn in at the judge’s investiture by a now deceased former judge?
Regardless of whether the judge in the photograph is deceased or alive, it appears the use of this photograph could “imply” to the voting public that the judge pictured with the candidate judge previously endorsed or would have endorsed the candidate judge. It must be recognized that the audience to whom the campaign materials are directed may or may not realize the pictured judge is deceased, but this realization arguably does not change the outcome of the inquiry. For example, if the voting public knows the judge pictured with the candidate judge is deceased, the picture still potentially implies the deceased judge previously endorsed or would have endorsed the candidate judge. If the voting public does not know the judge pictured is deceased, the picture potentially implies the pictured judge endorses the candidate judge. These implications, and potential misrepresentations, are the very type of conduct addressed in Fla. JEAC Op. 10-18 and prohibited by Canon 7A(3)(e)(ii).
Therefore, given this Committee’s prior opinions prohibiting the use of photographs depicting other judges, both in campaign literature and on any website, and given candidates have an obligation under Canon 7A(3)(e)(ii) to not knowingly misrepresent a fact concerning their candidacy, and given that use of the photograph in question could imply and give to the voting public the perception of endorsement of the inquiring candidate judge by the deceased judge pictured in the photograph, the Committee believes the inquiring judge should avoid use of the photograph in question in the judge’s campaign materials and electronic media.
The Rhode Island Supreme Court has ordered a public censure of an attorney who practiced while suspended for non-payment of annual dues.
Justice Goldberg dissented
When the respondent appeared before this Court it was disclosed—apparently for the first time—that throughout the period of time she has been removed from the Master Roll of Attorneys, including now, the respondent has been employed as staff counsel in the Office of Legislative Counsel at the Rhode Island General Assembly. Upon further inquiry, this Court was advised by Disciplinary Counsel of the following:
"Whether the title is staff counsel or legal counsel, there is certainly an implication that the person holding the position is an attorney. While there is no written job description, it can be presumed that only attorneys are hired for these part-time positions. Ms. Napolitano was duly licensed when first hired at Legislative Counsel, but it is not clear that maintaining active status is a prerequisite for holding such a position."
Because this position was not disclosed to Disciplinary Counsel or the Disciplinary Board, it is my belief that further inquiry into whether the respondent’s continued employment after she was removed from the rolls is warranted. A serious question remains as to whether the respondent continued to act as an attorney while she was no longer eligible to practice law in this state, and, whether her failure to disclose this employment constitutes another violation of the disciplinary rules.
Furthermore, the fact that there is no job description for the position of legal counsel is of no moment to whether this matter should be referred back to the Disciplinary Board for further inquiry. The position of legal counsel or staff counsel clearly signifies to this Justice and the public that the respondent has been employed in the capacity of an attorney throughout these proceedings, notwithstanding that she is not authorized to do so. Consequently, I dissent.
The California State Bar Court Review Department has recommended a partially-stayed two year suspension of an attorney who had misappropriated the proceeds of a settlement of a tort action on behalf of his parents.
The attorney had assigned his interest in the settlement to a New York company (Modeso) in exchange for a $10.000 payment.
When the case settled, he failed to pay and lied to the company representative.
At trial, [the attorney] testified that he lied to Modeso because he needed the money to pay his staff. He reasoned that he could not live with himself if he laid off his employees just before Christmas. [He] claimed that he intended to pay Modeso as soon as other cases settled, but they spiraled into protracted litigation. He described his remorse: "I am ashamed that I lied the way I did. What I should have done is told Modeso about my situation and been forthright with them and let them take the course of conduct that they chose to take in response."
He must serve a minimum of six months actuual suspension under the proposed sanction.
The California Supreme Court previously had rejected a stipulated 30 day suspension in the matter. (Mike Frisch)