Wednesday, April 8, 2015

Employment Of Disabled Client Leads To Conviction And Stayed Suspension

A stayed suspension of six months was imposed by the Ohio Supreme Court as a result of an attorney's misdemeanor conviction for complicity in workers compensation fraud.

Grubb represented Tracie Lytle in workers’ compensation matters from 2004 through 2010. Between February and July 2007, Lytle collected temporary-total-disability benefits, as one of her doctors determined that she was unable to work. During that six-month period, however, Grubb also provided funds to Lytle. For example, Grubb reimbursed Lytle for mileage to attend court hearings and doctor’s appointments and to take Grubb’s mother out to lunch. Additionally, Grubb assisted Lytle in refunding overpayments from the Bureau of Workers’ Compensation. Grubb testified that during this time, Lytle did not have enough money to attend hearings or even to pay for food.

At some point thereafter, the bureau received an allegation that Grubb was improperly employing Lytle while she was collecting temporary-total disability benefits, and the bureau commenced an investigation. Prior to being charged with any crime, Grubb entered into a plea agreement with the Ohio Attorney General’s office, in which she agreed to plead guilty to complicity to commit workers’ compensation fraud, a first-degree misdemeanor. She also paid the bureau $7,709.92 in restitution, which represented the amount of benefits that Lytle had collected during the six-month period at issue, and an additional $6,731.55 for bureau investigation costs. On January 28, 2013, Grubb was charged with the misdemeanor count in the Franklin County Municipal Court. She pled guilty and was convicted on that same day. The court imposed a $500 fine.

The court considered a number of mitigating factors. The attorney must commit no further ethics violations during the stayed period of suspension. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015


The New York Appellate Division for the First Judicial Department reversed an order requiring an insurer to defend a law firm

This declaratory judgment action involves the issue of whether certain transactions among the plaintiffs and nominal defendant Jane Kurtin fall within the "insured's status" and "business enterprise" exclusions to coverage in plaintiffs lawyers' professional liability insurance policy (policy) issued by defendant American Guarantee and Liability Insurance Company (AGLIC). Broadly stated, these exclusions apply where a lawyer is sued for malpractice and the claim also arises in whole or in part from the lawyer's status as the manager of a business enterprise in which the lawyer has a controlling interest.

Kurtin was a client of plaintiff Lee & Amtzis, LLP (law firm). She commenced an action in the Superior Court of New Jersey against the law firm, both partners individually, and Astoria Station, LLP (Kurtin v R. Randy Lee, Esq., et al., Super Ct, Somerset County, docket No. SOM-L-1098-10) (New Jersey action). In the New Jersey action, Kurtin asserted claims for breach of contract, non-payment of two promissory notes which she held and were made, respectively, in 2006 and 2010, and unjust enrichment based upon the non-payment of those notes. Kurtin also asserted claims for legal malpractice/negligence against the law firm and each of its named partners. In connection with her malpractice/negligence claims, Kurtin alleged that when she entered into these loans, Lee was not only the "managing member" of Astoria Station, he was also a practicing attorney and partner of the law firm, which had the same address as Astoria Station. Kurtin claimed that the attorneys had induced her to proceed with certain financial transactions in which they had a financial interest; they failed to recommend that she obtain independent legal counsel; they had allowed their legal services to her to be influenced by their own business ventures outside the practice of law; and the attorneys knew their interests and Kurtin's interests were adverse.

The court

Here, we have a well developed record showing that plaintiffs' activities on Kurtin's behalf are of a hybrid nature and, therefore, excluded from coverage...

 Since Lee was a partner in the law firm, by assuming dual roles of providing legal advice to a client, while simultaneously pursuing his own business interests, Lee placed himself, his law partner and the law firm firmly within the exclusions in the professional policy plaintiffs seek protection under. Consequently, under the Business Enterprise Exclusion, it is immaterial that Amtzis did not have an interest in Astoria Station; AGLIC still has no duty to provide him with a defense in the New Jersey action.

(Mike Frisch)


April 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Proceed, Governor

A person nominated by the Governor for a judgeship does not have a right to assume the bench if the appointment process is not completed, according to a decision of the full Massachusetts Supreme Judicial Court.

The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.

The court

The Governor's appointment of an individual to judicial office becomes effective "when the last act to be done by the [Governor is] performed." Marbury v. Madison, supra. See 1 Op. Attorney Gen. 140, 141 (1894). At a minimum, this requires that the Governor communicate unequivocally his determination, informed by the Council's advice and consent, to exercise the power of appointment. Rep. A.G., Pub. Doc. 12, at 96 (1972) ("Appointment occurs, of course, when the Council has given its advice and consent to the nomination and the judicial commission has been issued" [emphasis added]). The appointment, like the nomination, is highly discretionary, and it is for the Governor and the Governor alone to decide. There is nothing ministerial about the Governor's decisions to nominate and appoint. Contrast Rep. A.G., Pub. Doc. 12, at 107 (1984) (describing Secretary's role in judicial appointment process; stating that Secretary "functions in a . . . ministerial manner with respect to gubernatorial appointments"). As stated in Opinion of the Justices, 190 Mass. at 619-620, when the Governor has the power to act, "[t]he act, first of all, and afterwards for all time, is the act of the Governor."

There is nothing in the record before us to suggest that the Governor took action to appoint McCarthy to the vacant judgeship at any time. To the contrary, the evidence is that the Governor did not proceed with an appointment in any fashion after the vote of the Council on McCarthy's first nomination on September 26, 2012, or after Manning's letter on October 17. Instead, he resubmitted the nomination to the Council. Likewise, after the Council's vote on the second nomination, the Governor indicated that he considered the matter closed. Thus, even if we were to assume for the sake of discussion, as the plaintiffs argue, that the votes of the councillors at the September 26 meeting, supplemented with Manning's purported vote by letter to the Governor on October 17, combined to constitute the requisite "advice and consent" and the required number of votes in favor of McCarthy's nomination, we conclude nevertheless that McCarthy did not validly obtain a judgeship.

The full court agreed with a single justice that mandamus and other relief was not available. (Mike Frisch)

April 7, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Discovery Issues Require Remand

The Ohio Supreme Court has remanded a disciplinary case that involves allegations of billing misconduct.

The allegations involve five billings to three nursing home clients.

Relator alleged that while Smith was employed by a law firm, Weston Hurd, he billed as his own for work that was performed by another attorney at the firm, billed time in excess of the time actually spent on a particular task, billed for work that was never performed by anyone at the firm, and billed time to multiple cases and clients for identical services and time on the same day. A probable-cause panel of the Board of Commissioners on Grievances and Discipline certified relator’s complaint to the full board.

Smith answered the complaint. As his primary affirmative defense, he alleged that his clients had requested and approved generic billing narratives that could be assigned to one of seven litigation phases and deducted from a preapproved budget without disclosing the specific action that he took on his client’s behalf. He claimed that this billing method was necessary to protect his clients against punitive-damages awards that might arise from violations of the Ohio Nursing Home Patients Bill of Rights, codified at R.C. 3721.10 et seq. He further alleged that he was unable to fully defend himself against relator’s complaint because much of the evidence he needed to do so was protected by attorney-client privilege, which the affected clients had not fully waived, and also because his former firm had prevented him from accessing documentary evidence essential to his defense.

The court expressed concern about discovery issues

Given the nature of Smith’s longstanding and consistent defense of the charges against him, we are alarmed by the conspicuous absence of documentary or testimonial evidence regarding the actual content of the online databases with respect to the five cases at issue—evidence that in all probability would serve to either confirm or discredit Smith’s claims. While the record shows that the affected clients or their third-party administrators used online databases to transmit and store pleadings, correspondence, billing, and other documents related to the clients’ underlying actions, the testimony of the witnesses with access to those databases suggests only that the content of those databases should, theoretically, mirror the content of Weston Hurd’s hard file. Therefore, in the interest of justice, we remand this cause for further discovery and hearing.

(Mike Frisch)

April 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

It's a Puzzlement: The First Hiccup

An attorney who was suspended in 2012 for his failure to comply with a fee arbitration determination failed to file the affidavit required of suspended attorneys and did not respond to the ensuing investigation.

As a result, he was censured by the New Jersey Supreme Court.

The Disciplinary Review Board was puzzled

Respondent’s lack of attention to his obligation to file the R~ 1:20-20 affidavit is somewhat puzzling, considering that he has been practicing for twenty-five years, without so much as a disciplinary "hiccup." Not only did he not file the necessary affidavit, but he defaulted in this matter. Like attorneys Terrell, Saint-Ceyr, and Sirkin, who had no history of final discipline, failed to file the required affidavits, following a temporary suspension, and then defaulted in the disciplinary matter that ensued, respondent, too, should receive a censure. We so determine.

The case is In re Robert Vreeland and can be found at this link. (Mike Frisch)

April 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 6, 2015

Contract Of Adhesion

An attorney disciplined in Indiana for a contractual provision that limited an associate's post-employment ability to practice was reprimanded as reciprocal discipline by the Kentucky Supreme Court.

The misconduct at issue in this disciplinary action arises from an employment contract Respondent required his new associate attorney to sign as a condition of his hiring. The contract included a "Separation Agreement" (the "Agreement"), which specified that in the event the employment relationship ended, the associate was prohibited from contacting, notifying, or soliciting the clients he obtained while working at Respondent's law firm. Only Respondent had the luxury of notifying the clients of the associate's departure. The Agreement further included a fee arrangement which highly deterred the associate from continuing to represent those clients.

The associate filed the bar complaint in Indiana.

The court rejected private discipline. (Mike Frisch)

April 6, 2015 in Bar Discipline & Process, Law Firms | Permalink | Comments (0) | TrackBack (0)

Appearence Of Impropriety Insufficient To Disqualify Law Firm

The Kentucky Supreme Court has held that the appearance of impropriety is a legally insufficient basis to disqualify a law firm in a shareholder-derivative action.

The Court concludes that review of the disqualification order in this case is available through the special-cases exception for writs. Further, this Court concludes the trial court applied a disqualification standard that is no longer appropriate under the Rules of Professional Conduct, and that the trial court's factual findings are insufficient to allow disqualification under the proper standard of a showing of actual conflict. For those reasons, a writ of prohibition barring enforcement of the trial court's order is appropriate at this time, even though the issue of disqualification may be revisited in the trial court. The Court of Appeals' decision to deny the writ is therefore reversed, and this matter is remanded to that court to issue the writ.

As noted, disqualification may be appropriate later

 This is not to say, however, that Plante cannot show a sufficient conflict to have ]law firm] MGM disqualified once this case returns to the trial court. It is possible that by advising the board, of which Plante was a member, about the Bioniche litigation, MGM was representing Plante. Since the allegedly improper resolution of the Bioniche litigation is part of the underlying derivative suit, among other things, it is possible that MGM may have an actual conflict under Rule of Professional Conduct 1.9, which governs duties to former clients. There has also been some suggestion that MGM now represents the entire board, including Plante, in the derivative action, although only the Appellants appear to have been named as defendants. If MGM is representing the entire board, that could give rise to a conflict with an existing client under Rule 1.7.

(Mike Frisch)

April 6, 2015 in Law Firms | Permalink | Comments (0) | TrackBack (0)

His Cash Is His Bond

A New York Town Court Justice (who is not an attorney) was admonished for his handling of cash put up as a bond

After conducting a late-night arraignment in Doe, a case that was returnable in a neighboring town court, respondent did not deposit the $500 cash bail into his court account, as required by the relevant rules. Instead, he personally delivered the money later that day, along with the court records of the matter, to the Town of Wayne municipal building, leaving the envelope marked "BAIL $500.00 CASH" with an unidentified individual. Though it is unclear in the record before us whether the funds were received or deposited by the Wayne Town Court, respondent's own conduct  inconsistent with his duty to safeguard court monies entrusted to his care. His departure from the mandated procedures placed the funds at risk and gave rise to questions and uncertainty as to how the money was handled all of which could have been avoided if he had deposited the bail into his court account as required. And at the very least, it was ill-advised to leave a cash-filled envelope with an unidentified person at the Wayne municipal building. Respondent's failure to keep any records of the case, or to record the arraignment, was also a violation of the procedural requirements and compounds the appearance of impropriety.

The Commission on Judicial Conduct imposed the sanction. (Mike Frisch)

April 6, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Speaker Of The Big House

A former Rhode Island Speaker of the House has consented to disbarment.

The Providence Journal reported

It's been a bad week within an already bad year for former Rhode Island House Speaker Gordon D. Fox.

A day after Rhode Island College rescinded the honorary degree it had bestowed on Fox in 2010, the Rhode Island Supreme Court Thursday disbarred the ex-Providence lawmaker as a result of his guilty plea to federal corruption charges.
According to an order issued by the Supreme Court, Fox consented to disbarment in an affidavit filed with the court's Disciplinary Board March 16, two weeks after admitting to accepting bribes and using campaign funds for personal expenses as part of his plea agreement with prosecutors.
The New York Times had coverage of the criminal case.
(Mike Frisch)

April 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Dormant Stage Detected By Random Audit

The New Jersey Supreme Court has reprimanded an attorney as a result of irregularities detected in a random audit of his trust account.

As found by the Disciplinary Review Board

Respondent admittedly left small balances in the law firm trust account, representing undisbursed settlement proceeds from eighty old, closed personal injury matters. The OAE detected these balances during a random audit.

The funds were held on account either for clients who never claimed their share of settlement proceeds or for third party medical providers whose bills respondent intended to negotiate downward for his clients. Of the eighty cases, the OAE highlighted five client matters.

Respondent admitted that the balances existed, that they had remained in the trust account for  claimed that problems locating "transient" clients and clients with "immigration status" issues led  locate clients, and that some of them had surfaced years later looking for their funds, he produced no evidence that the law firm had made continuing efforts to find clients after the first few years that their matters had been closed. In three of the five matters highlighted at the DEC hearing, respondent’s office easily located the clients and returned their funds, after the OAE directed respondent to make such an effort. Those funds lay dormant in respondent’s trust account for fourteen years in Thomas; thirteen years in Hunter; and seven years in Jimenez. Respondent explained that he left the balances in the trust account for the benefit of his clients, claiming that many times, the funds at issue were escrowed pending negotiations instances, the funds belonged to clients who could not be located. Respondent’s office tried to locate clients for the first few years after their matters settled, but did nothing thereafter. As seen above, balances languished for more than a decade in some instances.

Lamentably, New Jersey has made it harder for unsophisticated bloggers such as yours truly to link to its bar decisions.

The case is In re Agrapidis. (Mike Frisch)

April 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, April 4, 2015

Attorney Suspended For Refusing Mental Health Evaluation

From the web page of the Florida State Bar

Janice L. Jennings, P.O. Box 103, West Palm Beach, suspended for 91 days, effective immediately, and indefinitely thereafter, until she complies with the terms and conditions set forth in a Feb. 19 court order and demonstrates rehabilitation. (Admitted to practice: 1985) Jennings refused The Florida Bar’s request that she schedule a mental health evaluation with Florida Lawyers Assistance. The request came after the Bar learned of a written filing and statements in which Jennings advised the court, among other things, that her former employer had caused the implantation of a microchip in her left ear that was designed to harm and disrupt her ability to function. (Case No. SC14-1218)

The Tampa Bay Times reported on the situation in June 2014

A June 16 Times article showed that she had been telling federal judges for more than a decade that she was the victim of mind control and torture, with no apparent effect on her license to practice law...

It was during a May 16 hearing for one of those cases that Jennings told [United States District Court Judge Richard] Lazzara she believed opposing counsel John W. Campbell had tortured her by using a microchip illegally implanted in her brain.

Filings in the matter are linked here. (Mike Frisch)

April 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Three Incidents Lead To Job Loss And Reprimand

The Tallahassee Democrat reports a recent disciplinary sanction from the Florida Supreme Court

The Supreme Court reprimand of a civil litigation attorney in the Office of the General Counsel of the Florida Department of Transportation comes after three separate cases included in a Florida Bar complaint.

Adam J. Ellis was fired after he received an email from FDOT General Counsel Tom Thomas dated Tuesday, the same day the Court released a discipline report of him and 27 other Florida attorneys.

"Your services as an attorney in the Office of the General Counsel are no longer needed and you are being removed from your Selected Exempt Service position effective immediately," the email said.

The Supreme Court placed Ellis on a three-year probation after he pleaded no contest to assault and harassment charges in Oregon, according to a news release from the Florida Bar's Department of Lawyer Regulation.

When the Court reprimand was announced, the Florida Bar's website was undergoing maintenance, making the discipline documents unavailable.

Documents show Ellis reported to the Bar that in March 2010 he had been involved in a personal marital dispute that resulted in charges of assault constituting domestic violence and harassment in Portland, Oregon, which he pleaded no contest to.

Ellis was ordered to enroll in domestic violence intervention counseling, serve 48 hours of community service. Once completed, the charges were dropped by the State of Oregon, according to court records.

In his response, a filing by Ellis's attorney said he entered the no contest plea as a "'plea of convenience,' not as an admission of guilt."

"(Ellis) engaged in criminal misconduct that reflects adversely on his fitness as a member of the legal profession," the complaint states. Ellis denied having engaged in criminal conduct.

The Supreme Court reprimand is also related to a 2011 complaint against Ellis arising from an incident with an assistant state attorney in Pensacola.

While working as an assistant public defender in Pensacola, Ellis approached the woman at a Pensacola restaurant and showed her a photo shopped image of herself with an exposed genital organ outside her mouth, court records show.

He paraded around the room continuing to show the doctored photo to other attorneys as a "joke," court records say.

"Respondent engaged in conduct prejudicial to the administration of justice involving sexual harassment that adversely reflects on his fitness to practice law," the complaint states.

The assistant state attorney filed a complaint with the Florida Bar following the incident after which Ellis wrote an apology letter.

Ellis' reply indicates his "conduct falls squarely within the protected speech guarantee by the First Amendment."

Also considered in the reprimand is a March 2012 arrest and charges of disturbing the peace after a noise complaint by his Escambia County neighbor. Ellis was terminated from the public defender's office after the arrest.

An ECSO deputy made contact with Ellis, who refused to turn down the music "challenging the deputy to go ahead and give him a citation," court records show.

The deputy returned when the neighbor called again and reported the music had been turned up louder than before and Ellis was arrested.

The case was not prosecuted after Ellis entered into a deferred prosecution agreement. His reply said he was illegally arrested.

Ellis in an email said the no contest plea was contingent on entering into a diversion program in which the charges against him would be dismissed.

"I entered a plea of no contest, not a plea of guilty, and I have always maintained my innocence regarding these charges," Ellis wrote.

(Mike Frisch)

April 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

Georgia Supremes: Website Posts Not Stalking

The Georgia Supreme Court held that the subject of an internet campaign is not entitled to injunctive relief as the posts about her were not "contact" and thus not prohibited stalking

Matthew Chan has a website on which he and others publish commentary critical of copyright enforcement practices that they consider predatory. Linda Ellis is a poet, and her efforts to enforce the copyright in her poetry have drawn the ire of Chan and his fellow commentators. On his website, they have published nearly 2,000 posts about Ellis, many of which are mean-spirited, some of which are distasteful and crude, and some of which publicize information about Ellis that she would prefer not to be so public. At least one post is written in the style of an open letter to Ellis, referring to her in the second person, and threatening to publicize additional information about Ellis and her family if she continues to employ the practices of which Chan and the other commentators disapprove. It is undisputed that Chan never caused any of these posts to be delivered to Ellis or otherwise brought to her attention. But it also is undisputed that Chan anticipated that Ellis might see the commentary on his website, and he may have even intended that she see certain of the posts, including the open letter to her.

No relief was granted because

the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary— that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website. The evidence shows that Ellis visited the website herself — it appears, in fact, that she registered herself as an authorized commentator on the website — and that she had others visit the website and report back to her about the commentary published there. Generally speaking, our stalking law forbids speech only to the extent that it is directed to an unwilling listener and even if Ellis did not likewhat she heard, she cannot be fairly characterized as an unwilling listener. Ellis failed to prove that Chan “contacted” her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis.

(Mike Frisch)

April 3, 2015 in Law & Society | Permalink | Comments (0) | TrackBack (0)

CLE While Intoxicated Leads To Suspension

Virginia Lawyers Weekly has this rather remarkable story 

A lawyer accused of being intoxicated and disruptive at a Continuing Legal Education program last year has been suspended for six months and ordered to enroll in a two-year treatment and monitoring program.

Witnesses accused Reston attorney Wayne R. Hartke of sleeping and loudly snoring during the morning part of the seminar and then yelling at a video screen during the afternoon session, according to charges brought by a Virginia State Bar panel.

Hartke was led from the seminar room by another attendee, according to the ethics charges brought by a disciplinary subcommittee in September. An observer said he smelled of alcohol and had a bottle of liquor among his belongings, the subcommittee said.

In an interview with a VSB investigator, Hartke denied he had been intoxicated, the panel said.

The VSB Disciplinary Board imposed the six-month suspension at a March 27 hearing, according to a summary order from the board.

Under the board’s terms, Hartke was ordered to enroll in Lawyers Helping Lawyers for two years and comply with all of the organization’s terms and conditions. Any notice of noncompliance would result in an order to show why his license should not be suspended for an additional three years.

Hartke was reprimanded by the VSB in 2010 after settling a legal malpractice lawsuit accusing him of failing to protect the interests of individual directors of a corporate client.

Hartke was reprimanded again in 2011. Among the allegations was a 10-day Fairfax County jail sentence for contempt of court. Hartke’s blood alcohol content was measured at .127 during a court appearance, the VSB order said.

Lawyers Helping Lawyers is a 30-year-old assessment, referral, monitoring and support program helping lawyers address addiction and mental health issues.

A prior reprimand with terms is linked here. 

Thanks to Alan Kabat for sending this. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Notice Of Theft Charges: No License Revocation

The Iowa Supreme Court rejected the license revocation recommendation of its Attorney Discipline Board and suspended an intellectual property attorney for not less than six months. 

The court concluded that the attorney was not placed on proper notice of conversion charges.

The Board brought a three-count complaint against Cepican alleging various violations of the Iowa Rules of Professional Conduct involving his actions with three clients. Each count in the complaint involved a different client, and the evidence at the hearing showed Cepican caused substantial heartache and harm to each of them. In the first count, Cepican represented a client to secure a patent for an invention involving a toy. Over time, he neglected to perform certain legal services and failed to adequately communicate with the client. After the client brought a complaint against him, Cepican failed to reply to the Board on numerous occasions.

The two other counts in the complaint also involved neglect of client matters. One of the counts involved a complex scientific invention by the client. The neglect by Cepican was serious enough for the United States Patent and Trademark Office (USPTO) to issue notices of abandonment of the patent application of the client. The conduct by Cepican in this and other cases eventually led to a default judgment excluding him from practicing before the USPTO.

The notice issue

In this case, the allegations in the complaint did not provide adequate notice to Cepican that he faced a claim of misconduct in the nature of theft that would support revocation of his license. The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. Cepican admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. Thus, his conduct in failing to respond to the complaint cannot be deemed a waiver of his right to contest the allegations of theft. Under the circumstances, Cepican did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer. This defense is established by evidence the attorney had a good-faith intent to perform the work even when the attorney failed to perform enough of the work to exhaust the retainer.

The attorney had indicated that he no longer desired to practice law. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Recusal Granted With Regrets

A Delaware Master in Chancery has granted a motion to recuse her in light of the "appearance of impropriety"caused by her former association with a law firm involved in the case.

The mere involvement of [the law firm] Potter Anderson as counsel in a proceeding before me indisputably would not create the appearance of impartiality. Here, however, Mr. Greenspan seeks to amend the pleadings to add the firm and three of its attorneys as defendants and impose personal liability on them. I am confident that – as a subjective matter – I could hear this action free from bias or prejudice, even if Potter Anderson or various of its attorneys are added as defendants. I worked for the firm for approximately seven years, left on amicable terms, was not a partner, and do not have any continuing financial interest in the firm or any exposure to liability the firm may incur. Nonetheless, I have concluded that – under these circumstances – there would be an appearance of bias in presiding over a matter that could result in a finding of liability for my former firm or several attorneys with whom I closely worked while employed there.

I am aware– and deeply regret –that recusing myself from this case will impose additional work on one of my colleagues. The decision is not one I relish or make lightly. The importance, however, of maintaining both the fact and appearance of an unbiased judiciary must, in my view, take precedence. While Potter Anderson or its attorneys are – or may be – defendants, I believe there is a sufficient basis for Mr. Greenspan to question my impartiality.

When I was recused from an assigned matter at the Office of Bar Counsel, I took a comparable case from the colleague who replaced me. That cures any regrets. (Mike Frisch)

April 3, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

PS: Pay The Lien

An attorney who failed to protect the interests of a company that had loaned his client money in exchange for payment from the proceeds of a personal-injury settlement has been reprimanded by the Wisconsin Supreme Court.

The client was the attorney's first cousin

In July 2006, [client/cousin] M.F. sought financial advice from Attorney Mitz.  Attorney Mitz arranged for two loans totaling $2,500 each from Attorney Mitz's father and uncle, respectively.  The loan proceeds were put into Attorney Mitz's trust account.  M.F. also applied for a loan from PS Finance for the amount of $8,000.  Attorney Mitz helped M.F. with those loan documents and notarized a number of documents, including an "Attorney Acknowledgement of Explanation of Terms to Plaintiff, of Revocable Lien and Assignment to Pre-Settlement Finance, LLC."

In May 2007, a settlement was reached with J.J.'s insurer, Badger Mutual Insurance, in the amount of $100,000.  Attorney Mitz promptly used a portion of the settlement proceeds to repay M.F.'s loans from Attorney Mitz's father and uncle.  Attorney Mitz failed to notify PS Finance of the settlement.

Between May 2007 and November 2008, Attorney Mitz distributed the remainder of the settlement proceeds, without any payment to PS Finance.

In February 2009, PS Finance learned that M.F.'s personal injury case had settled.  Through a series of conversations and emails made part of the underlying record, Attorney Mitz claimed that he hadn't received the settlement proceeds and that he was still trying to put numbers to the proper disbursements from the settlement, among various other excuses.  In October 2011, Attorney Mitz informed PS Finance that settlement proceeds were in his trust account but that no one had yet been paid.  Attorney Mitz claimed he would fax a letter to PS Finance confirming that the settlement funds were still in his trust account.  PS Finance never received the promised letter.

Eventually, in February 2012, PS Finance filed a grievance with the OLR.  In response to the OLR's inquiries, Attorney Mitz stated that he "first became aware that the loan had in fact been closed and the existence of PS Finance's claimed lien in 2008, after the settlement with Badger Mutual."  In August 2013, Attorney Mitz sent PS Finance a check in the amount of $11,637, the full balance due on the loan. 

The attorney was admitted in 1973 and has no record of prior discipline. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

Unsweet Home Alabama

The District of Columbia Court of Appeals will hear oral argument in a reciprocal discipline case next Thursday involving an Alabama disbarment

Thursday, April 9, 2015 9:30 AM

Associate Judges Fisher and Easterly; Senior Judge Ruiz

No. 14-BG-0005


My analysis of the case from a June 2014 post

The District of Columbia Board on Professional Responsibility (BPR) has recommended that an attorney who was disbarred in Alabama be suspended for 90 days with fitness as reciprocal discipline.

The case is a very hard one given a host of factors. It is complicated by the precedents relating to an attorney's failure to participate in reciprocal discipline proceedings.

The attorney was admitted in D.C. in 1986 and had no prior discipline in either Alabama or D.C.

The disbarment involved her conduct during a single state court criminal trial.

The Alabama order (which I have been unable to find on line) quotes from the transcript extensively. The attorney may well have crossed the often difficult to discern line from zealousness to argumentative, but no more so than I have frequently seen in hotly-contested criminal and civil trials.

The trial court found the attorney in contempt and declared a mistrial.

After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."

The prosecutor filed the bar complaint.

After the Alabama disbarment, the attorney sued a host of defendants including the Alabama Supreme Court.

The suit was dismissed on immunity grounds.

The Alabama State Bar Disciplinary Board found that the attorney's accusation against the judge violated Rule 8.2.  D.C.did not adopt that rule.

Further, the Alabama Board found that the attorney had a "dishonest and selfish motive" in the misconduct.  To me, that finding is nonsense.

This order of the Alabama Supreme Court provides some procedural details.

The reciprocal matter is complicated by two facts: the attorney defaulted and has been suspended for non-payment of D.C. bar dues since 1987.

When an attorney defaults in a reciprocal matter, the court has held (in  case I argued) that the Board's review should be a cursory one "to prevent an obvious miscarriage of justice."

Here, Respondent did not object to the imposition of identical reciprocal discipline-indeed, he took no part in the proceedings.

  Given this posture, we think the role of the Board should be a limited one.   The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline-a situation that we anticipate would rarely, if ever, present itself.

The D.C. Court of Appeals imposes summary reciprocal discipline unless someone objects. Here, the court took the unusual step of seeking the Board's views absent any objection.

The Board made the miscarriage of justice finding. Two Board members dissented. The dissent makes some excellent points: the attorney has not paid D.C. bar dues for over 25 years "evincing no interest in remaining a member of this bar" and had not advised D.C.of the Alabama sanction.

The Board is clearly correct (did I write that?) in concluding that contumacious conduct in a single trial would not result in severe discipline in an original matter. I also agree that disbarment as reciprocal discipline is so disproportionate to the misconduct as to shock one's conscience.

While the default is troubling, disbarment in this case is more so.

The Board recommendation may be found at this link by entering the name Sherryl Goffer. The   Alabama order was under the name Sherryl Caffey.

Also, as a blogger who surfs state court and bar web pages for disciplinary orders, I would rank Alabama as the very worst jurisdiction  in terms of online transparency. Lack of transparency (which is not limited to Alabama) makes me wary of any disciplinary regime. If anyone knows how to find Alabama disciplinary orders on line, please educate me.

District of Columbia Bar Counsel supports disbarment.

As an assistant bar counsel, I argued many times in opposition to a downward departure from identical discipline recommendation by the BPR. My position was premised in the idea that the Board often inappropriately either minimized the misconduct found or second-guessed the disciplining tribunal's sanction.

Here, the Alabama proceedings just give me pause that I rarely, if ever, have felt in a reciprocal matter.

I predict that the Court of Appeals will not impose such a harsh sanction. Stay tuned.

I predict that it will be a very unpleasant experience for the Assistant Bar Counsel who argues this case. 

See you there, I hope. (Mike Frisch)

April 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Limits On Deposition Consultation With Witness

A holding from the Nevada Supreme Court

We hold that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, however, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the instant case, we conclude that the communications between the witness and plaintiffs counsel during the break in the witness's deposition are discoverable because plaintiffs counsel requested the recess in the deposition and failed to make a sufficient, contemporaneous record of the privileged communications.

There seems to be a problem with the link.

The case is Coyote Springs Inv. v. Eighth Judicial District Court, decided today. (Mike Frisch)

April 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Law Firm Not Liable To Client Creditor

The Nevada Supreme Court has held a law firm not liable for estate planning work that transferred a client's assets to a trust.

The suit was brought by a creditor of the client

In this case, we consider whether, under Nevada's fraudulent transfer law, a nontransferee law firm may be held liable for its client's fraudulent transfers under the accessory liability theories of conspiracy, aiding and abetting, or concert of action. We hold that Nevada, like most other jurisdictions, does not recognize accessory liability for fraudulent transfers. We therefore affirm the district court's judgment in favor of the law firm. We further hold, however, that the district court abused its discretion by awarding costs to the law firm without sufficient evidence showing that each cost was reasonable, necessary, and actually incurred. Thus, we reverse, in part, the district court's post-judgment order awarding costs.

The facts

In 2004, Robert Krause retained respondent law firm Woods & Erickson, LLP, for estate planning services. The following year, Woods & Erickson created for Krause various legal entities, including an asset protection trust, into which Krause eventually transferred his assets. Meanwhile, appellant The Cadle Company (Cadle) was attempting to collect on a California judgment against Krause. After learning of the transferred assets, Cadle sued Krause and Woods & Erickson in the underlying action, alleging that Krause had fraudulently transferred assets in order to escape execution of the judgment and that Woods & Erickson had unlawfully facilitated the fraudulent transfers.

Plaintiff loses; law firm wins.

The case is Cadle Co. v. Woods & Erickson LLP, decided March 26, 2015. (Mike Frisch)

April 2, 2015 in Law Firms | Permalink | Comments (0) | TrackBack (0)