Thursday, July 3, 2014

Failure To Prevent Bogus Law Office Leads To Resignation, Disbarment

The New York Appellate Division for the Second Judicial Department has accepted the resignation of an attorney and ordered his disbarment.

The attorney faced the following charges is alleged that he: (1) failed to prevent or timely discover that Michael Schlussel, a disbarred lawyer, had established "an entirely separate and related law office" in the resignor's name, and used that bogus law office to engage in the unauthorized practice of law, as well as to commit one or more attorney conduct violations in connection with legal matters entrusted to the bogus law office; (2) failed to timely discover that his brother, Mark Savran, a nonlawyer who worked in the resignor's actual law office, had (a) permitted Ms. Eualee Guy-Lodge and Mr. Fausto De Los Santos to ostensibly retain the resignor's services, (b) received funds from these purported clients, and (c) thereafter ignored the legal matters he told these individuals had been entrusted to the resignor's office, without the resignor's knowledge or authority; (3) failed to take appropriate action to halt and/or remediate the foregoing conduct at a time when he could have done so; and (4) failed to cooperate with the efforts of the Grievance Committee for the Ninth Judicial District to investigate the Guy-Lodge and De Los Santos matters.

(Mike Frisch)

July 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Demolition Derby

The Indiana Supreme Court has imposed a suspension of18 months without automatic reinstatement of an attorney for incompetence, conflicts of interest and frivolous litigation in connection with the proposed condemnation and demolition of a building owned by an elderly woman.

The attorney represented the interests of a convicteed murdered referred to as JH as well as the owner. JH was employed as a "contract paralegal" by the attorney. He was also found to have concealed his relationship with JH to disciplinary authorities for two years.

The attorney has a record of prior discipline for incompetence and instituting frivolous litigation. He also made frivolous claims in the disciplinary matter. (Mike Frisch)

July 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 2, 2014

Lack Of Biological Connection No Bar To Parent Status

The New Hampshire Supreme Court has held that a woman whose then-partner had a child through insemination of an anonymous sperm donor had adequately pleaded parentage of the child in guardianship and adoption proceedings.

Assuming the truth of Susan’s alleged facts, and construing all reasonable inferences in the light most favorable to her...we conclude that she adequately pleaded that she received Madelyn into her home and openly held Madelyn out as her child. She and Melissa planned to have and raise children together. They prepared Madelyn’s nursery together in the home they had jointly purchased because they "thought it would be a good place to raise a family." When Madelyn was born, Susan was in the delivery room. She alleges: "From the very beginning, Maddie, Melissa, and I were a family. Melissa was the ‘Mommy,’ and I was the ‘Momma.’ Together we were . . . Maddie’s parents, and Maddie was our daughter. I loved Maddie as my daughter, treated her as my daughter, and saw her as my daughter."

Susan’s allegations, taken as true, indicate that Melissa also regarded Susan as Madelyn’s parent as evidenced by, among other things, giving Susan a greeting card commemorating the "Birth of Our Baby," and including her as "Momma," and her parents as Madelyn’s grandparents, on Madelyn’s family tree. The allegations also indicate that Susan appeared "to the world" to be Madelyn’s parent. Madelyn shares Susan’s last name. Susan was named as a parent, along with Melissa, in birth announcements and in a church ceremony. Susan was named as a parent in Madelyn’s school and medical records, and was treated as a parent at Madelyn’s preschool.

The court concluded that the governing statutes apply equally to men and women and that the "lack of a biological connection" was not a bar to a parent-status claim. (Mike Frisch)

July 2, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Praise For "Confidence Games"

The Georgetown Law web page has this post on the new book by Tanina Rostain and Mitt Regan

In their new book Confidence Games: Lawyers, Accountants, and the Tax Shelter Industry (MIT Press, 2014), Professors Tanina Rostain and Milton C. Regan Jr. describe the rise and fall of the tax shelter industry, the professional misconduct that allowed it to flourish and the ultimately successful government efforts to subdue it.

Rostain and Regan set the stage for this development — the boom years at the turn of the 21st century and the raft of complex tax shelters developed by such accounting firms as KPMG and Ernst & Young — and the hobbled Internal Revenue Service that struggled to keep up with it. The authors acknowledge that individual wrongdoers were at fault, but they also probe the organizational causes and the responsibility of the tax adviser: “If the lawyer fosters the perception that other taxpayers lack a sense of civic obligation, she can lead the client to adopt a similar attitude in self-defense.”

 “Confidence Games is a lively and deeply informed human story,” says Pulitzer Prize-winning tax journalist David Cay Johnston. “… Rostain and Regan give readers a solid primer, translating arcane principles of accounting. Then they add a human touch with telling details mined from a public record few others have explored.” 

Claire Hill, Professor and James L. Krusemark Chair in Law at the University of Minnesota Law School, says, “This book manages what many might think impossible: it’s a page-turner about tax."

(Mike Frisch)

July 2, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Trustee Claims Against Dissolved Law Firms Rejected

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 court

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...

(Mike Frisch)

July 1, 2014 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Fifth Reprimand For "Inattention To Details"

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.

(Mike Frisch)

July 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Poorly Conceived Short Cut"

The Illinois Administrator has filed an amended complaint in the disciplinary matter involving former Sidley Austin partner Lee Smolen.

The charge

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.

(Mike Frisch)

July 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Attorney Injured By Client Has Federal Claim Against State Mental Health Facility

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)

June 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: No "Horsing Around"

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)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Plea For Transparency

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)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2014

To Embarrass And Burden

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)

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

D.C. Bar Seeks To Change Bar Counsel's Name

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)

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

Thursday, June 26, 2014

Flying Hotdog Not Inherent Risk Of Watching A Baseball Game

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

A spectator, allegedly injured when a hot dog tossed by a baseball team’s mascot hit him in the eye, appeals a jury verdict in favor of the team that assessed 100 percent of the fault for his injury to him. In a unanimous decision written by Judge Paul C. Wilson, the Supreme Court of Missouri vacates the judgment and remands (sends back) the case. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. The risk of being injured by the hotdog toss is not one of the inherent risks of watching a baseball game. As a result, the trial court erred in submitting an instruction putting this question to the jury. Because the error affected the outcome of the case, it was prejudicial, requiring the judgment to be vacated and the case remanded.
The court's opinion is linked here. Also linked is a story from the Associated Press.
(Mike Frisch)

June 26, 2014 in Law & Business, Law & Society, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

A Fine Line

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.

(Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Judge Removal From Office Upheld

 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 court

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)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

How Not To Use Social Media: Suspension Proposed For Tweets And Online Campaign

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)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Seek Disqualification Waives Objection

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)

(Mike Frisch)

June 26, 2014 | Permalink | Comments (0) | TrackBack (0)

The Candyman

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)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Wendy Brown Scott chosen as new Dean of Mississippi College's law school

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 Wendy-scottespecially 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]

June 25, 2014 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Klayman Update

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)

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