Friday, July 17, 2015

"Troubling Quixotry" Gets Lawyer Suspended: Don Quixote In Colorado

A Colorado attorney was suspended for six months for his advice to a client

Beecher advised his client, a criminal defendant, not to attend a pretrial conference when he discovered that her ex-husband, whom he believed was dangerous and violent, would be attending the conference. Disregarding all available information to the contrary, Beecher assured his client that he would obtain a continuance and informed her that she need not appear. Although he failed to obtain a continuance, Beecher refused to attend the pretrial conference himself. As a result, a bench warrant issued for his client’s arrest. Beecher then delayed taking appropriate action to quash the warrant or resolve the situation, and he failed to secure his client’s appearance at a subsequent hearing.

The client had been charged with the theft of a laptop as an act of domestic violence. The attorney sought to persuade the prosecutor that the charges were groundless.

He sent an email making those arguments and

The day after this email correspondence, a gunman crept into a crowded movie theater in Aurora, Colorado, set off gas canisters, and then mowed the audience down in a mass shooting, killing many people and injuring countless others. Family friends of Respondent’s were killed. The lone suspect, James Holmes, was arrested at the scene. In the aftermath of the tragedy, Respondent spent time reading about James Holmes. He also reviewed Quispe’s divorce and medical records. Respondent testified that, like Holmes, there were “warning signs” relating to Julian; according to Respondent, Quispe’s records suggested that Julian was a dangerous man who had seriously injured Quispe in the past and who continued to pose a substantial threat to her safety.

The conduct occurred when the attorney and prosecutor clashed over the appearance of the "victim" of the alleged crime. Things got quite intense and involved court personnel.

The offending advice followed.

 More critically, Respondent failed to appreciate the distinction between stipulating to a continuance of the pretrial conference and waiving the appearance of a defendant on bond. Judge Bencze explained that even if the parties had agreed to a continuance, he would have required Quispe to appear so that he could order her to attend the next bond  returnable court date. And, as [prosecutor] Coyne testified, even though she promised not to oppose a continuance, she did not have the authority to grant the continuance or excuse Quispe’s appearance, which only the court could do. In fact, Coyne discussed this with Respondent in one of their email exchanges prior to the 1:30 p.m. docket—written before Quispe failed to appear—when Coyne made clear that although she would not oppose the motion to continue, Quispe still remained under court order to be present. To advise Quispe not to appear, and then to refuse to reevaluate this advice in the face of Coyne’s warning, was to provide Quispe deficient counsel concerning court procedures and rules.

We cannot endorse Respondent’s contention that his behavior was justified in order to keep Julian away from Quispe and thus to avoid violence. As the People observe, even a “noble motive does not warrant departure from the Rules of Professional Conduct.”But as a practical matter, Respondent need not have resorted to his chosen course of action: a panoply of options existed to ensure Quispe’s safety during the pretrial conference, yet Respondent neglected to pursue any of them. He neither accepted Coyne’s offer of courthouse security, nor specifically inquired of [judicial assistant] Wilson whether Judge Bencze could provide assistance, nor arranged for a private security detail, as he later did on August 2. Any of these remedies would have been very easy to execute, and the consequence for not doing so was extremely predictable. Although Respondent may have feared for Quispe’s safety, he appears to have been blinded by that concern, which interfered with his capacity to problem-solve and exercise good judgment.

The attorney was found to have engaged in incompetent representation and conduct prejudicial to the administration of justice but not to have counseled a client to engage in criminal conduct.

He had prior discipline for an "intimate, albeit non-sexual" relationship with a client that caused a conflict of interest.

Sanction

In this case, Respondent’s misconduct stemmed from his concern for Quispe’s safety, was of relatively short duration, caused Quispe no actual harm, and was remedied without difficulty when Respondent and Quispe finally appeared in court. But unlike the negligent conduct in Moskowitz, Respondent knowingly refused to appear at the pretrial conference, even though he easily could have done so. Further, like the lawyer in Davies, Respondent refused to acknowledge his misconduct and has a prior disciplinary history that includes a ninety-day suspension. As in Bauder, Huntzinger, and Roose, Respondent prejudiced the administration of justice by refusing to comply with explicit court orders—conduct that was compounded by the presence of several aggravating factors. Respondent’s behavior might be most akin to the misconduct described in Aron, where the lawyer failed to notify his client of the potential repercussions of his advice but acted without a dishonest or selfish motive. In contrast with that case, the harm here is minimal but, unlike that lawyer, Respondent knowingly prejudiced the administration of justice and has a serious prior disciplinary history.

Taking into consideration the nature of Respondent’s conduct, the one mitigating and three aggravating factors, and the relevant case law, we conclude Respondent should be suspended for six months, with the requirement that he petition for reinstatement. In so doing, we recognize that the lawyering tasks involved in Quispe’s case were neither complex nor unusual and that the rule violations at issue are relatively minor when measured by the injury they caused. Nevertheless, we impose this sanction to reflect Respondent’s ineptitude in Quispe’s misdemeanor matter, which he mishandled so as not only to expose Quispe to possible arrest, but also to offend Judge Bencze, his staff, and Coyne—all to no purpose.

In imposing this sanction, we are most swayed by Respondent’s prior disciplinary case, which, while it does not concern parallel rule violations to those at issue here, reflects a similar and troubling quixotry. In both this case and his earlier disciplinary matter, Respondent jettisoned his good judgment, fueled by what seem to be protective impulses toward his female clients. Rather than relying on his legal training to help resolve his clients’ issues, in both cases he abandoned his role as an officer of the court and legal counselor and instead reacted as a combatant, without due regard for the consequences. Further, although we do not rely on them to find rule violations, Respondent’s rash, emotional outbursts while communicating with Coyne and Wilson, as described in this opinion, illustrate our concern with what seems to be an emerging pattern: during the course of representing clients, Respondent has twice been blinded by his emotions in the heat of the moment. In this matter, Respondent’s hair-trigger reaction escalated what should have been a simple matter, culminating in a series of bizarre verbal exchanges with Wilson that left her visibly frightened. He also reflexively reported Coyne to the disciplinary authorities based on his self-described incorrect assumptions.

Such impetuous, irrational behavior, coupled with similar conduct in Respondent’s first disciplinary case, leads us to conclude that he should serve a meaningful suspension, followed by a process of petitioning for reinstatement. To impose a suspension shorter than his prior sanction—a served suspension of ninety days—would trivialize his misconduct and send the wrong message that similar future offenses, even those amplified by other significant aggravators, might not be met with mounting discipline. Requiring Respondent to petition for reinstatement recognizes the worrisome nature of his developing pattern and encourages him to explore, prior to resuming his law practice, how best to control his passions and make reasoned, logical decisions in the face of emotion, stress, and time pressure. For this reason, as a condition of his reinstatement we require Respondent to undergo an independent mental health evaluation and to initiate such treatment as recommended by the evaluator.

Reinstatement is not automatic after the six months. (Mike Frisch)

July 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

North Carolina: No Computer Tablet Giveaway In Client Solicitation

From the web page of the North Carolina State Bar

At its meeting on April 17, 2015, the State Bar Council adopted the ethics opinions summarized below:

2015 Formal Ethics Opinion 1
Preparing Pleadings and Other Filings for an Unrepresented Opposing Party

Opinion rules that a lawyer may not prepare pleadings and other filings for an unrepresented opposing party in a civil proceeding currently pending before a tribunal if doing so is tantamount to giving legal advice to that person.

2015 Formal Ethics Opinion 2
Preparing Waiver of Right to Notice of Foreclosure for Unrepresented Borrower

Opinion rules that when the original debt is $100,000 or more, a lawyer for a lender may prepare and provide to an unrepresented borrower, owner, or guarantor a waiver of the right to notice of foreclosure and the right to a foreclosure hearing pursuant to N.C.G.S. § 45-21.16(f) if the lawyer explains the lawyer’s role and does not give legal advice to any unrepresented person. However, a lawyer may not prepare such a waiver if the waiver is a part of a loan modification package for a mortgage secured by the borrower’s primary residence.

2015 Formal Ethics Opinion 3
Offering Prospective Client a Computer Tablet in Direct Mail Solicitation

Opinion rules that a lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter.

(Mike Frisch)

July 17, 2015 in Current Affairs | Permalink | Comments (0)

Too Late The Plaintiff

The statute of limitations ran on a legal malpractice plaintiff, according to a decision of the New York Appellate Division for the Second Judicial Department.

...contrary to the plaintiff's contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss. Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212. Although the defendant's motion was made pursuant to 3211(a)(5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof, Thus, the defendant's motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.

Further, the Supreme Court properly concluded that the plaintiff's legal malpractice cause of action is time-barred. The defendant met its prima facie burden of demonstrating that the action was commenced more than three years after the alleged malpractice occurred. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by continuous representation. In that respect, the evidence demonstrated that after the plaintiff and her husband retained the defendant law firm to represent them in a personal injury action, the defendant law firm retained the law firm of Bauman & Kunkis, P.C. (hereinafter Bauman & Kunkis), to represent the plaintiff and her husband in that action, and thereafter had no contact with the plaintiff. All of the work on the case, from filing the pleadings to selecting a jury, was performed by Bauman & Kunkis. Before the case could be tried, it was dismissed based on willful default, and Bauman & Kunkis was substituted with a different law firm, which sought to restore the action. Even if the arrangement between the defendant and Bauman & Kunkis could be equated with joint representation, under the circumstances of this case, the defendant's representation of the plaintiff would have terminated as of December 1, 2006, the date on which Bauman & Kunkis was substituted. Accordingly, the present legal malpractice cause of action, commenced on or about April 9, 2012, was untimely. (citations omitted)

(Mike Frisch)

July 17, 2015 in Clients | Permalink | Comments (0)

Thursday, July 16, 2015

Targeted Lies Draw Informal Admonition

The District of Columbia Office of Bar Counsel ("OBC") has informally admonished an attorney for dishonesty

This matter was docketed for investigation based upon the ethical complaint filed against you by your former employer, C.C.F, Esquire (Ms. F). Based upon our investigation of this matter, we find that your conduct violates of Rule 8.4(c) of the District of Columbia Rules of Professional Conduct (the "Rules"). Ms. F hired you in October 2010 as a paralegal in her solo elder law practice.

You passed the District of Columbia Bar examination in October 2011, and Ms. F hired you as a Staff Attorney.

In December 2010, Ms. F was appointed the guardian and conservator for VFE ("Ms. E"). As the guardian/conservator, Ms. F was responsible for, inter alia, handling Ms. E" s financial affairs. Ms. E lived at her home with her adult son, VFE ("V"), and her grandson.

In or about November 2011, Ms. F requested that you purchase clothing and shoes for Ms. E. Thereafter, you purchased clothing and shoes at a Target Department Store ("Target") on behalf of Ms. E, totaling $287.12. Ms. F delivered the items to Ms. E on or about November 14, 2011. Thereafter, V returned four illfitting items of clothing and a pair of shoes. Ms. F asked you to return those items to Target.

In the spring of 2013, V accused Ms. F of theft, alleging that she had not delivered $287 .22 of clothing to Ms. E.  Ms. F sent V a copy of the receipts for the items. Thereafter, V requested that Ms. F provide him with a copy of the receipt for the returned items. Ms. F then asked you about the matter, and you told her that you had forgotten to return the items in November 2011, which were still in a bag in a filing cabinet drawer. Ms. F then asked you to return the items.

Thereafter, you falsely reported to Ms. F that you had returned the items. In fact, because the purchase had taken place two years earlier, Target would not accept the untimely return of the items. Consequently, you purchased a gift card in the amount of the previously purchased items. You gave Ms. F the gift card, with a value in an amount equal to the previously purchased items. Because V had requested the receipt for the allegedly returned items, Ms. F again asked you to contact Target and to obtain a receipt. In response, you falsely told Ms. F that you had contacted Target, but that it could not generate a new receipt. Ms. F repeated your false version of events to V.

In or about August 2014, V filed with the court a petition to remove Ms. F as the guardian/conservator for Ms. E. Among other things, V alleged that Ms. F had failed to provide him a receipt for the return of the previously purchased items. On August 19, 2013, Ms. F filed with the court a response to V's petition. Based upon your version of events, Ms. F represented to the court that "[t]hose five items were returned for a gift card in the amount of the items."

In light of V's continuing pressure for, inter alia, a copy of the receipt, Ms. F called Target in an attempt to get a receipt for the allegedly returned items.

In response to her inquiry, Target researched the issue and advised her that there had been no return of the previously purchased items, and that the gift card had been purchased rather than exchanged for the previously purchased items.

Ms. F confronted you about her communications with Target, and you immediately acknowledged to her that you had not returned the clothes. Instead, you told her, that you had purchased the gift card with your own funds and that you had donated the previously purchased clothing to a charity. In a subsequent pleading filed with the court, Ms. F disclosed your false statements regarding the true disposition of the allegedly returned items.

OBC concluded

In this matter, you falsely reported to Ms. F that you had returned to Target the previously purchased items that V had rejected. You also falsely reported to Ms. F that you had lost the receipt for the returned items and that Target could not reproduce the receipt. Such false statements were dishonest.

(Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Conviction Reversed; Attorney Still Disbarred Based On Conviction

An attorney convicted of two counts of felony possession of a sexual performance of a child was automatically disbarred by the New York Appellate Division for the Third Judicial Department, notwithstanding the court's reversal of that conviction.

From the court's order reversing the criminal conviction and dismissing the indictment on grounds of delay

On January 28, 2009, defendant's computer was seized by the Town of Colonie Police Department (hereinafter TCPD) after a computer repair technician reported that he discovered the computer contained what he believed to be child pornography. The following day defendant was questioned by the TCPD and, in July 2009, it obtained a search warrant to analyze the content of defendant's computer. On December 4, 2013, defendant was indicted and charged with 26 counts of possessing a sexual performance by a child, a class E felony. Relevant to this appeal, defendant moved to dismiss the indictment contending that the nearly five-year delay in obtaining the indictment was unreasonable and violated his due process rights. Although defendant requested and the People consented to a Singer hearing (see People v Singer, 44 NY2d 241 [1978]), County Court summarily denied defendant's motion. Thereafter, reserving his right to appeal the Singer issue, defendant pleaded guilty to two counts of the indictment and, after an initial sentencing error, was resentenced to concurrent prison terms of 1 to 4 years, which County Court stayed pending disposition of the instant appeals...

The record, however, is shockingly sparse concerning the reason for the preindictment delay. In opposition to defendant's motion to dismiss, the People asserted that the Town of Colonie Police Department originally referred the matter to the office of the United States Attorney for the Northern District of New York and did not provide the People with defendant's file until November 2013. However, without explaining the source of their knowledge, they go on to summarize events that took place before they received the file, including unsuccessful preindictment negotiations between defense counsel and a federal prosecutor, defendant's firing of his attorney, the assignment of a new Assistant United States Attorney to the case and the decision of the United States Attorney not to prosecute defendant.

The People's proffered reasons raise more questions than they answer. For example, the People did not reveal when and how they first learned that the matter had been referred to the United States Attorney, nor did they offer any explanation as to why they did not prosecute defendant while he was subject to federal indictment. While the answers to these questions, and others, may not be readily available, I find it significant that the People consented to a Singer hearing, thereby suggesting that they possessed additional information that could illuminate the circumstances that precipitated the delay. That the statements made in the sparse, 1½-page affidavit submitted by the People are based merely upon a review of the files maintained by the Albany County District Attorney — and do not come from someone with personal knowledge of the circumstances — further supports this conclusion.

The reversal did not alter the result

This Court's recent reversal of Montague's conviction based upon preindictment delay (___ AD3d ___, 2015 NY Slip Op 05721 [July 2, 2015]) does not change the result since "[r]eversal of the conviction does not automatically restore the attorney to the [b]ar [and, t]o attain such relief, the attorney must make a motion for reinstatement" (Matter of Toro v Malcolm, 44 NY2d 146, 152 [1978] [citations omitted]).

(Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Times Four

A busy day for the New York Appellate Division for the Second Judicial Department - a total of four disbarments.

One involved a conviction for possession of a forged instrument.

Another a conviction for conspiracy to commit mail and wire fraud.

So did this case

The indictment alleged that the respondent and his codefendants, inter alia, fraudulently offered and sold investment interests in life insurance policies to the general public through a company named Mutual Benefits Corp. (hereinafter MBC). The respondent and his codefendants made, and caused others to make, numerous false and fraudulent representations concerning such matters as the management of MBC, the safety and reliability of investments sold through MBC, historical returns on investments sold through MBC, the life expectancy of individuals insured by the life insurance policies being sold, and the sufficiency of the funds set aside to make payments on those policies. MBC raised more than $1.25 billion from more than 30,000 investors worldwide, resulting in losses of approximately $837 million.

And this attorney went down on misappropriation (linked here ).

(Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Assignment Of Personal Injury Claim

The South Carolina Supreme Court answered a certified question

We certified the following question from the United States District Court for the District of South Carolina: "Can a legal malpractice claim be assigned between adversaries in litigation in which the alleged legal malpractice arose?" In answering the question "no," we adopt the majority rule and hold that such assignments are void as against public policy.

Plaintiff Skipper was involved in an accident with a logging truck. He and his wife sued the driver and company owner.

Unbeknownst to [insurer] ACE or its attorneys, the Skippers entered into a settlement with the allegedly at-fault defendants, Moors and Specialty. Moors, Specialty, and Specialty's owner Michael Perry Bowers (collectively, Specialty Parties) agreed to execute a Confession of Judgment for $4,500,000, in which they admitted liability for the Skippers' injuries and losses. The Specialty Parties also agreed to pursue a legal malpractice claim against ACE and its attorneys Rowlen and Coia (collectively, Defendants) and assigned the predominant interest in that claim to the Skippers. In exchange for the Specialty Parties' admission of liability, the Skippers agreed not to execute the judgment as long as the Specialty Parties cooperated in the legal malpractice litigation against Defendants.

Armed with the assignment, the Skippers and Specialty Parties (collectively, Plaintiffs) filed a legal malpractice action against Defendants in the Allendale County Court of Common Pleas. The case was removed to the United States District Court for the District of South Carolina. In federal court, Defendants asserted the assignment of the malpractice claim was invalid and that the Skippers had no valid claims to assert. The parties filed competing motions, which (we are informed) turn on whether the assignment to the Skippers was valid.

The danger of collusion

For the law to countenance this abrupt and shameless shift of positions would give prominence (and substance) to the image that lawyers will take any position, depending upon where the money lies, and that litigation is a mere game and not a search for truth. It is one thing for lawyers in our adversary system to represent clients with whom they personally disagree; it is something quite different for lawyers (and clients) to switch positions concerning the same incident simply because an assignment and the law of proximate cause have given them a financial interest in switching.

The court

We have carefully considered the arguments of Plaintiffs' able counsel urging this Court to adopt the minority rule, but we find the majority rule more compelling and persuasive. Accordingly, in South Carolina, the assignment of a legal malpractice claim between adversaries in litigation in which the alleged malpractice arose is prohibited.

(Mike Frisch)

July 16, 2015 | Permalink | Comments (0)

Wisconsin Decides John Doe Investigation Cases

The Wisconsin Supreme Court has issued its opinion in several consolidated cases dealing with the so-called John Doe investigation.

From Justice Gableman's majority opinion

To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation...

We hold that the special prosecutor has failed to prove that Reserve Judge Peterson violated a plain legal duty when he quashed the subpoenas and search warrants and ordered the return of all property seized by the special prosecutor.  In quashing the subpoenas and search warrants, Reserve Judge Peterson exercised his discretion under the John Doe statute, Wis. Stat. § 968.26, to determine the extent of the investigation.  Because the purpose of a supervisory writ does not include review of a judge's discretionary acts, Kalal, 271 Wis. 2d 633, ¶24, the supervisory writ sought by the special prosecutor is denied, and Reserve Judge Peterson's order is affirmed...

in Three Unnamed Petitioners, we hold that the Unnamed Movants have failed to prove that either Reserve Judge Kluka or Reserve Judge Peterson violated a plain legal duty by: (1) accepting an appointment as a reserve judge; (2) convening a multi-county John Doe proceeding; or (3) appointing a special prosecutor.  Although the circumstances surrounding the formation of the John Doe investigation raise serious concerns, and the appointment of the special prosecutor may well have been improper, such concerns do not satisfy the stringent standards of a supervisory writ.  Put another way, if we were to grant the supervisory writ in this case, we would risk "transform[ing] the writ into an all-purpose alternative to the appellate review process," which we cannot do.  Id.  Accordingly, we deny the supervisory writ and affirm the decision of the court of appeals.

There are concurring opinions. This from Justice Zeigler

During pre-dawn darkness in October 2013, several armed law enforcement officers wearing flak jackets, carrying battering rams, and using bright floodlights executed secret John Doe search warrants in the homes of Wisconsin residents.  What was the prosecution searching for?  The prosecution was in search of documents and electronic evidence, including personal computers and cell phones, to support alleged violations of Wisconsin's campaign finance law.  The warrants sought evidence that had been around for more than four years.  The warrants were executed shortly before morning, days after a judge signed them, while it was still dark outside.  Law enforcement certainly has, and should have, a great deal of discretion when it comes to how and when a warrant will be executed, but ultimately courts may review the reasonableness of that execution...

I join the majority opinion in all three cases.  I write separately to explain that even if the search warrants were lawfully issued, the execution of them could be subject to the reasonableness analysis of the Fourth Amendment to the United States Constitution and the Wisconsin Constitution's counterpart.  A totality of the circumstances analysis could include consideration of, among other things, the timing of the issuance and execution of the warrants, the manner in which the warrants were executed, whether public or officer safety concerns justified the manner of execution, and what type of evidence was being sought.

Justice Abrahamson concurred and dissented

The majority opinion and Justice Prosser's concurrence decide that the secrecy order does not bind the justices of this court. The secrecy order, in their view, binds only the parties and the public.

Because the majority of this court disregards its own secrecy order, Justice Prosser opines at length, without the benefit of briefs or facts, about allegedly overbroad search warrants and subpoenas.  Moreover, he  waxes eloquent about privacy and the limits that should be placed on search warrants seeking electronic material.  But he has previously waxed eloquent about privacy rights and has nevertheless upheld searches of electronic material that he recognized raise substantial privacy concerns.

Likewise, Justice Ziegler opines at length about the allegedly unconstitutional manner in which the search warrants were executed.  She does so without the benefit of briefs or facts.

Both justices opine about issues not previously raised by the parties or the court without giving the parties an opportunity to brief or argue the facts or law relevant to those issues...

I have repeatedly dissented to the excessive sealing and redactions this court has imposed in the John Doe trilogy and I have repeatedly dissented to this court's position that the John Doe secrecy order automatically binds this court, but I nevertheless conclude that the secrecy orders issued by this court (over my dissent) are binding on this court.  As explained above, it is settled law that a "magistrate" who issues a secrecy order is bound by that secrecy order.  The majority opinion and Justice Prosser's concurrence improperly ignore this principle...

n closing, I note that even if this court determined that the John Doe proceedings were procedurally defective and that a supervisory writ is warranted, only those Unnamed Movants who raised the objection before the John Doe judge may be entitled to any relief.  If not raised, these objections were waived (forfeited).  See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶27, 273 Wis. 2d 76, 681 N.W.2d 190 (stating that "the common-law waiver [forfeiture] rule applies to challenges to the circuit court's competency" and explaining that a competency challenge is waived as a matter of right if raised for the first time on appeal); In re Commitment of Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998) (providing that a defect in the appointment of a special prosecutor is waived (forfeited) if raised for the first time on appeal).

Justice Crooks also concurred and dissented.

It is also imperative to note that the majority conveniently overlooks the special prosecutor's secondary argument of criminal activity in its effort to end this John Doe investigation.  Specifically, the special prosecutor seeks to investigate whether particular express advocacy groups coordinated their spending with candidates or candidate committees in violation of their sworn statement of independence under Wis. Stat. § 11.06(7).  Despite the fact that the special prosecutor utilizes a significant portion of his brief to present evidence of such illegal coordination, the majority determines, without explanation, that the John Doe investigation is over.

Has the majority abused its power in reaching this conclusion?  The majority's rush to terminate this investigation is reminiscent of the action taken by the United States District Court for the Eastern District of Wisconsin in O'Keefe v. Schmitz, 19 F. Supp. 3d at 875, an action that was both criticized and reversed by the United States Court of Appeals for the Seventh Circuit in O'Keefe, 769 F.3d at 942.  Although the focus of my writing lies elsewhere, the majority's error in this regard cannot be overlooked.

For these reasons, I respectfully dissent in State ex. rel. Two Unnamed Petitioners v. Peterson (Two Unnamed Petitioners). 

However, because I agree that the special prosecutor and certain Unnamed Movants have failed to meet their heavy burden of establishing that the John Doe judge violated a plain legal duty in either initiating these proceedings or quashing various subpoenas and search warrants related to the investigation, I respectfully concur with the majority in State ex. rel. Schmitz v. Peterson (Schmitz v. Peterson) and State ex. rel. Three Unnamed Petitioners v. Peterson (Three Unnamed Petitioners).  In concurring in Schmitz v. Peterson, it is significant for me that when an appellate court decides to issue a supervisory writ, it is a rare, discretionary decision.  Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶33-34.  Here, the John Doe judge also made a discretionary decision in deciding a complex legal issue.  Deference should be given where there is such discretion.

 

Justice Bradley did not participate.

Obviously, this complex series of opinions will be the subject of intensive commentary. We have not attempted to carefully evaluate the opinions but post them so that interested persons can begin that process. (Mike Frisch)

July 16, 2015 in Current Affairs | Permalink | Comments (0)

What's In A Name?

Last month, the District of Columbia Court of Appeals put out a notice seeking comment on a proposed name change for the Office of Bar Counsel.

This court is considering whether to adopt a proposal transmitted by the Board of Governors of the District of Columbia Bar to amend Rule XI of the District of Columbia Rules Governing the Bar, by changing the title of Bar Counsel to "Disciplinary Counsel;" and to make conforming changes to other rules.

I happen to think that this is a lousy idea. 

As I said when it was first floated

By letter to Chief Judge Washington dated May 14, 2014, the Board [of Governors] 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."

Well.

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.

I do not plan to comment beyond this post because there are so many more substantive problems with the D.C. bar disciplinary system that I no longer care about this particularly pointless change. (Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Stayed Suspension For Misappropriation

A fully-stayed suspension of 18 months has been imposed by the Pennsylvania Supreme Court in a disciplinary matter that began with the report of a bounced escrow check.

The attorney cooperated and self-reported other escrow account issues including two instances of misappropriation.

He replenished the $11,000 that he had misused.

There was agreement that he met the standard for mitigation based on a diagnosis of major depression and other conditions. He also had financial and emotional stress as a result of his son's medical condition which resulted from a severe concussion. (Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Knocked Off

A subcommittee of the Virginia State Bar imposed a public reprimand without terms as an agreed disposition.

The matter involved a search of the attorney's law office. The search had revealed several items with the Coach, Inc. brand name that had been ordered off the internet by the attorney 's wife.

The items were "knock-offs" that were not made by Coach, Inc.

The wife pleaded guilty to misdemeanor Trademark Infringement.

The attorney was not linked to the "knock-off" items.

The problem lay elsewhere.

After Coach sued he and his wife, he backdated three deeds transferring property and falsely denied doing so in a deposition.

Later in the deposition, he fessed up and corrected the testimony.

The disposition indicates that the dishonest conduct did not affect the resolution of the underlying matter. (Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 15, 2015

No Inherent Sanction Authority When Settlement Breaks Down

A decision from the Massachusetts Supreme Judicial Court

The issue presented in this case is the scope of a judge's authority under the inherent powers of the court to order an attorney for a party to pay the other parties' attorney's fees as a sanction for the attorney's misconduct where that sanction is not authorized by any statute or court rule, and where the attorney has not violated a court order or rule of procedure. We conclude that a judge may exercise the court's inherent power to sanction an attorney with an assessment of attorney's fees only if the attorney has engaged in misconduct that threatens the fair administration of justice and the sanction is necessary to preserve the judge's authority to administer justice. Because we conclude that the judge abused his discretion in exercising the court's inherent powers to sanction the attorney under the circumstances in this case, and that the attorney's alleged misconduct was more appropriately addressed by a referral to the Board of Bar Overseers (board), we reverse the judge's order imposing sanctions.

The case involved a supermarket sale. The alleged misconduct was an attorney's solicitation letter to potential clients while a settlement was being negotiated. It was alleged that the settlement broke down due to the solicitation.

The court

The judge in this case essentially found that [attorney] Goren, by sending the solicitation letter, committed a breach of the "assumption of confidentiality" that was "central to the prospect of achieving settlement," and thereby thwarted a settlement that was on the verge of being executed, which wasted three months of attorneys' time that had been invested in negotiating the settlement, and "materially prejudiced" the court by delaying the judge's effort to move the consolidated cases towards trial. Further, although the judge recognized that he had no jurisdiction "[i]n a technical sense" to decide whether Goren had violated the rules of professional conduct, he nonetheless essentially found that Goren had violated these rules, and the judge relied on these violations to demonstrate that Goren had acted unreasonably to impede "the full and effective administration of justice." We review the judge's imposition of sanctions under the court's inherent powers for abuse of discretion. See Chambers, 501 U.S. at 55. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We know of no other case, nor has one been cited by the parties or amicus, where a judge sanctioned an attorney pursuant to the inherent powers of the court for conduct that resulted in a breakdown of settlement negotiations where there was no breach of a settlement agreement or confidentiality agreement, and no violation of an order of the court or rule of procedure. The fair administration of justice does not require the settlement of a case; although the parties are free to settle their case, their entitlement under law is to a trial, not to a settlement in lieu of a trial...

It might be regrettable that money and time were wasted in negotiations that ultimately failed to bear fruit, but that risk is inherent in every negotiation. Because of the risk that judges may misuse the inherent powers to pressure a party to settle a case by threatening the party with sanctions, and also because of the risk that judges will be drawn into collateral disputes regarding what occurred during settlement negotiations by parties seeking sanctions, we must scrutinize with special care any exercise of the inherent powers in the context of settlement negotiations...

Because the alleged wrongs committed by Goren did not threaten the judge's ability to ensure the fair administration of justice, we conclude that the judge exceeded the inherent powers of a court by his assessment of attorney's fees and therefore abused his discretion in doing so.

(Mike Frisch)

July 15, 2015 in Hot Topics, Professional Responsibility | Permalink | Comments (0)

No Reinstatement For Convicted Former Attorney

An Illinois Hearing Committee recommends that reinstatement be denied to a disbarred former attorney.

He had consented to disbarment in 1986.

The committee's summary

In May 1985, Petitioner was found guilty in the  United States District Court for the Southern District of Illinois on 17 counts  of an indictment in U.S. v. Wheadon, No. 84-30029. The conduct resulting  in his convictions occurred in 1981 and 1982, while he was the Executive  Director of the East St. Louis Housing Authority and responsible for the  construction and renovation of low income housing projects financed by the U.S.  Department of Housing and Urban Development HUD. The crimes for which Petitioner  was convicted included conspiracy to defraud HUD; corruptly soliciting,  demanding, and receiving money from a person in return for Petitioner approving  payments of HUD funds to that person for work Petitioner knew had not been  performed; embezzling, stealing and knowingly converting to his own use $370,000  in HUD funds by receiving twenty separate payments over a one-year period; and  knowingly filing false tax returns for 1981 and 1982 by not reporting as income  the foregoing funds. Based upon his federal convictions, Petitioner filed a  motion to strike his name from the roll of attorneys licensed to practice law in  Illinois. The Supreme Court allowed the motion on December 5, 1986.

After discussing the factors set out in Supreme  Court Rule 767(f), the Hearing Board found that Petitioner failed to make a  sufficient showing that he should be reinstated to the practice of law, and  recommended that the Petition for Reinstatement be denied.

Petitioner failed to disclose in his reinstatement application tax liens, a civil case, a criminal conviction and the revocation of his professional engineers license. (Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

One Man's Frivolity

The Minnesota Supreme Court has suspended an attorney with no right to seek reinstatement for twelve months.

The court affirmed findings of instituting frivolous litigation

the St. Paul Urban League (“SPUL”) hired Selmer as president and chief executive officer. In February 2011 the SPUL suspended operations due to “severe fiscal and other mismanagement.” Subsequently, Selmer, the SPUL, and various SPUL constituents became involved in multiple lawsuits spanning a significant number of court files. The Director filed this petition for disciplinary action against Selmer in January 2014 for his conduct in that litigation...

Selmer offers no basis in law to support filing a separate action in Hennepin County, appealing matters not ripe for review, or filing his federal complaint. Our review of the record therefore supports the referee’s conclusion.

As to sanction

We begin with the four factors. Selmer’s misconduct was serious. His dispute with the SPUL spanned a significant number of court files at the state district, federal district, and state appellate levels, all of which were dismissed based either on the frivolity of Selmer’s arguments or because Selmer failed to comply with court rules...

Selmer’s rule violations occurred in multiple court cases from August 2011 through June 2013. Selmer’s misconduct was therefore not a "single, isolated incident," but included multiple instances of misconduct over several years.

His prior four instances of discipline were aggravating factors

we consider similar cases. Here, one of Selmer’s own previous discipline cases is instructive. We previously suspended Selmer for 12 months after he engaged in a pattern of harassing and frivolous litigation, including filing several frivolous claims and knowingly offering false and misleading evidence in response to discovery requests. In re Selmer, 568 N.W.2d 702, 704-05 (Minn. 1997). The pattern of frivolous claims, which we held was an "abuse of the litigation process," is similar to the pattern of frivolous claims at issue here. See id. at 705. And the discipline we imposed in that case is the same as the referee recommended here. See id.

In conclusion, we agree with the referee’s determination that a 12-month suspension is the appropriate discipline for Selmer.

(Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suing Ethicon

The New Jersey Supreme Court has held that a medical doctor employed by a medical device manufacturing company is protected by the state's whistleblower laws.

From the court's summary

In this appeal, the Court considers whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientous [sic] Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.

Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination in May 2006. For the majority of his employment, plaintiff served as worldwide vice president of medical affairs and chief medical officer of Ethicon. He was responsible for safety, medical reviews, and medical writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the health risks posed by Ethicon’s products and provide medical input regarding any necessary corrective measures with respect to their products in the field. On numerous occasions, plaintiff objected to the proposed or continued sale and distribution of certain Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal and state laws and regulations.

In some instances, plaintiff opined that a particular product should not go to market, should be recalled, or that further research was necessary. Although he received “push back” from executives and other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon ultimately followed many of his recommendations. In April 2006, plaintiff advocated the recall of a particular product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff’s employment.

Held

CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection...

Although the Court agrees with the Appellate Division’s finding that watchdog employees are entitled to CEPA protection when performing their ordinary job duties, it disagrees with the panel’s reformulation of the elements required to establish a prima facie CEPA claim, as set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The panel’s requirement that watchdog employees demonstrate pursuit and exhaustion of all internal means of securing compliance is incompatible with prior precedent and imposes an obligation nowhere found in the statutory language. Where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Consequently, the Court modifies the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by the statute’s terms. CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim unless and until the Legislature expresses its intent that such employees meet a special or heightened burden. (pp. 35-38.

The judgment below was affirmed as modified and the case was remanded. (Mike Frisch)

July 15, 2015 in Comparative Professions | Permalink | Comments (0)

No Malpractice In Workers' Compensation Matter

The Maine Supreme Judicial Court affirmed the grant of summary judgment to a lawyer sued for malpractice based on his alleged negligence in a workers' compensation matter

Allen argues that she suffered a measureable loss due to McCann’s failure to advise her to perform a work search. However, Allen settled with her employer, and because of the settlement, her proffered damages calculation is speculative. Attorney MacAdam’s assertion, without further detail or explanation, that he believes that he could have settled for more had Allen been receiving an additional $150 per week in workers’ compensation benefits, does not provide a foundation upon which a jury could assess damages without resort to speculation. The other party to the settlement, the employer, certainly has its own settlement criteria, which may or may not have focused upon the weekly benefit rate. Because the factors producing a settlement cannot be ascertained or weighed in hindsight, attempting to calculate an award of damages is speculative. Summary judgment was correctly granted.

The malpractice issue arose after new counsel got involved

In March 2009, Allen hired attorney James MacAdam to represent her in her workers’ compensation claim, replacing McCann. MacAdam advised Allen to do a work search, which she did unsuccessfully, beginning in April 2009. MacAdam sought to use the work search to obtain an increase in Allen’s workers’ compensation benefits, but Allen’s employer raised a res judicata defense. In December 2010, MacAdam sent a settlement demand for $350,000 on behalf of Allen to her employer, and in July 2012, Allen settled her workers’ compensation claim for $300,000.

(Mike Frisch)

July 15, 2015 in Clients | Permalink | Comments (0)

Dr. Jekyll Returns To Practice

The Wisconsin Supreme Court has reinstated one attorney and denied reinstatement to another, both of whom were suspended from practice due to medical incapacity.

In the case where reinstatement was denied, the attorney had an substance abuse problem. 

The referee had found

The referee noted that Attorney Schlieve has not practiced law since 1998, and during that time she has not been employed outside the home.  She has primarily spent her time caring for her son, who has medical issues.  The referee noted that in addition to caring for her son, Attorney Schlieve has been active in her church, in dog rescue efforts, and in other community affairs.  In recent times, she has been working with a friend to establish two startup businesses, one offering tea party services and one offering wedding planning services. 

The referee noted that Attorney Schlieve has earned a significant number of continuing legal education (CLE) credits and has attended a significant amount of coursework, all online.  The referee noted that Attorney Schlieve provided a printout from the State Bar listing CLE attendance and dues payments from the early 1990s through January 2014.  The referee said it was impossible to determine precisely what courses Attorney Schlieve had actually attended, since all were online courses...

The referee said that Ms. Albert's testimony about Attorney Schlieve's participation in the WisLAP program raised a number of serious questions.  The referee said that after Attorney Schlieve's second positive test for codeine, and after Ms. Albert had informed Attorney Schlieve that WisLAP would continue with monitoring efforts through the reinstatement hearing but not thereafter, Attorney Schlieve contacted her doctor's office and withdrew the medical release in favor of WisLAP.  Because of the positive drug screen in February of 2014, WisLAP again requested a list of Attorney Schlieve's current medications and the dates they were first prescribed.  When the list was not forthcoming, WisLAP staff followed up with the doctor and was informed that there was no medical authorization from the patient.

 Judge Abrahamson dissented and would reinstate with conditions.

Reinstatement was granted in this matter in which the attorney has been suspended since 1989

Attorney Linehan's petition for voluntary revocation of his license to practice law stated that he was the subject of an investigation of possible misconduct with respect to his representation of a client "and is also the subject of an investigation involving possible misconduct and medical incapacity due to chronic substance abuse."  Attorney Linehan acknowledged that he could not successfully defend against the allegations of misconduct.  As additional background, he stated that he had been afflicted with a longstanding, chronic sickness or disease involving several forms of substance abuse, which sickness or disease was a factor which contributed to the conduct resulting in the misconduct allegations that were the subject of investigations by the Board of Attorneys Professional Responsibility (BAPR), the predecessor in interest to the Office of Lawyer Regulation (OLR).  The petition for voluntary revocation stated that, despite both inpatient and outpatient treatment, Attorney Linehan continued to be afflicted by chronic and significant problems involving substance abuse.  Attorney Linehan stated that he believed he was unable to obtain the long-term treatment needed to effectively recover from his medical condition and still practice law at the same time.  He stated that his desire to voluntarily surrender his license to practice law was based in part upon his belief that he had a medical incapacity, and that he desired to obtain further treatment for that condition.

The referee found

In reaching this [favorable] conclusion, the referee noted that "[t]his case presents the Jekyll/Hyde paradox in the life and times of Daniel W. Linehan, who has been 'characterized as sane when he is clean and sober and as insane when he is not.'"  The referee found that Attorney Linehan has been afflicted with chronic alcohol and substance abuse since approximately age 15.  In the 1980s, prior to his consensual license revocation, Attorney Linehan received both inpatient and outpatient treatment but exhibited a tendency for relapses of his chronic substance abuse.  The referee found that the chronic substance abuse substantially interfered with Attorney Linehan's ability to conduct his law practice.  The referee noted that after the revocation of his law license, Attorney Linehan spent time in the Dane County jail on a drunk driving conviction and his driver license was revoked. 

The referee further noted that in the 1990s, Attorney Linehan worked as a clerk for a law firm in Minnesota and as a paralegal with the Hennepin County Attorney's Office in Minneapolis.  The referee found that this employment was not deemed contrary to the Minnesota Rules of Professional Conduct.  While Attorney Linehan remained relatively clean and sober between 1992 and 1995, he suffered a relapse in 1995.  He was terminated from his job at the Hennepin County Attorney's Office in the spring of 1998 due to substance abuse issues.  Attorney Linehan filed petitions for the reinstatement of his Wisconsin law license in 1996 and 1998 but was not honest about the status of his substance abuse problems and decided to withdraw both petitions.  

In 1998, Attorney Linehan was charged with theft of a motor vehicle and aggravated drunk driving in Minnesota.  He was convicted and placed on probation.  Around 1998, Attorney Linehan began treating with Dr. Roger Johnson, a psychiatrist.  Dr. Johnson remained Attorney Linehan's main mental health treatment provider until the doctor retired in 2010.  Dr. Johnson diagnosed Attorney Linehan with major depression and treated him with medication.  With the doctor's support, Attorney Linehan applied for Social Security Disability benefits, which were awarded around 1998.

In December of 1998, Attorney Linehan was arrested for intoxication and being in possession of a stolen automobile.  The investigation revealed that he had burglarized his neighbor's residence, stole credit cards and their vehicle, and made charges with the credit cards without proper consent.  He was charged with eight criminal counts.  Because he was already on probation, he was incarcerated in the Sherburne County jail from December of 1998 until February of 1999.  In January of 1999, he was also charged with forgery involving a $3,000 check.  Attorney Linehan entered into a plea agreement on the charges in February of 1999 and was convicted and sent to prison. Around June 1, 1999, he was released on an ankle bracelet monitoring program.  He suffered a relapse and was arrested and sent back to prison for violating the terms of his release.  He was released from custody in July of 2000.

In 2003, Attorney Linehan was convicted of operating after revocation in Wisconsin.  In 2002 and 2003, he was sporadically drinking and using drugs.  He engaged in sporadic drinking and drug use again between 2006 and 2008.  In December of 2009, he was taken into custody for an emergency detention when a friend called police to report that Attorney Linehan was very intoxicated and was making threats to harm himself or others.  He was admitted to Mendota Mental Healthcare Center.  Following a detention hearing, the court found the least restrictive level of care was on an outpatient basis, although the court expressed concern over threats that had been made.  The court ordered daily breathalyzer sampling to ensure that Attorney Linehan remained sober and, if he could not, he would be taken into custody. 

The court

We agree with the referee that, although this court's cursory 1989 order revoking Attorney Linehan's license to practice law by consent did not explicitly state that the revocation was due to a medical incapacity, the petition for voluntary revocation clearly identified medical incapacity as the primary driving force behind Attorney Linehan's decision to relinquish his law license.  Accordingly, we deem it appropriate to treat his petition for reinstatement of his license as having been filed under SCR 22.36.  We further conclude that the referee's findings support a determination that Attorney Linehan has met his burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence that his medical incapacity is removed and that he is fit to resume the practice of law.  We agree that conditions on Attorney Linehan's license to practice law are necessary to ensure that he continues to receive appropriate treatment. Finally, we deem it appropriate to require Attorney Linehan to pay the full costs of this proceeding, $15,714.12.

(Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

"Abysmal" Cooperation With Bar Investigation

An attorney's misconduct in four client matters has resulted in a five-month suspension by the Wisconsin Supreme Court.

Attorney Kaupie was licensed to practice law in Wisconsin in 1999.  He resides in Wausau.  Attorney Kaupie's license has been administratively suspended since October 31, 2011, for his failure to pay mandatory State Bar dues and his failure to file a trust account certification, and since June 12, 2012, for failure to comply with continuing legal education requirements.  In addition, on March 15, 2012, this court temporarily suspended Attorney Kaupie's license for his willful failure to cooperate in Office of Lawyer Regulation (OLR) investigations concerning his conduct.  He has not previously been the subject of disciplinary proceedings.

On sanction

 As the referee observed, abandonment of clients, especially those who are vulnerable due to incarceration and indigency, is a serious matter and Attorney Kaupie's cooperation with the ensuing investigation was "abysmal."  The referee was mindful, however, that Attorney Kaupie had no prior disciplinary history and that Attorney Kaupie acknowledged complete culpability for his misconduct.

The stipulation discloses that in 2009, when this misconduct commenced, Attorney Kaupie was a sole practitioner with no office staff, practicing primarily in the area of criminal defense.  That year, Attorney Kaupie's mother, who suffered from Alzheimer's disease, experienced declining health.  Attorney Kaupie spent considerable time caring for his mother, whose condition increasingly needed constant supervision.  The stipulation discloses that Attorney Kaupie essentially stopped practicing law to care for his mother, who passed away in November 2014.

The court lifted the 2012 suspension for failure to cooperate in the bar's investigation. (Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Censured For Neglect; Client Sought Divorce in 1994

Public censure was imposed on an attorney who had neglected a divorce client's matter for many years and despite repeated assurances that he would secure the relief sought.

The charges against respondent relate to his representation of a woman (AW) who retained his firm to file for a divorce in 1994. AW paid the firm a retainer fee of $3,750. Respondent initially performed substantial work on the matter, including the preparation of a summons and complaint, an omnibus motion for pendente lite relief, preparation of a net worth statement, and several drafts of a separation agreement. During the course of the representation, however, AW's husband discharged his counsel and repudiated a proposed stipulation of settlement to which his counsel had agreed. At that point, the matter ceased to move forward.

In 2001, AW filed her first complaint against respondent, alleging that he had neglected her matrimonial matter. In response to that complaint, respondent admitted to the Committee that he was to blame for AW's failure to obtain a divorce judgment up to that point, and the Committee issued a letter of admonition, dated September 10, 2002, finding that respondent had neglected a client matter. The letter directed respondent "to complete [AW's] divorce at the earliest opportunity at no additional charge." In 2003, the matter was still unresolved, and AW filed another complaint against respondent, to which he responded with the representation that he was working on completing it. Based on that representation, the Committee closed the investigation. The matter continued to languish, however, leading AW to file a third complaint in 2006, the investigation of which was again closed based on respondent's assurances that he would complete the divorce. Finally, in 2010, with the divorce still not final, AW filed the complaint from which the present motion stems.

As previously noted, respondent concedes that, as found by the Hearing Panel, he is guilty of neglect, failing to refund an unearned fee, conduct prejudicial to the administration of justice, and conduct reflecting adversely on his fitness as a lawyer. This leaves for decision only the question of the appropriate sanction. The Hearing Panel amended the Referee's recommendation of a 30-day suspension to one of 60 days. Respondent asks us to impose a public censure. As previously noted, the Committee asks only that this Court impose a sanction that we deem just and proper.

The New York Appellate Division for the First Judicial Department chose censure over suspension

We find that, on balance, the facts of this case favor public censure over a brief suspension. As this Court has observed, "public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action" (Matter of Johannes, 66 AD3d 39, 41 [1st Dept 2009]). Apart from this matter, respondent has an unblemished disciplinary record over a career of approximately 30 years. Further, a number of mitigating factors weigh in respondent's favor. As noted, his neglect was confined to a single matter and was not accompanied by any other egregious misconduct. During the period at issue, he experienced serious family and professional difficulties, including medical crises and deaths of people close to him. Respondent has fully cooperated with the Committee. He has admitted his misconduct and ultimately refunded his fee to AW. He has also taken steps to ensure that he will not neglect matters in the future, such as installing a better computer case-tracking system and increasing the frequency of his firm's comprehensive case progress meetings. Finally, we are persuaded of the sincerity of respondent's expression of remorse.

(Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

School Fund Thefts Lead To Resignation

An attorney under investigation for misuse of funds had his resignation accepted by the New York Appellate Division for the First Judicial Department.

Respondent is currently the subject of an investigation by the Committee arising from a January 2015 complaint filed by the president of a school. The complaint alleged that in February 2011, respondent was entrusted with $867,133 in escrow for the school, and then withdrew approximately $496,000 from escrow over the following four years without the school's consent, knowledge or authorization.

This Court has previously accepted the resignation of attorneys under investigation for misappropriation of client funds from escrow (see Matter of Johnson, 125 AD3d 123 [1st Dept 2015]; Matter of Scher, 123 AD3d 162 [1st Dept 2014]). Respondent's counsel has submitted an affirmation wherein he concurs in the relief sought by the Committee.

He had previously been censured for escrow violations by the Second Department

We note that the respondent was new to private practice at the time the subject misconduct occurred, having only been in private practice since 2009, and that he had no prior experience with an escrow account.   The subject real estate transaction was his first such transaction, as was his receipt of escrow funds.   The evidence reveals that the subject misconduct stemmed principally from the respondent's mismanagement of his accounts, and his improper escrow practices, for which he was separately cautioned.   Moreover, the respondent was suffering from serious health problems at the time, which distracted him from properly managing his accounts.

In light of these particular and unique circumstances, including the fact that the subject misconduct preceded the issuance of the Letter of Caution dated July 8, 2011, we conclude that a public censure is warranted.

Lesson not learned. (Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)