Tuesday, September 2, 2014

Theft From Elderly Client Draws Prison, Disbarment

A Virginia attorney has consented to disbarment in the wake of a criminal conviction.

The Washington Post reported on the offense

A Fairfax County attorney was sentenced to six years in prison Thursday for embezzling nearly $500,000 while he was entrusted to care for an elderly woman and her estate, according to the Virginia attorney general’s office.

James G. Kincheloe, Jr., 67, who lives in Fauquier County, was convicted of a single count of embezzlement in the case in Fairfax County Circuit court in July. Kincheloe entered an Alford plea, meaning he did not admit guilt but acknowledged that prosecutors had enough evidence for a conviction.

Fairfax County Judge Jane M. Roush ruled that Kincheloe will have to repay more than $483,000 to the estate of Pearl Buckley, a Fairfax City resident who died in 2009 at the age of 90. A separate civil suit by the family claimed almost $900,000 was taken from Buckley.

(Mike Frisch)

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

Fan Barred From UNC For Harassing Student Athletes

The University of North Carolina did not violate the First Amendment rights of a former student and "dedicated fan" by permanently barring him from athletic events, according to a decision of the North Carolina Court of Appeals.

The 1970 graduate served as an usher at games and acted as described below

Petitioner made sexually suggestive comments to female UNC Athletics staff members, traveled to UNC women’s soccer matches and appeared at the hotel where the players were staying and harassed the players, and alienated fans by openly criticizing players in front of their family members during the game while serving as an usher and representative of UNC Athletics. Petitioner also harassed staff members by repeatedly calling various UNC Athletics offices up to 13 times per day.

The events that led to the lifetime ban arise from an incident that occurred in December 2012 at the Women’s Soccer College Cup tournament in San Diego. Petitioner had previously attempted to communicate with several female soccer players both in person and via Facebook. At the Soccer College Cup, petitioner found out which hotel the players were staying, allegedly “because he won an autographed soccer ball and couldn’t locate the head coach’s signature on the ball.” Petitioner claims that he wanted to find the head coach so he could locate his signature on the ball. The parents of the players felt uncomfortable with petitioner ’s uninvited presence at the hotel, especially given his previous attempts to communicate with several female players. Petitioner was asked to leave, and did so.

The court concluded that the University acted appropriately to prevent harassment of its students.

Lesser sanctions had not curbed the offensive behavior. (Mike Frisch)

September 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Rocky Mountain Bye

There has been a fair amount of discussion about the ethical issues that attorneys may face in representing clients in the medical (and legal in some states) marijuana business.

Colorado leads the way and has what may be a first -- an attorney disbarred for misconduct in the representation of a medical marijuana business.

Howver, the reasons for the sanction are not on the cutting edge of client representation

Respondent presented fabricated documents and false statements to the People during a disciplinary investigation, which prevented the disciplinary system from functioning as the Colorado Supreme Court intended that it should. He produced those same documents in the GreenVisionTek litigation and testified to their authenticity at trial. Because his falsifications and misrepresentations reflect such a complete deviation from the appropriate ethical standards for members of the legal profession, the Hearing Board concludes that Respondent must be disbarred.

The attorney's client was the seller of the business. He fabricated emails to insert the suggestion that he had so advised the potential buyer.

The false emails initially were produced in response to bar investigation resulting from opposing counsel's complaint over the attorney's handling of his secrow account. The emails were then produced in civil litigation. (Mike Frisch)

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

Friday, August 29, 2014

Hello You Must Be Going

An Oklahoma attorney found to have engaged in unauthorized Colorado practice has been disbarred in Colorado.

The attorney had purchased two Colorado accounting firms in partnership with a Colorado accountant. Over a three-year period, he set up multiple law offices in Colorado and held himself out a licensed to practice out of those offices.

He applied for Colorado bar admission but abandoned the effort after failing to provide information sought in connection with the application.

Another example (there are many others) of losing a license that never was granted. (Mike Frisch)

August 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Life Without Parole For Juveniles Prohibition Given Retroactive Effect

The New Hampshire Supreme Court has held that decision of the United States Supreme Court prohibiting mandatory life sentences without the possibility of parole for juvenile offenders must be applied retroactively to persons convicted prior to the high court's decision.

The decision here applies to, among others, a defendant in the high profile Dartmouth College murder case.

Also benefitting from the court's holding is a defendant who murdered both of his parents. (Mike Frisch)

August 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Clear And Convincing Evidence Required For Revocation Of Disciplinary Probation

The standard of proof for a violation of disciplinary probation is clear and convincing evidence, according to a recent decision of the North Dakota Supreme Court.

The court found that the attorney-probationer had charged excessive fees and failed to supervise non-lawyer staff

 the billing records provided by [the attorney] reflect that she double-billed, she billed for overhead items, and she billed at the wrong hourly rate...

[She] argues her fee is reasonable even though it contains minor billing errors because, she claims, a bill containing de minimus billing errors has never resulted in discipline in North Dakota. She also argues she performed a substantial amount of legal work which was not billed and which was substantially greater than the total amount of billing errors. Despite these contentions, [her] improper billing previously discussed is sufficient to establish that her fee is unreasonable...

There is a dissent as to sanction

Upon revocation, we must determine the appropriate length of suspension. The majority does not answer this directly; instead suspending [the attorney] for 30 days in a combination of imposing new discipline and revoking the stayed suspension. I respectfully disagree with the adequacy of that action as it relates to revocation of the stayed suspension. I made plain in the 2011 proceeding that I thought a 90-day suspension was appropriate and that staying the suspension was ill-advised. See Kellington, 2011 ND 241, ¶ 19, 809 N.W.2d 298 (Crothers, J., dissenting). I continue to believe principles of graduated and proportional discipline require revocation of the stay and imposition of suspension for the full original 90 days. That is especially true when viewed in the context of this disciplinary proceeding, which is [her] eighth since 1996. See id. at ¶ 16 (Crothers, J., dissenting).

(Mike Frisch)

August 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Colbert Report

An attorney convicted of a tax offense has been suspended for two years by the New York Appellate Division for the Second Judicial Department.

The court noted

In determining the appropriate measure of discipline to impose, the respondent asks that the Court consider the following mitigating factors: his excellent reputation—both personally and professionally—for honesty, integrity, and conscientious adherence to standards of professional ethics; the aberrational nature of his misconduct; his full and complete acceptance of responsibility for his misconduct; his genuine remorse and contrition; his prompt and full restitution to the Internal Revenue Service; the unrelated nature of the misconduct to the practice of law; the lack of harm to any client; his two decades of practice with an unblemished disciplinary record; the price he has already paid professionally (leaving a law partnership he helped to create); time already spent under interim suspension; his community and volunteer activities; his devotion to his family; and the crucial role the respondent plays in the ongoing psychological rehabilitation of his son.

Notwithstanding the aforementioned mitigating factors, the respondent knowingly filed false returns for several years, taking deductions and reporting losses to which he was not entitled, and thereafter engaged in conduct to cover up his criminal conduct. The respondent earned substantial income during the years in question, and when audited, could easily have paid the back taxes, penalties, and interest, but chose instead to lie to the Internal Revenue Service, engaging in deceitful and obstructive conduct. He conceded that he had no justification for his misconduct, other than the fact that he had chosen a lifestyle above his means.

The court gave credit for time served on interim suspension for the conviction. (Mike Frisch)

August 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Eight Ball, Disbarred Pocket

The Maryland Court of Appeals has disbarred an attorney well-known for his television advertising.

Danny Jacobs of The Daily Record had the story of the bar proceedings.

If you’re a Baltimore native of a certain age, you might recognize the ball and pool table pictured above.

Give up? That’s the “legal rights eight ball” that opens a commercial featuring personal injury lawyer Neil Lewis, who says in the spot he does not want you to get stuck behind it.

I have never met Neil Lewis but I have not forgotten that commercial. Which is why, on Thursday, when I saw a lawsuit filed in Baltimore City Circuit Court against Neil Lewis, my first thought was, “The Lewis Law Line?”

I watched that commercial a few times Thursday as I was writing about the Attorney Grievance Commission seeking to halt Lewis from practicing law.

...The juxtaposition between the AGC’s allegations and Lewis’ commercial is jarring. Lewis says he has recovered “millions of dollars” in damages for his clients; the AGC alleges Lewis deposited settlement checks on behalf of clients and used the money for unauthorized purposes. Lewis says, “I receive no fee, nor is there any cost to you unless we win”; the AGC counters some of Lewis’ clients were hit with collection lawsuits from medical services providers that Lewis was supposed to pay with money from a settlement or verdict.

I’ll keep tabs on the city lawsuit and AGC disciplinary petitions as they move forward.

In the meantime, one aspect of my story left me wondering. A hearing judge wrote in her findings that Lewis had approximately 800 open files in the year he was being investigated. To any personal injury lawyers out there: Is that a lot of files for a lawyer to have open at once?

The disbarment was based on a joint consent petition filed by the attorney and the Attorney Grievance Commision. (Mike Frisch)

August 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

That's What Makes A Horse Race

The Illinois Administrator has filed a complaint alleging that a Kentucky lawyer engaged in unauthorized practice of law in connection with various horse-related matters

On October 7, 2003, Respondent was admitted to practice law in Kentucky. On September 30, 2009, she registered for non-practice exemption status with that State, wherein she would remain in good standing as a member of that bar without complying with any of the jurisdiction’s continuing legal education requirements, but she would not be permitted to practice law in Kentucky.

Between at least July 6, 2013, and April 13, 2014, Respondent represented four different clients in steward’s inquiries relating to allegations of misconduct by horse racing owners and trainers conducted by the Illinois Racing Board ("Board") pursuant to Illinois Horse Racing Act of 1975, 230 ILCS 5/31.

Between at least July 6, 2013, and April 13, 2014, in the following four matters, Respondent appeared for proceedings held by stewards on behalf of owners or trainers whose conduct was the subject of inquiries...

Between at least September 30, 2013, and February 19, 2014, Respondent represented Stevanna E. Turner ("Turner") in a matter before the United States Trotting Association ("USTA") relating to allegations of a misuse of banned substance in a horse owned by Turner during a horse racing event at the Edgar County fair.

On February 19, 2014, USTA Board of Review held a hearing relating to an appeal by Turner regarding the ruling that Turner’s horse had tested positive for a banned substance. Respondent appeared at the hearing as Turner’s counsel.

During the hearing...Respondent was identified by various individuals, including the chair of the USTA Board of Review, at various times as "counsel for defendants", "appellants’ counsel", "defense counsel", "attorney", and "counsel." At no time did Respondent deny or correct the descriptions of her as counsel or attorney.

By failing to correct other individuals’ description of her at counsel or attorney, Respondent misled the USTA Board of Review. Respondent intentionally led the USTA Board of Review to believe that she was authorized to practice law in Illinois, when she was not.

During the hearing...while arguing the case on behalf of Turner, Respondent made legal arguments regarding rules of the Illinois Department of Agriculture; USTA rules; the jurisdiction of the USTA; and the integrity of a test sample of the drug purportedly administered to Turner’s horse.

The complaint further alleges failure to cooperate in the bar's investigation.  (Mike Frisch)

August 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not For Adults Only: "Dignity, Always Dignity"

The South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that, with dignity, a judicial candidate can advertise in a movie theater.

The opinion relies on the Merriam Webster dictionary definition of "dignity."

Warning: it would not comport with the dignity standard to advertise for a judicial campaign in an adult movie theater.

Also, dignity may be affected by the particular movie that is being shown when the ad runs.

I welcome reader suggestions as to movies that may not satisfy the dignity standard.

For instance, how about The Verdict, where the judge clearly favors the big law firm throughout the litigation?

And what if the candidate mistakenly thinks that "Deep Throat" is a movie about the Watergate investigation?

The title post quote (which many other than my friend Paul Burgoyne may not recognize) comes from here. (Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (3) | TrackBack (0)

Departing Associate Retains Contingent Fees For Ongoing Cases

In a fee dispute between an associate attorney and his former law firm over contingent fees, the Indiana Court of Appeals held that the associate was not unjustly by retaining the full fees generated by the cases.

The court majority relied on four actors

the clients chose to continue with the departing associate, there was no agreement between the firm and associate ("sophisticated parties") as to the consequences of his departure, there were no covenenants not to competeor provisions for file ownership, and the firm was well-compensated for the associate's work.

The majority rejected the trial court's suggestion that the firm could sue the clients.

A dissent by Justice Crone would remand to award the firm fees based on quantum meruit

I respectfully dissent. While it may be true that C&M was "very well compensated" for Daly’s time while he was a salaried associate at the firm, that compensation is simply irrelevant to C&M’s quantum meruit claim for the 1000-plus hours that C&M’s attorneys contributed to the twenty-four cases that Daly took with him to Golitko & Daly.

(Mike Frisch)

August 27, 2014 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

A Well-Armed Judge

The Ohio Supreme Court entered an order disqualifying a judge from sitting in light of a recent felony indictment.

WKYC.com reported on the charges

Mason, 46, of Cleveland, who is also a former Democratic member of the Ohio Senate and represented the 25th District from 2007 to 2008, is accused of attacking his wife Aisha Mason just after noon Aug. 2 while they were driving in their car with their two children on Van Aken Boulevard.

Court documents reflect that Mason hit his wife with his fists, slammed her head against the dashboard and bit her.

They have been married since 2005 and separated this past March.

In a 9-1-1 call, his wife told dispatchers he threw her out of the car, beat her and then drove off with the children.

And from Raw Story comes the results of a search of the judge's home

About 2,300 live rounds of various calibers
- Nearly 500 shotgun slugs
- A Mossberg 12-gauge shotgun
- A Winchester shotgun
- A 50-shell shotgun belt
- A FNH P90 semi-automatic rifle still in the box
- A JLD Enterprises Inc. PTR-91 semi-automatic rifle with a scope
- A Smith & Wesson handgun
- A Springfield Armory .40 caliber-handgun
- A sword
- Four canisters of smoke grenades
- A KDH bulletproof vest
- A Jaguar knife

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Reprimand For Drunk Driving Judge

The Ohio Supreme Court web page reports

The Ohio Supreme Court has publicly reprimanded Peter J. Corrigan, a judge for the Cuyahoga County Court of Common Pleas, following his convictions for operating a vehicle under the influence of alcohol and impeding the roadway.

In a unanimous decision announced today, the court adopted an agreement between Corrigan and the Ohio State Bar Association, which filed the charges alleging that he violated a judicial conduct rule.

In December 2012, the judge was found slumped over the wheel of his car in an intersection. While his foot was on the brake, his car was still in the drive position. Following his arrest, Corrigan pled no contest to the charges.

The court’s per curiam opinion noted that Corrigan was sentenced to three days in jail or participation in a driver-intervention program and received a one-year driver’s license suspension and a one-year period of community control. He also paid a fine and court costs.

Based on these penalties and other mitigating factors, the absence of any aggravating circumstances, and other cases involving similar offenses, the court agreed that a public reprimand was appropriate for Corrigan.

2013-1960. Ohio State Bar Assn. v. Corrigan, Slip Opinion No. 2014-Ohio-3678.

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Judges: The Next Generation

A recent opinion from the Florida Judicial Ethics Advisory Committee

May a sitting judge, who is not up for election in the current cycle, and  whose adult child is running for an open judicial position, attend the adult  child’s post-election gathering after all polls close in the relevant voting  area?

ANSWER: Yes.

FACTS

The adult child  of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the  adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance  of influencing potential voters, the judge would not attend the gathering until  all relevant polls are closed. The  inquiring judge adds that the post-election gathering will be comprised of  people who previously knew the judge as the candidate’s parent.

The majority's rationale

The intent of  Canon 7 is to separate judges and judicial candidates from political activity,  including partisan activities and, more relevant to the present inquiry,  endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon  7A(1)(b) quite specifically states that a judge shall not “publicly endorse or  publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not  engage in any political activity except (i) as authorized under any other  Section of this Code, (ii) on behalf of measures to improve the law, the legal  system or the administration of justice, or (iii) as expressly authorized by  law.” Accordingly, the dispositive  question is whether the inquiring judge’s proposed conduct constitutes a public  endorsement for purposes of Canon 7.

The majority  view is that it does not but, as noted, their position has taken into account  four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is  intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance  could influence any voters given that the act of voting was accomplished hours  before the event commenced. A different  conclusion would have been drawn if the inquiring judge’s child were in a  multi-candidate race with the prospect of a runoff.

Second, the  majority’s determination is limited to judicial races only, in which  partisanship is not a factor and the candidates themselves do not make  endorsements. In other words, this will  not be a combination of celebration and “rallying the troops” such as may be  experienced in partisan or issue-oriented politics. A post-election gathering can easily become a  political event based on what occurs, which will not be known until the event  is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when  attending these types of events, since the purpose is for the citizens to voice  their opinions on varying issues and their expectation of receiving a pledge or  commitment on particular issues from the public figures and/or elected  officials.” See also Fla. JEAC Op. 98-17 (judicial  candidates should be cautious that their presence, remarks, and/or actions are  not construed by others to be political or partisan).

Third, it is  important that the inquiring judge not be up for election or retention during  the same cycle as the judge’s child, lest the event be perceived as  participation in a slate of candidates rather than an event limited to honoring  a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and  the judge’s child had won their respective races, but for purposes of this  opinion we limit ourselves to the actual facts.

Fourth and  finally, the majority have placed considerable weight on the fact the candidate  is the inquiring judge’s child. It is  difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the  judge cannot personally say so during the campaign.

The minority view is expressed in the opinion. (Mike Frisch)

August 25, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

New Trial For Pro Hac Violation

The Mississippi Supreme Court has reversed a criminal conviction because defense counsel and the court failed to adhere to the requirements for admission to practice by a foreign attorney.

Counsel admitted pro hac must have local counsel present for all proceedings

Our enforcement of Rule 46 goes not only toward protecting clients’ rights, but toward enforcing both society’s and the profession’s respect for this Court and the processes that have been established for seeking redress. Both principles are weakened if a finding of waiver is as simple as a defendant’s awareness that he is represented by an outside attorney, where the trial judge, the State, and the defendant’s attorney all represented that the attorney was in compliance with the rules governing foreign attorney admission. The presence of local counsel may cover a multitude of pro hoc vice sins when evaluating prejudice to a defendant, but this Court will take very seriously pro hoc vice violations that involve the absence of local counsel.

A concurring/dissenting opinion would not reverse the conviction. (Mike Frisch)

August 25, 2014 | Permalink | Comments (0) | TrackBack (0)

A Plethora Of Crimes

The Fen-phen litigation (and other serious criminal misconduct) has led to another disbarment.

The Kentucky Supreme Court accepted the consent disbarment of a 34 year old attorney convicted of mail fraud, wire fraud and other offenses

Count I charged that Movant committed mail fraud in connection with a lawsuit brought in the wake of the well-known, and notorious, Fen-phen litigation to recover funds wrongfully diverted from the Fen-phen plaintiffs. Movant devised a scheme to divert to his own personal accounts, S 14,963.05 that his firm collected for the Fen-phen clients.

Count III of the information charged Movant with committing wire fraud by devising a scheme by which he fraudulently gained access under false pretenses to a bank account of his associate, Angela Ford, and stole money from her. Movant used that money to cover amounts he had stolen from Clients, and which he had diverted to his personal use, including his role in a conspiracy to illegally distribute synthetic marijuana as set out in Count 5.

The attorney also ackowledged mail fraud in an estate matter, conspiracy to distribute synthetic marijuana, tax offenses and obstruction of justice. (Mike Frisch)

August 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2014

New Trial For Prosecutorial Misconduct

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has ordered a new trial for Noura Jackson, a Shelby County woman convicted of the second degree murder of her mother, Jennifer Jackson, because the Court found there were constitutional errors made in the course of the proceedings.

The Court explained that during the 2009 trial, the lead prosecutor impermissibly commented upon the defendant’s exercise of her state and federal constitutional right to remain silent and not testify at trial. In addition, the Court said the prosecutor violated the defendant’s right to due process by failing to turn over to the defense a statement a key witness gave to law enforcement officers investigating the murder. The Court concluded that the State had failed to establish that these constitutional errors were harmless beyond a reasonable doubt.

Jennifer Jackson was stabbed to death on June 5, 2005, in the bedroom of the home she shared with the defendant. Around 5:00 a.m. that day, the defendant reported to neighbors and the police that she had discovered her mother’s body. After the defendant gave police conflicting statements about her whereabouts at the time of the murder and about how she sustained a cut to her hand, the police began investigating the defendant.

The defendant was charged with first degree murder, but she never admitted involvement in the crime, and no DNA evidence or scientific evidence implicated her. The prosecution’s case was based on circumstantial evidence alone.

The jury acquitted the defendant of first degree murder but convicted her of second degree murder. The defendant appealed. Although the Court of Criminal Appeals affirmed the conviction, the three judges on the panel did not agree on the rationale for their decision. One judge found no constitutional error. The other two judges found the lead prosecutor had violated the defendant’s constitutional right to remain silent but concluded that the error did not prejudice the defendant.

The Supreme Court concluded that the prosecution had violated two of the defendant’s constitutional rights: her right to remain silent and not testify at trial, and her right to due process of law. The Court explained that when constitutional errors occur in criminal trials, a new trial is required unless the State establishes that the error was harmless beyond a reasonable doubt. The Supreme Court concluded that the State had failed to make this showing, and as a result, the defendant is entitled to a new trial.

The Supreme Court expressed concern that the prosecutor had violated the more than 100-year-old legal rule prohibiting Tennessee prosecutors from commenting on a defendant’s exercise of the right to remain silent. The Supreme Court reiterated a statement first made in 1984, which is that“the subject of a defendant’s right not to testify should be considered off limits to any conscientious prosecutor.” The Supreme Court also cautioned prosecutors in the Thirtieth Judicial District to comply fully in the future with the 50-year-old legal rule requiring disclosure of material evidence to the defense.

Read the unanimous opinion in State v. Noura Jackson, authored by Justice Cornelia A. Clark.

(Mike Frisch)

August 23, 2014 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

Suspension For Multiple Client Settlement Violations

 The Oregon Supreme Court imposed a 90-day suspension for misconduct that

arose as a result of settlements that the accused had brokered for a group of clients—all sexual abuse victims—in civil actions brought against the Portland Archdiocese, the State of Oregon, and Father Michael Sprauer.

The court

we first observe that, when the accused began his representation of the Sprauer plaintiffs, he recognized that, although their interests did not presently conflict, they could conflict at some point in the future. He subsequently wrote letters to each of his clients outlining the advantages and disadvantages of joint representation, advised them to obtain independent legal advice, and obtained their consent to proceed with joint representation. As noted, the JRAs that the plaintiffs signed explained that the accused would endeavor to negotiate each client’s claims individually and that he would have no role in any allocation decision.

When the accused began negotiations with the Archdiocese, he proceeded as agreed. The accused conferred with his clients individually and helped each decide on an acceptable individual settlement offer. As the Bar correctly recognizes, when the accused added those amounts together and offered to settle with the Archdiocese for the resulting total, the accused did not violate any rule of professional conduct. However, when the Archdiocese offered to settle for a figure that was nearly twice that total, a conflict arose. Each plaintiff had an interest in obtaining as great a portion of the surplus settlement as he could. Under those circumstances, the accused was ethically prohibited from deciding how to allocate the sum offered, and the accused does not contend otherwise.

When the conflict arose, the attorney failed to secure the required informed written consent and

An additional problem for the accused—and, in our view, an even more significant one—is evident in his division of the proceeds of the state settlement. Before negotiating the state settlement, the accused had informed his clients that, “[i]f all of you agreed to settle your cases on the same percentage basis as we did in the past, then I do not have a conflict.” However, when the accused accepted the state’s offer to settle the claims of all the Sprauer plaintiffs for a $1.05 million lump sum, he did not, in fact, distribute those funds on that basis. In his brief, the accused does not address that failure nor allude, as he did at the trial panel hearing, to possible “mathematical errors.” From the letters that the accused sent to the Bar, it appears that the accused decided, after agreeing to settle with the state, which client should receive what portion of the state settlement. The accused’s method of allocation may have been exceedingly fair, but each dollar that the accused allocated to one plaintiff was a dollar that he did not allocate to another—an allocation decision that, as he recognized in his JRAs, was one  in which he was to have no role. The accused’s decision to allocate the sum of $7,500 to New also was problematic for the same reason. The distribution to New may have been fair—perhaps more than fair, given New’s criminal history and the accused’s willingness to waive attorney fees and costs—but by allocating $7,500 to New, the accused deprived other client of those funds.

The court rejected charges of misrepresentations to the clients.

As to sanction

What we do find is that the accused’s substantial experience in the law had made him aware of the ethical problems that could arise if he were to participate in the allocation of a lump sum settlement offer; yet—particularly with respect to the state settlement—that is exactly what the accused did. In addition, the accused did not obtain the informed consent required by the rules of professional conduct at issue here, and, as a result, he exposed his clients to a risk of injury. Those are significant violations that, in light of the accused’s disciplinary history, warrant more than a 30-day suspension. We conclude that a 90-day suspension is appropriate.

The Portland Tribune reported on the case and noted

Gatti has been disciplined by the Supreme Court before. 

In 2000, the justices issued a public reprimand after he posed as a chiropractor while he attempted to obtain information about medical reviews by an insurance company that denied injury claims of workers. 

The court held that he violated a State Bar rule against deceit, but Gatti said he used deceit as an investigative tool.

Gatti claimed victory when the high court modified the rule in 2002, after federal prosecutors said it would hamper their investigative efforts when they directed others to engage in deceit.

A good teaching example of the dangers of settling claims for multiple clients. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wrong Kind Of Pretrial Diversion

The Nebraska Supreme Court imposed an 18-month suspension of a former county attorney convicted of misconduct in office.

The same court had previously reversed the criminal conviction

As the Keith County Attorney, John Blake Edwards established a pretrial diversion program.   After an audit by Nebraska's state auditor and an investigation by the Nebraska State Patrol, Edwards was charged with three counts of theft by unlawful taking for checks written from diversion program funds.   Edwards was acquitted by a jury of two of the theft counts and convicted of the third, which was based on a check he wrote on a diversion program account to a local trapshooting team (trap team).   He was sentenced to probation.   Edwards appeals.   We find plain error in the jury instructions, and therefore, we reverse, and remand for a new trial.

The attorney pleaded guilty to a single count of official misconduct after the remand.

Because the attorney was suspended on an interim basis, he has fully served the suspension. The effect of the decision here is to automatically reinstate him to practice. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Read The Text Message Later

A California attorney convicted of a property damage misdemeanor hit and run has been publicly reproved by the State Bar Court.

The facts

 On the evening of July 9, 2009, [the attorney] attended a reception, drank a beer, and later argued with his girlfriend. While driving from the reception on a section of the Pacific Coast Highway in Marina Del Rey, he took his eyes off the road to read a text message. As a result, he hit the right rear bumper of the car in front of him, which was stopped to allow several pedestrians to cross the street in a well-marked crosswalk. [He] did not stop, even though he felt the collision and noticed damage to his right side-view mirror. Instead, as observed by police in the vicinity, [he] drove away at high speed, making three turns on narrow residential streets before the officers who pursued him could stop him.

The attorney, who was driving a silver BMW, testified that he failed to stop because he could not find a parking space. He "vacillated" on this contention under cross examination. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)