Wednesday, November 19, 2014

Lawyers, Guns And Suspension

An attorney who had provided a firearm to a convicted felon has been suspended for six months by the Maryland Court of Appeals.

The court had previously remanded the matter

On January 24, 2014, in Reno I...we held that Sandra Lynn Reno (“Reno”), Respondent, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) and 8.4(a) (Violating the MLRPC) by circumventing the law and giving a handgun to a former client who, as Reno should have known, could not legally possess a regulated firearm, despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved the former client’s application to buy the same kind of handgun. Instead of determining an appropriate sanction on our own initiative, we g[a]ve Reno and the [Attorney Grievance] Commission [(“the Commission”), Petitioner,] the opportunity to recommend a sanction[.]” Reno I, 436 Md. at 512, 83 A.3d at 786.

As to sanction

Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens’s application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer’s failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.

(Mike Frisch)

November 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Incomprehensible Hodgepodge Dooms Malpractice Suit

The Montana Supreme Court affirmed the grant of summary judgment to the defendant in a legal maplractice case.

The pro se plaintiff sought a modest $12 million in damages but failed to identify an expert and gave insufficient responses to discovery requests.

Wylie’s complaint against Balaz was over forty pages long and asked for millions of dollars in damages. The District Court found, however, that the complaint “contains no discernable facts in support of her allegations of legal malpractice” and that Balaz’s discovery requests were “appropriate questions” in a legal malpractice case. Any party to civil litigation has an obligation to provide required responses to discovery requests, and yet after almost a year and an order from the District Court, Wylie did not answer “the most basic discovery requests to show that she had any evidence in support of her claim.” Wylie simply re-served her first incomplete and inadequate discovery responses, but included additional material that the District Court described as a “hodgepodge of sheets of paper that are not identified in any way, not specifically referenced to any discovery answers, and all of which are totally incomprehensible.”

(Mike Frisch)

November 19, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Wrong Path

The former prosecuting attorney for Washakie County has been suspended for 30 days by the Wyoming Supreme Court.

The ethics issues arose as a result of an earlier stipulated private reprimand for a violation of Rule 3.8(b)

The Board of Professional Responsibility issued a private reprimand to a prosecuting attorney who met with several minors and their parents following an incident in which law enforcement persoimel discovered the minors after hours on school property, mixing toilet bowl cleaner with balls of aluminum foil in plastic bottles, which led to a chemical reaction that caused the bottles to burst or explode, making a loud noise. The prosecutor told the minors and their parents that they could be charged with felonies or misdemeanors and perhaps federal charges and may be subject to incarceration. The minors cooperated fully with the prosecutor and freely admitted their involvement. School district officials were contacted but declined to pursue school district discipline actions...

The prosecutor agreed to pay an administrative fee of $500 and costs of $50 to the Wyoming State Bar, and to obtain an additional three hours of CLE in ethics.

The problem here was the $550 fee and costs.

She sought to have the county pay the assessment without disclosing that it involved a penalty against her. She failed to communicate with her client (the county), engaged in a conflict of interest and dishonesty.

Here, the attorney was remorseful and acknowledged the misconduct.

She must pay the $550 and attend a bar seminar called Pathways to Professional Conduct. (Mike Frisch)

November 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Assisting Unauthorized Practice

An attorney who allowed a suspended attorney to practice law has been suspended for one year by the Delaware Supreme Court.

The web of the matter is a somewhat tangled one.

The attorney suspended here was on disciplinary probation as a result of problems with tax obligations.

He also had served as practice monitor for the suspended attorney who engaged in the unauthorized practice.

After the two-year suspension of the attorney

Martin testified that, although he knew Feuerhake was suspended, he never read the Court’s suspension order. The record reflects that Feuerhake researched and drafted briefs in several of Martin’s employment cases. For those cases, Feuerhake would submit an invoice, and Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to work as a paralegal on the Burns and the Barkes litigation, which he and Martin had been co-counsel on prior to his suspension. For those two matters, Feuerhake did not receive compensation on an hourly basis. According to an email Feuerhake sent to Martin in September 2011, the two men were continuing, with respect to those two cases, to operate in accordance with the fee agreement they had reached when Feuerhake was licensed to practice law, namely that Martin would receive 60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the email reflected that David Facciolo would receive 20% of the fee because he had referred the Burns matter to Feuerhake. Therefore, Martin’s and Feuerhake’s percentages were to be reduced to 48% and 32%, respectively.

Feuerhake met with clients and participated in proceedings.

The court

In this case, there is substantial evidence in the record to support a finding of Martin’s knowing misconduct. First and foremost, Martin knew that Feuerhake was suspended, yet he willingly allowed Feuerhake to move into his office space and continue to work on cases for him as a paralegal without reading the Court’s suspension order and determining the restrictions on Feuerhake’s ability to work for Martin as a paralegal. A lawyer with Martin’s experience, especially one with Martin’s own recent disciplinary history, would have known that the Court’s suspension order was publicly available and should have consulted it, which is precisely what Martin did when he was asked to hire another suspended lawyer, Ron Poliquin, to work for him as a paralegal.

The court rejected the Office of Disciplinary Counsel's call for disbarment, concluding that the misconduct was insufficiently grievous to warrant that sanction. (Mike Frisch)

November 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Air Of Contempt

The Oklahoma Supreme Court has suspended an attorney for two years and a day for convictions in a series of criminal matters.

He pled guilty to a felony and multiple misdemeanors.

One offense drew particular concern from the court

Hart's guilty pleas to multiple charges of violating a victim's  protective order reflects a willful indifference for judicial orders, and  therefore, a disregard for the rule of law. The remaining charges, although not  directly related to following a court order or Hart's professional practice,  nevertheless reflect an air of contempt for the rule of law.

(Mike Frisch)

November 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Porn Addicted Attorney Indefinitely Suspended In Ohio

An attorney convicted of felony possession of child pornography has been indefinitely suspended by the Ohio Supreme Court without credit for time served since his 2007 interim suspension.

The court described the facts

Over the course of his legal career, Ballato was fired on three separate occasions for using office computers to view internet pornography. He voluntarily enrolled in a six-week residential treatment program for sexual addiction in 2002—although he did not believe that he had a problem at that time—in an effort to save his first marriage. After the marriage ended the following year, he struggled to cope with the divorce and his former wife’s efforts to curtail his visitation with their young son.

Although Ballato participated in some group counseling, he continued to view pornography and remained in denial of his addiction. In 2004, he responded to an online advertisement for “amateur pornography for sale,” and in the course of an e-mail exchange, the seller revealed that the offer was for child pornography. Ballato placed an order and mailed a partial payment for the magazines. Although he testified that he later decided not to complete the transaction, he did not cancel the order. On October 4, 2004, the magazines were delivered by an undercover postal inspector to Ballato’s home while he was at work. Shortly thereafter, federal officers arrived and conducted searches at both his home and office.

The officers found an abundance of adult pornography and three images of child pornography on Ballato’s office computer. At the panel hearing, Ballato testified that he had requested and received the images of child pornography online by instant message. He deleted them shortly after receiving them and reports that he did not use the images for sexual gratification. He reported that his sexual preference is adult women. Although he acknowledged that he developed a curiosity about teenage girls in pornography, he denied having any sexual interest in prepubescent children.

The attorney served 43 months for the ensuing conviction.

He is involved in a twelve step recovery pregram called Sex and Love Addicts Anonymous.

One dissenting justice would grant credit for time served; two would disbar. (Mike Frisch)

November 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

The Law Of Double Parking

The double parker is not always responsible for any accident that results from being double parked, according to a decision from the jurisdiction most likely to deal with double parkers.

The New York Appellate Division for the First Judicial Department affirmed summary judgment for the double parker

The fact that a vehicle is double parked "does not automatically establish that such double parking was the proximate cause of the accident" (DeAngelis v Kirschner, 171 AD2d 593, 595 [1st Dept 1991]). Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes...

The record demonstrates that plaintiff's vehicle was double parked on a one way street. Defendants' vehicle, moving in the same direction, successfully passed plaintiff's vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants' vehicle drove in reverse in an erratic manner and struck the front of plaintiff's car, which was stationary at all times. According to plaintiff, while defendants' vehicle was moving in reverse towards her vehicle, she had her foot on the brake and sounded her horn. Defendants' vehicle did not stop, and plaintiff had no time to react before the collision. After the accident, the driver of defendants' vehicle told plaintiff that he was sorry, that the accident was his fault, and that he was having an argument with his passenger and had accidently backed up into plaintiff's vehicle.

No mention whether George Costanza had anything to do with this. (Mike Frisch)

November 18, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Zealousness Run Amok

A three-year suspension has been imposed by the Rhode Island Supreme Court for an attorney's serious misconduct in four family law matters.

The attorney was admitted in 1987, had no prior discipline and admitted the violations.

Among the violations was his obtaining an ex parte order to permit a client to remove items from a family home on the false representation that the opposing party agreed to the relief.

The court

We do find many aggravating factors. The respondent committed multiple acts of misconduct in four separate cases. There is a persistent pattern of deceiving judges before whom the respondent appeared, doing so without the knowledge of or notice to opposing parties and their attorneys, and obtaining orders to benefit his clients which they were not entitled to receive. The respondent did not just prejudice the administration of justice, he sabotaged it. By all accounts the respondent is an experienced member of the bar and a zealous advocate for his clients. However, in this matter we find that his substantial experience is an aggravating rather than a mitigating factor. The respondent is well-aware of the proper procedures to follow to represent the interests of his clients without violating the rules. He chose a course of action to win at all costs, and he repeatedly disregarded the procedural and ethical rules designed to provide fair hearings in our courts.

The court noted that the attorney offered no explanation for his ethical violations. (Mike Frisch)

November 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ticket Off The Bench

Kathleen Mahoney reports on the web page of the Ohio Supreme Court

Harland H. Hale, who served on  the Franklin County Municipal Court, has been suspended from practicing law for  six months.

In a 5-2 decision, the Ohio  Supreme Court determined that Hale improperly dismissed his personal attorney’s  speeding ticket, tried to cover up that misconduct, and falsely testified in a  disciplinary hearing that he had not represented clients in the months after he  resigned from the bench.

This is the second time the court  has considered the disciplinary complaint against Hale. In November 2013, the  court returned the case to the Board of Commissioners on Grievances &  Discipline to conduct further proceedings and to consider a harsher sanction  than the six months the board had originally recommended. After  reconsideration, though, the board again proposed a six-month suspension.

Hale was a judge in the municipal  court’s environmental division and also served in rotation as a duty judge,  assisting with criminal arraignments, traffic violations, and other court  matters.

In November 2011, Patrick Quinn,  Hale’s attorney in a civil lawsuit, received a speeding ticket. Quinn did not  show up for his arraignment in December, and an arrest warrant was issued. Quinn contacted Hale, the duty  judge at that time, asking to be arraigned without going to court.

When Hale reviewed the case file,  he completed a form stating that the prosecutor was dismissing the charge against Quinn and the court was assessing no fines or costs.  However, Hale had not discussed the matter with the prosecutor.

Following a media inquiry around  April 2012, the city prosecutor began investigating how the case had been  handled. Hale then contacted Quinn and the prosecutor, asking them to sign off  on vacating the dismissal. When the prosecutor refused, Hale vacated the  improper dismissal on his own and recused himself from the case.

The state’s Disciplinary Counsel  filed a complaint against Hale the next spring, and Hale resigned from the  bench on May 24, 2013. At a disciplinary hearing in March 2014, Hale stated that  after he stepped down he had not acted as an attorney on legal matters until  late November or early December 2013. A few months later, however, he notified  the board’s panel reviewing his case that he had actually represented five  clients during that time.

Of the seven alleged violations  of judicial and attorney conduct rules, the disciplinary board voted to dismiss  one that prohibits actions that adversely reflect on a lawyer’s fitness to  practice law. After reviewing similar disciplinary cases in the state, the  board again concluded that a six-month suspension was appropriate. It reasoned  that Hale’s dishonesty related to only one incident and noted that he  voluntarily gave up his job.

The Disciplinary Counsel objected  to the board’s dismissal of one alleged rule violation and to the proposed  sanction. Hale had argued he had served a self-imposed suspension after he  resigned from the bench by not working on legal matters, even though he later  admitted that was not true. Counsel contended that Hale’s false testimony was an attempt to keep the court from  imposing a harsher punishment.

In an opinion written by Justice  William M. O’Neill, the court found that Hale violated all seven conduct rules,  including the lawyer fitness provision. Justice O’Neill stressed that Hale’s  actions were serious ethical violations and that his false testimony was  unacceptable, and then imposed a six-month suspension.

He noted several factors to  support a suspension of this length: “(1) Hale practiced law for approximately  30 years without incident, (2) his misconduct was limited to a single case to  which he had a personal connection, (3) justice was ultimately served in that  matter, (4) … no litigants suffered permanent harm as a result of Hale’s  misconduct, and (5) Hale acknowledged that his actions were not appropriate and  voluntarily resigned from the bench within one month of [the Disciplinary Counsel’s]  complaint being certified to the board.”

Joining Justice O’Neill’s opinion  were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and  Judith L. French.

Chief Justice Maureen  O’Connor and Justice Judith Ann Lanzinger dissented and would have imposed a  one-year suspension.

2013-1622. Disciplinary  Counsel v. Hale, Slip  Opinion No. 2014-Ohio-5053.

Video of the oral argument is linked here. (Mike Frisch)

November 18, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Damage, Destruction, Division = Permanent Disbarment

A Louisiana Hearing Committee has recommended that former Congressman William J. Jefferson suffer permanent disbarment as a result of his criminal conviction.

He is presently serving a prison sentence for his crimes.

On the merits

The Committee does not dignify Respondent's contention that his conduct was undertaken in good faith with a response. The Jury Verdict is an adequate response of its own.

The committee on sanction

Respondent's long history as a member of the bar, his obvious intelligence, success as a practicing attorney, his election and re-election by his constituents twelve times, and his distinction as both an attorney and public servant was an unparralled success story for an African-American, all as noted by Respondent in mitigation point 7. His failure to adhere to his own personal accomplishments, maintain his reputation, the damage occasioned upon his constituents, as well as our profession, has resulted in immeasurable damage, destruction, and division among us all.

(Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

ADHD Mitigates Sanction

The Pennsylvania Supreme Court has imposed a two-year suspension nunc pro tunc to February 2013 and probation for two years on reinstatement of an attorney with a prior disciplinary record.

The Disciplinary Board found the prior and present misconduct was caused by Attention Deficit Hyperactivity Disorder

Without question the most disturbing aggravating factor in this case is Respondent's prior record of misconduct. Respondent received two informal admonitions in 1988, a private reprimand and probation for one year with a practice monitor in 2005 and most seriously, a Public Censure in 2009. All of Respondent's prior discipline resulted from acts of misconduct similar to those that are the subject of the instant case, including failure to file briefs, failure to communicate with clients and failure to diligently pursue client matters.

Unfortunately, the underlying psychiatric disorders that caused Respondent's urrent misconduct were first diagnosed long after his prior misconduct. In retrospect it s obvious that the disorganization and lack offocus that resulted in Respondent's prior cts of misconduct were caused by his then undetected ADHD and depression. In fact, Respondent testified that on prior occasions he was counseled to work harder and be more responsible. Of course, without proper medical treatment for his underlying psychiatric disorders, Respondent was basically incapable of changing his behavior. Even so, we cannot overlook Respondent's prior record, especially his censure by the Supreme Court, and consider it a substantial aggravating factor.

The board noted that an "army" of favorable witnesses tesrtified on the attorney's behalf. He must meet several conditions including treatment. (Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

West Virginia Village By the Sea

Justice Benjamin has now filed his concurring and dissenting opinion from a decision of the West Virginia Supreme Court of Appeals last month to deny a writ of prohibition to the state Attorney General.

The holding of the majority

In this proceeding, we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.

The result inspired the following tale from Justice Benjamin

 ONCE upon a time, there was a village by the sea. Some villagers fished the sea in their trawlers. Others were content to cast their lines in a vast freshwater inland lake where fish were abundant. Yet other villagers were farmers, who worked the land and who used the lake to water their livestock. All the villagers were happy. Food was plentiful. No one went hungry. Villagers enjoyed recreational time at the beach, at the lake, and at the parks. Life was good for the village by the sea.

One day, the lead sea captain of the sea trawlers noticed that sea conditions had become such that he now had more fishermen than needed to meet his quotas for fish. At the same time, he noticed that the lake anglers were often unable to meet their quotas. The lead sea captain proposed that several of his fishermen be transferred to the lake, on an as-needed basis, to assist the lake anglers.

Upon learning of this, the farming boss immediately objected, maintaining that sea fishing was sea fishing and lake fishing was lake fishing. He asserted that it was simply not proper for the chief lake angler to supervise sea fishermen who, though competent fishermen, had been trained their entire lives by others in the net-method of fishing, not the line-method of fishing. The farming boss warned that if the lead sea captain insisted on the transfer, the farmers would construct irrigation ditches to their fields from the lake, thereby reducing the lake’s fish population to a level compatible with the quota abilities of the lake anglers.

A conflict having arisen in the village, the matter was taken before the village elders. Determined to get to the bottom of the controversy that was disturbing the village’s customary calm, the Elders asked if any sea fishermen had yet been transferred to the lake. The lead sea captain and the chief lake angler assured that such was not the case. The Elders then inquired whether digging had commenced on the irrigation ditches. The farming boss responded that construction of irrigation ditches had not begun, being merely in the planning stages. The Elders exchanged glances among themselves, and then proclaimed—partly in exasperation and partly in relief—"There is no current conflict here! Everything is running along smoothly, just as it always has been."

The representatives of the various occupations heeded the Elders’ proclamation, and, indeed, all the villagers in attendance were constrained to admit that the sea might thereafter grow less jealous of its bounty, such that no fishermen need ever be transferred and no irrigation ditches need ever be dug. Indeed, everything probably had been premature. Just as the proceedings were about to adjourn, however, the Elders conferred among themselves and announced that a fence would be built all the way around the lake, with but two gates for which the farming boss and the chief lake angler would be given the only keys. At this, the lead sea captain leapt to his feet and exclaimed, "But this is unnecessary. Our fishermen will have no place to take their families on the weekends! Other villagers will no longer be able to enjoy the lake. With all respect, learned Elders, why would you insist upon such an unnecessary and extravagant thing when there is no current need?" A reverential hush fell as the question lingered in the room. "Because," the Elders replied nonchalantly, "we know what is best for all of you, we know what you need, we are quite good at building fences, and this is what is needed for life to be good in our village by the sea."

He concurs in the result but notes

Notwithstanding the unassailable case it makes that it has no authority to render an advisory opinion, the majority proceeds to embark on that very journey. The trip is justified, according to the majority, because the scope of the Attorney General’s authority is "collateral" to what it describes as the ultimate issue before us, i.e., whether the exercise of such authority would violate the ethics rules. With all respect to my colleagues in the majority, the ultimate issue before us has been revealed as whether we have jurisdiction of the Attorney General’s petition. Having answered that question in the negative, we are bound to answer no others.

(Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Chided For "Slut" Reference

The Vermont Supreme Court has reversed a sexual assault conviction and chided the prosecutor for language in rebuttal argument.

The defense was consent based on the theory that the victim engaged in revenge sex after a disagreement with her boyfriend.

During the State’s rebuttal, the prosecutor claimed that the defense had presented a version of events which, to be believable, required the jury to conclude that complainant “would go off and be a slut.”  

While the court found that admission of other testimony was not harmless error, it noted

Because this error alone requires reversal and remand for a new trial, we do not reach defendant’s other arguments.  Although we do not decide the case on these grounds, however, we would be remiss not to mention the offensive language—namely, the use of the term “slut”—used by the State during closing argument.  We should not need to remind the state’s attorney’s office that this word has no place in the Vermont courts.  Moreover, the argument underlying the State’s use of the term was misleading and inaccurate.  From our reading of the transcript, defendant did not improperly malign complainant’s character: the State did, by drawing sexist inferences—that, if the encounter was consensual and motivated by complainant’s fight with her boyfriend, then she must be a “slut”—from defendant’s version of the facts.  It has long been improper for defendants on sexual assault charges to characterize complaining witnesses in these terms.  The State was on abundant notice that its argument was equally improper.

(Mike Frisch)


November 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Former Hearing Panel Member Gets Stayed Suspension

The Pennsylvania Supreme Court accepted the consent sanction of a stayed suspension with probation for two years in a case in which the attorney had neglected cases over a two-year period, had money sanctions imposed upon him and paid the sanctions (roughly $65,000) out of firm accounts without telling his partner or the client..

The attorney concealed his conduct from his partner and the client, Wachovia Bank. Wachovia found other counsel when the defaults and sanctions came to light. Also later revealed were additional misuses of the firm operating account.

The attorney has repaid the firm about a third of the amount that he misused.

The disciplinary board

The instant matter does not involve the misappropriation of client funds; rather it involves the "misdirection" of operating funds and subsequent misrepresentation to Respondent's partner of the true  purpose of the use of the operating funds, which was to satisfy sanctions orders resulting from Respondent's neglect.  Furthermore, Respondent attempted to deceive the client, Wachovia, into believing that Respondent's billings were for services rendered rather than for services and sanctions.

Mitigating: The attorney self-reported the misconduct and suffers from depression.

Aggravating: The attorney had served as a member of a disciplinary hearing committee.

Justice Stevens dissented and would reject the consent discipline. (Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 14, 2014

A Beautiful Result

The New York Appellate Division for the First Judicial Department has affirmed the dismissal of claims brought by Beautiful Mind auther Sylvia Nasar against Columbia University.

Plaintiff has no standing to sue for money damages arising from a breach of the grant agreement since the funds belong entirely to defendant (see  N-PCL 513). She does not fall within the "special interest" exception to the general rule (see Alco Gravure, Inc. v Knapp Found. , 64 NY2d 458, 465-466 [1985]). Her attempt to have the bulk of the corpus paid to her personally places her in conflict with future, undetermined beneficiaries of the fund (see id. ; Citizens Defending Libraries v Marx , 2014 NY Slip Op 31449[U] [Sup Ct, NY County May 30, 2014]). Nor is plaintiff a third-party beneficiary of the grant agreement (see Oursler v Women's Interart Ctr. , 170 AD2d 407 [1st Dept 1991]). The agreement vests full discretion to choose the holder of the endowed chair, and to spend monies from the fund, in defendant. By the express terms of the agreement, disputes or changes to the grant are to be decided by the donor and defendant. Thus, there is no indication in the grant agreement that plaintiff is an intended rather than an incidental beneficiary.

As plaintiff has no interest in the funds provided by the grant agreement, she cannot state a cause of action for conversion or unjust enrichment.

(Mike Frisch)

November 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Incompetent Death Penalty Defense Leads To Disbarment

In a rather unusual case, the Kansas Supreme Court has disbarred an attorney for ethical violations committed in the course of defending a client in a death penalty case.

Also unusual was the attire of the attorney in oral argument before the court. The Topeka Capital-Journal reported that he came dressed as Thomas Jefferson.

Dressed as Thomas Jefferson, 18th century Revolutionary War patriot, lawyer Ira Dennis Hawver faced the Kansas Supreme Court on Friday to answer disciplinary findings he provided ineffective assistance of counsel to a defendant sentenced to death.

Video here.

The attorney had no prior experience in death penalty cases. He devoted approximately 60 hours to preparing the case and had not tried a murder in twenty years.

in the proceedings, he repeatedy referred to his client as a "professional drug dealer" and a"shooter of people."

He was also distracted by his campaign for Governor.

His claim that his conduct was protected by the First Amendment failed to persuade

Many of the deficiencies the panel found involved nonexpressive conduct, including Hawver's failure to investigate for the guilt and penalty phases of Cheatham's case, inadequately preparing for trial, failure to file an alibi notice, failure to seek out or accept financial assistance for trial preparation, and failure to devote sufficient time to the case. The free speech guarantee extends to the spoken and written word and to conduct "'sufficiently imbued with elements of communication . . . .'" Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). But whether conduct is so imbued depends on whether the actor intended to convey a particular message and whether "'the likelihood was great that the message would be understood by those who viewed it.'" Johnson, 491 U.S. at 404. The nonexpressive conduct in this case clearly was not intended to convey any particular message, so it is not protected speech. Imposing attorney discipline for this nonexpressive conduct does not implicate First Amendment concerns.

On the other hand, some of the deficiencies involved expressive conduct, including telling potential jurors that Cheatham was a drug dealer and had previously been convicted of voluntary manslaughter for shooting and killing another person; telling the jury during the guilt phase it would take "superhuman" efforts to see past Cheatham's criminal history to find him not guilty; and telling the jury during the penalty phase that it should execute the person who committed the crimes for which it had just found Cheatham guilty. But this expressive conduct also was not protected speech.

A lawyer who undertakes a duty to act only in the client's best interests possesses no First Amendment interest in such in-court speech.

The court

In addition to the injury to the legal system found by the panel, it is important to note Hawver's misconduct actually injured Cheatham, who was "improperly advised by [an] unqualified lawyer[ ]" resulting in a deprivation of Cheatham's constitutional right to assistance of counsel... Moreover, Hawver's inadequate performance—particularly as to the penalty phase of Cheatham's trial—might have caused or contributed to the jury sentencing Cheatham to death.

In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel's conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.

But in this court's view the essentially uncontroverted findings and conclusions regarding Hawver's previous disciplinary history, his refusal to accept publicly financed resources to aid in his client's defense, and his inexplicable incompetence in handling Cheatham's case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer's course of conduct demonstrates "the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client"). We hold that disbarment is the appropriate discipline.

The client was granted a new trial last year.

From the order reversing the client's conviction

...we must determine whether this conflict adversely affected the adequacy of Hawver's performance. Cheatham maintains the financial disincentive under which Hawver labored was illustrated by his failure to adequately investigate and prepare the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We agree.

Hawver estimated he spent around 200 hours in defense of Cheatham. This is appallingly low for a death penalty case defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to retain an investigator or to assemble a defense team to adequately present Cheatham's case due to an unwillingness to invest the resources this would take. As a result, potential defense witnesses were never interviewed and possible leads, such as an unexplained foot print at the crime scene, were never pursued. Hawver admitted openly that he had no intention of spending his own funds to prepare the case and no intention of taking time away from his other cases or his political activities. Hawver obviously realized the questionable nature of his inattention because he had Cheatham acknowledge it in writing. In sum, Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy.

Hawver also failed to make himself available as an alibi witness for Cheatham by serving as his counsel. Cheatham notes that if called to testify, Hawver would have explained that on the day before the murders, Hawver had advised Cheatham to leave town because Hawver believed the police were looking for an excuse to arrest Cheatham. Similarly, Cheatham would have testified that he followed his counsel's advice and left for Chicago on the afternoon of December 13. And Hawver most certainly could have provided a measure of credibility to Cheatham's claim that he was in or on his way to Chicago at the time of the murders by taking the stand and recounting to the jury how he had advised Cheatham to get out of town. But that line of testimony was foreclosed because Hawver was serving as trial counsel.

Even so, Hawver attempted during closing argument to present this evidence by stating, “Now when I first got this case, I got a call from Phillip Cheatham in Chicago-“ but the State objected before he could finish because Hawver's argument was beyond the scope of admitted evidence. Clearly, Hawver recognized too late the contribution his testimony could have brought to the defense and attempted unsuccessfully to present it. But becoming an alibi witness would have required him to withdraw from the representation and forego any claim to a fee or the public attention garnered from serving as trial counsel in a double homicide trial.

We hold that under the circumstances presented the fee arrangement in this death penalty case created a conflict of interest for Hawver that adversely affected the representation of Cheatham in multiple respects. And we hold further that it is not necessary for Cheatham to show that he was actually prejudiced by Hawver's failure to adequately pursue his defense or withdraw and provide alibi support. Cheatham's convictions, therefore, must be reversed and the case remanded for a new trial.

(Mike Frisch)

November 14, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Lack Of Malpractice Insurance Does Not Turn LLC Into General Partnership

The New Jersey Appellate Division has reversed a lower court order and dismissed a legal malpractice claim.

Under the facts of this case, [attorney] Ward argues that he is shielded from liability as a partner in a limited liability partnership ("LLP") and is therefore not vicariously liable for the alleged legal malpractice of his former partner, defendant John Olivo. Ward also contends that he is otherwise entitled to a dismissal of the complaint because plaintiff Mortgage Grader, Inc. ("MG") failed to serve an affidavit of merit ("AOM") on Ward or substantially comply with the AMS.

The primary issue is whether Ward loses his liability protection as a partner in an LLP if the LLP failed to purchase a tail insurance policy. We disagree with the motion judge that such a sanction is authorized and hold that when attorneys practice law as an LLP, and the LLP fails to obtain and maintain professional liability insurance as required by Rule 1:21-1C(a)(3), the LLP does not revert to a general partnership ("GP") under the Uniform Partnership Act ("UPA"),


 if attorneys practice as an LLP, and the LLP fails to maintain malpractice insurance as required by the court rules, then the Supreme Court may terminate or suspend the LLP's right to practice law or otherwise discipline it. As currently written, however, the court rules do not authorize a trial court to sanction a partner of an LLP for practicing law as an LLP without the required professional liability insurance by converting an otherwise properly organized LLP into a GP.

(Mike Frisch)

November 14, 2014 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Complaint Filed In California Bar Controversy

The California State Bar has been sued by its former executive director Joseph Dunn.

The complaint alleges that Senator Dunn filed a series of whisteblower notices last November that disclosed serious ethical breaches, prosecutorial lapses and fiscal improprieties committed by State Bar President Craig Holton. "certain members" of the Board of Trustees and Chief Trial Counsel Jayne Kim.

The complaint was filed in the Superior Court of the County of Los Angeles. Dunn is represented by Geragos & Geragos. (Mike Frisch)

November 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Reprimand For Non-Compete Provision

The Indiana Supreme Court has imposed a public reprimand of an attorney who had contained a non-compete provision in an associate's employment agreement.

 In 2006, Respondent hired an attorney ("Associate") to work in his law office pursuant to an employment agreement. Respondent’s law practice focuses primarily on Social Security disability law. The employment agreement included a noncompete provision that prohibited Associate from practicing Social Security disability law for two years in the event his employment with Respondent was terminated.

In 2013, Respondent fired Associate. Thereafter, Respondent sent letters to Associate’s clients advising that Associate no longer worked at the firm and that Respondent would be taking over their representation, and in those letters Respondent included Appointment of Representative forms for the clients to complete in order for Respondent to replace Associate as the clients’ representative before the Social Security Administration.

Despite the foregoing, Associate continued to practice Social Security disability law after leaving the firm, and at least two of Associate’s existing clients chose to keep Associate as their lawyer. Respondent did not attempt to enforce the noncompete provision and, after the disciplinary grievances were filed against him, Respondent provided Associate with the files for Associate’s clients.

The court approved an agreed disposition. (Mike Frisch)

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

I'll Be Barred For Christmas

The Oklahoma Supreme Court has suspended an attorney until December 23, 2014.

The story

On April 29, 2013, the Respondent drove to the home of his former spouse, let himself into the home and began talking about his sadness over their divorce. An argument arose about a bicycle in the garage and a struggle ensued that caused a superficial injury to the his former spouse's leg. Neighbors called the police about the loud voices and [he] fled on foot when police cars began arriving in the neighborhood. He later returned and drove away, followed by the Tulsa Police Department. He refused to pull his vehicle over when requested and led the police on a high-speed chase. The officers used spike strips to slow the Respondent's vehicle. He left his vehicle and began to run from the police. He was apprehended by and resisted a canine police officer. He was arrested, treated at a hospital for dog bites and then taken to the Tulsa County jail.

The attorney pled guilty to four misdemeanors and was suspended on an interim basis as a result.

There was mitigation

In the present matter the Respondent sought treatment and has followed up his treatment by attending Alcoholics Anonymous in order to maintain his sobriety. No clients were harmed by his conduct and he has recognized the seriousness of his actions and is remorseful for the disrepute it brought upon the legal profession. The Cooley and Bernhardt and Burns cases involved felony sentences; the Respondent is serving deferred and suspended sentences for misdemeanor violations. Each of these cases concerns the discipline of a lawyer whose conduct outside the setting of his professional practice brought disrepute and harmed the public image of the profession. reported that he was employed by a public defender office.

Question: What can one do but resist a canine police officer who is apprehending you? You can't obey their commands. (Mike Frisch)

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)