Tuesday, August 5, 2014

A Note on Reading aspx Hearing Reports from the Louisiana Attorney Discipline Board

Mike Frisch has helpfully cataloged many instances on this site of state bars or their disciplinary authorities making it easier on people to see reports and read them. Or he has nicely ragged on ones that make it hard for no reason. Recently I have had more and more trouble reading the hearing committee reports and disciplinary board opinions from the website of the Louisiana Attorney Disciplinary Board, ladb.org. I don't think it's intentional on their part (they have been a really good souce of information in the past and don't seem to try to hide disciplinary information), and they may open easily on many attorneys' computers, but they don't open easily on mine. They used to download in a PDF format. Now they seem to default to opening on the website's own page instead of getting downloaded (and on mine that just freezes my computer). And if you do download it, it saves in a format ending in .aspx. At least on my computer, that opens as garbled data.

I searched on the internet and found that .aspx is an executable file format that one should be wary to open. I guess opening it within the board's website "viewer" pane is not a problem (if you can get it do that), but once it is downloaded it does look scary to me. But I also read that one can change the file extension from .aspx to .pdf and that new file can then be opened as a regular PDF. I did that and it worked. That of course would be the same procedure one would use to easily read a downloaded report from this site linked from the Louisiana site, since it would likely be "saved as" to the .aspx extension, assuming that just clicking on the link from our blurb does not work.

An appeal to LADB: could you just go back to having the files saved as PDFs? I think this is probably a case where the tech consultants made the site needlessly complicated and assume everyone has on their computers the same opening-up programs as they do. Well, everyone does have a PDF reader. And no one is too scared of just opening up a non-executable simple PDF.

One internet sites tells me: "If you've downloaded an ASPX file and expected it to contain information (like a document or other saved data), it's likely that something is wrong with the website and instead of generating usable information, it provided this server-side file instead." That is exactly what happens with me: when I download the file offered at ladb.org, it arrives as an .aspx file and not "usable information" until I change it to a PDF. Please, ladb, fix the "something is wrong" part?

UPDATE: The site works fine in IE and Chrome browsers. I mean, fine in the sense that you can download a PDF after viewing it in their viewing pane. Personally, I prefer not to have a site open up docs and the like for viewing just by clicking on the Respondent's name. But I recognize that there's no technological error in having it do that. I just like to be asked first whether it does something on my computer. But I can't say LADB is doing anything awful by going ahead and executing a script in a viewing pane by my clicking on the name of a Respondent. It just presents it as a view to the reader. I am not a big fan of that way of doing that, or not asking first whether one wants to have something run on my computer. So I admit I like PDFs as the main presentation. But this way certainly does allow PDFs to be downloaded in these two browsers, at least, and also in some people's Firefox (though not mine).

[Alan Childress]

August 5, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Prepared But Not Filed

A Cleveland attorney has been suspended from practice pending further proceedings by the Ohio Supreme Court.

The interim suspension was based on a federal felony criminal tax conviction.

The United States Attorney's Office for the Northern District of Ohio reported on the allegations

Attorney Ronald L. Rosenfield  was charged in an information with failing to report and pay approximately $196,832  of employment taxes announced United States Attorney Steven M. Dettelbach.   The case is assigned to United States  District Judge John R. Adams in Akron.   The unpaid taxes consisted of  income taxes and FICA taxes withheld from the  wages paid by his law firm,  Ronald Rosenfield Co., L.P.A., including his own wages, for the eighteen  consecutive calendar quarters from December 2006 through March 2011, according  to the information.  The information also  alleges that Rosenfield failed to report and pay an unspecified amount of  additional employment taxes for all of the prior quarters dating back to June  2001.

At all relevant times, Rosenfield retained a national  payroll firm, which prepared the law firm’s required employment tax returns for  him to file with the Internal Revenue Service.   Rosenfield, however, did not file any of those returns and made no  payments of the taxes reported on those returns, according to the information.  Moreover, the information alleges that  Rosenfield claimed credits on his personal income tax returns for his unpaid  income tax withholdings.

(Mike Frisch)

August 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Flying Blind

A rather unusual set of ethics charges was recently filed by the Illinois Administrator.

The complaint alleges that the attorney instituted frivolous litigation in connection with the Malaysian Airlines Flight 370 matter

As of the date this matter was referred to the Inquiry Board, no trace of the aircraft had been found, and no evidence had been recovered which indicated that it had crashed or had experienced any mechanical malfunction.

On March 25, 2014, Respondent, or someone acting at her direction, using the name "Monica R. Kelly," prepared and signed a Verified Petition for Discovery, pursuant to Illinois Supreme Court Rule 224, against the Boeing Company and Malaysian Airlines, and filed it in the Circuit Court of Cook County. The clerk of the Court docketed the matter and assigned it case number 2014L003408.

Under Illinois Supreme Court Rule 137, by signing the petition described...above, Respondent certified that she had read the petition and that, to the best of her knowledge, information or belief formed after reasonable inquiry, it was well grounded in fact and was warranted by existing law.

In the petition..Respondent alleged that she represented the estate of Firman Chandra Siregar ("Siregar"), that Siregar had been a passenger on Malaysian Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysian Airlines Flight 370.

...Respondent alleged that Siregar’s estate reasonably believed that Malaysian Airlines Flight 370 had crashed as the result of negligent design, manufacture, repair and maintenance of the aircraft by the Boeing Company.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence existed that Malaysian Airlines Flight 370 had experienced a mechanical malfunction, and that the evidence in fact showed that the aircraft had changed direction and had continued to fly for several hundred miles after its last contact with air traffic controllers.

In March 2014, at the time Respondent filed the petition described above, Illinois Supreme Court Rule 224 authorized the filing of such a petition "for the sole purpose of ascertaining the identity of one who may be responsible in damages," and Illinois courts had long held that a Rule 224 petition was not appropriate if the identity of any potentially-responsible defendant was known to the petitioner. Guertin v. Guertin, 204 Ill.App.3d 527 (3rd District, 1990); Roth v. St. Elizabeth’s Hospital, 241 Ill.App.3d 407 (5th District, 1993)

Respondent’s petition in case number 2014L003408 was frivolous, because Supreme Court Rule 224 did not permit the filing of such a petition where the "identity of one who may be responsible in damages" was known to the petitioner, and Respondent knew that the missing aircraft had been manufactured by the Boeing Company and that it was being operated by Malaysian Airlines when it disappeared. Respondent therefore had no need to discover the identity of a responsible party, and no basis for filing a Rule 224 petition.

On March 25, 2014, Respondent conducted news media briefings in Kuala Lumpur to announce the filing of her action against the Boeing Company and Malaysian Airlines and to claim that those entities were responsible for the disappearance of Flight 370.

On two occasions in 2013, the Hon. Kathy M. Flanagan, a Judge of the Circuit Court, had dismissed Rule 224 petitions filed by Respondent against aircraft manufacturers, on the basis that such petitions were not authorized by the rule, when the identity of a potential defendant was known to the petitioner.

On March 28, 2014, the Judge Flanagan entered, sua sponte, a memorandum opinion and order dismissing Respondent’s petition in case number 2014L003408, in which the judge found that the petition exceeded the scope of Supreme Court Rule 224, that it was baseless, and that Respondent knew that the filing of a Rule 224 Petition was inappropriate where the identity of a potential defendant was known.

Earlier coverage from the Chicago Tribune

Aviation litigation experts contacted by the Tribune agreed that while taking court action to preserve evidence in advance of a lawsuit can be an important step, filing such litigation before a plane had even been found seemed to be jumping the gun.

"It seems to be a legal gray area when we are operating without the plane," said Bruce Ottley, a professor and co-director of DePaul University's International Aviation Law Institute. "It certainly gets them attention to be first. ... But when you file it before we even have verified that the passengers are dead, it may be a little bit early."

It wouldn't be the first time the tactics of Ribbeck Law Chartered or its associates had drawn complaints. Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash.

(Mike Frisch)

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An Offer You Can Refuse

A criminal defense attorney who offered a witness $300 (and later $500) to not show up for a trial committed an offense worthy of disbarment, according to a recent report of a Louisiana Hearing Committee.

The criminal case involved a burglary where a gun was taken from a "raised double-shotgun house."

The hearing committee found that he came to a restaurant where the key witness was employed and offered him payment to drop the charges. The offer was increased on a second visit.

The hearing committee rejected the contention that the offer was intended as restitution rather than a bribe. They also found that the attorney's hearing testimony was false.

The witness told the prosecutor, who filed the bar complaint.

The accused attorney had called as a witness a lawyer who teaches trial practice at Tulane Law School. His own witness "testified that he never  would offer money to a victim to drop a case; that would be unethical." (Mike Frisch)

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Charged With Lack Of Diligence, False Statement

The North Carolina State Bar has filed ethics charges against a Johnston County Assistant District Attorney.

The attorney is alleged to have failed to make reasonably diligent inquiry into the availability of a crime lab report in a rape case. The charges were eventually dismissed when the lab report concluded that the sperm fraction from vaginal swabs did not match with the defendant.

Cocaine charges against that defendant were also dropped because he "had served more time awaiting trial than he could receive for conviction on the cocaine possession charge."

The attorney also is charghed with a false statement concerning the status of the DNA report.

The answer to the charges seeks dismissal. (Mike Frisch) 

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 1, 2014

Former Bar President Still Former Lawyer

The Ohio Supreme Court has denied the reinstatement petition of an attorney suspended  for a federal false tax filing conviction.

The  Plain Dealer reported on the conviction

Prominent Cleveland attorney Leslie W. Jacobs was sentenced Tuesday in U.S. District Court in Youngstown to one year and one day in federal prison for one count of filing false income taxes from 2004-2007.

Jacobs, a Harvard Law School graduate and former president of the Ohio State Bar Association, was also given an additional four months, less one day, of home confinement and ordered to pay a $10,000 fine...

The court's order states that the petitioner failed to comply with the requirements imposed by his suspension. (Mike Frisch)

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

Trending Away From Disbarment

An Illinois Hearing Board has recommended a suspension of nine months of an attorney who used a power of attorney to write himself checks from the account of an elderly woman.

His defense

Respondent, who had power of attorney for the property of his client, Eleanor Smith, acknowledged he used funds from Eleanor Smith's bank accounts but asserted he cannot be found to have committed misconduct because there was no attorney-client relationship between him and Eleanor Smith. He further asserted he was entitled to the funds as his fees. The Hearing Board rejected both of these assertions.

The committee concluded

Respondent admittedly met with Eleanor and her family, obtained information from them, accepted fees from Eleanor and advised Eleanor regarding the best method to protect her assets from further dissipation by her husband. Respondent also recommended that Eleanor sign the Agreement and give Respondent power of attorney for property. The Illinois Supreme Court has held that all of these activities constitute the practice of law...

Respondent admits he took money from Eleanor's accounts but claims he was entitled to it as fees. We find no evidence to support this assertion. Respondent was paid in full for the invoices he prepared for Eleanor. Even if he performed legal services after the last invoice date of October 2010, he has no documentation upon which to ascertain the amount of fees purportedly due to him. He did not produce work product or time records after October 2010, nor did he testify as to any work he performed for Eleanor after October 2010. Thus, there was no reasonable basis for the purported fees Respondent paid himself. At the time of hearing, more than two years after his representation of Eleanor ended, Respondent had yet to determine the amount of fees he claims he earned. This reinforces our determination that he has no basis for asserting he was entitled to the funds as fees. By converting the funds, Respondent failed to keep property in his possession in connection with a representation separate from his own property, in violation of Rule 1.15(a).

As to sanction

Respondent's misuse of his client's funds constitutes serious misconduct that warrants a period of suspension. There are several factors in aggravation. Respondent abused his position of trust for his own benefit at a time when he was in a precarious financial position and his elderly client was vulnerable and in poor health. We also consider the harm Respondent caused by his misconduct. He caused financial harm to Eleanor by dissipating the assets he was hired to preserve. He also caused Eleanor's family, who was dealing with Eleanor's failing health, to experience anxiety and stress when they learned of her unpaid bills. Additionally, Respondent's misconduct was not an isolated incident but a pattern of misconduct over a period of several months.

We must note Respondent was less than cooperative with discovery in this matter. He did not identify witnesses with knowledge of the subject matter of the proceeding, as required by Commission Rule 253, nor did he respond to the Administrator's Request to Produce Documents. An attorney is obligated to cooperate with the Illinois Supreme Court and its agency, the Attorney Registration and Disciplinary Commission, in connection with a disciplinary proceeding.

The Hearing Committee also found that the attorney's conduct was dishonest.

In a recent comment, my colleague Alan Childress noted that we ethics professors teach our students that misuse of entrusted funds gets  an attorney disbarred.

If that ever was true, it surely no longer is.

Here, the Administrator sought a suspension of twelve to eighteen months. The attorney, based on his defenses, sought dismissal of the charges. (Mike Frisch)

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

Thursday, July 31, 2014

Beating Malpractice Claim As Easy As ABC

The Washington State Supreme Court sitting en banc has held in a legal malpractice matter arising from a joint venture agreement to operate a debt collection business

 In this opinion, we consider whether the trial court erred in applying the doctrine of equitable indemnification (also known as the "ABC Rule") to hold that the legal malpractice plaintiffs here suffered no compensable damages as a matter of law and that summary judgment dismissal was appropriate.

We adhere to established precedent. Where the only damages claimed by a legal malpractice plaintiff are attorney fees incurred in a separate litigation and the only legal basis on which plaintiff asserts those fees are compensable is the ABC Rule, then the defendant is entitled to summary judgment dismissal if the ABC Rule does not apply to the undisputed facts as a matter of law. That was the situation presented here. We decline the invitation to reexamine the ABC Rule in the legal malpractice context because that issue wasnot raised below. We affirm.

In a related ruling, the court held that the attorney who had created an entity that provided legal services and financial contributions to the client violated the former version of Rule 1.8(a)(business transactions with client).

As a result, the agreement was void for public policy reasons.

The court majority opined at length about the application of the Rules of Professional Conduct to civil litigation, concluding

We do not purport to set out any all-encompassing rule for how violation of any RPC in connection with a contract might affect that contract's enforceability. We simply reaffirm that a contract entered in violation of former RPC 1.8(a) may not be enforced unless it can be shown that notwithstanding the violation, the resulting contract does not violate the underlying public policy of the rule.

Chief Justice Madsen dissented and would not use the rules as a basis for civil liability.

Justice McCloud concurred but disassociated himself with the majority's expansive discussion of the intersection between the rules and civil claims predicated on an ethics violation.

(Mike Frisch)

July 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Neglect Of CJA Client Is Serious Misconduct

The District of Columbia Court of Appeals took the rare step of rejecting an uncontested sanction recommendation in a matter involving neglect and related violations by an attorney appointed to represent an indigent client who was seeking post-conviction relief.

The court ordered a suspension of six months with all but 60 days stayed rather than the fully stayed 30-day suspension proposed by a hearing committee and the Board on Professional Responsibility

This court bears the ultimate responsibility of ensuring in disciplinary cases that any sanction imposed will adequately protect the public and the courts, maintain the integrity of the profession, and deter others from engaging in similar misconduct. To fulfill those objectives, we determine that a six-month suspension, with all but 60 days stayed, and a one-year probationary term is appropriate in this case. A 60-day suspension period will give Ms. Askew time to adequately structure her practice. A concurrently commencing one-year period of supervised probation will ensure that she does in fact take all the steps needed to achieve that goal. Moreover, if it is not an automatic consequence of her suspension, we also direct that Ms. Askew be removed from all panel lists for court-appointed counsel in Superior Court and this court, without prejudice to her ability to reapply once she has completed her term of suspension and probation.

The court found that the misconduct was serious and that there were no significant mitigating factors. There was also this

...we are troubled by Ms. Askew‟s willingness at the hearing to make representations that not only contradict prior factual assertions, but also would lack the ring of truth even if they had been made in the first instance.

The attorney will be subject to a year of probation upon reinstatement (which is automatic after the 60 days).

Notably (and I believe a first), the court ordered the attorney's removal from any program involving court appointments.

Kudos to the court for not simply rubber-stamping an unduly lenient sanction. (Mike Frisch)

July 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: Don't Threaten A Bar Complainant

The Colorado Presiding Judge ordered a stayed six-month suspension and probation for an attorney's misconduct in five matters.

One of the matters

 In a final matter, Buchheit placed several phone calls and sent numerous test messages to an individual who had filed a request for investigation against Buchheit with the Office of Attorney Regulation; Buchheit threatened that individual with a lawsuit unless he spoke with Buchheit. Through this conduct, Buchheit violated C.R.C.P. 251.32(e) (prohibiting lawsuits based on testimony given in disciplinary proceedings or communications relating to attorney misconduct) and Colo. RPC 8.4(d) (proscribing conduct prejudicial to the administration of justice).

(Mike Frisch)

July 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

Groping Conviction Leads To Disbarment: "Believed She Was Enjoying It As Much As He Was"

The New York Appellate Division for the Second Judicial Department has accepted the resignation of a British solicitor convicted of groping a woman on a bus trip from Edinburgh to London.

The Express (U.K.) had the story of the criminal trial

Hugh Robert Wotherspoon was arrested after the German woman plucked up the courage to tell the driver how the man had been repeatedly fondling her thigh on a journey south from Scotland.

The 54-year-old married solicitor, who specialises in patent applications from his firm’s offices in London, Munich and New York, admitted that he had “tried it on” with the woman.

He insisted he was not guilty of any criminal offence because he believed she was enjoying it as much as he was.

But the woman, from London, said Wotherspoon’s behaviour had left her “shocked and shaken” and the only reason she did not hit him or scream for help was that she was too afraid of what his reaction might have been.

Legal Cheek also reported on the trial

Wotherspoon, who lives in Surrey, said that after sitting for so long next to the woman in the bus’s cramped seats it seemed natural to stroke her thigh.

So, about 90 minutes into the journey, with no words having been exchanged between the pair, he put his hand on the woman’s knee. The Exeter University and College of Law-educated lawyer told the court:

“It seemed suitable and comfortable and proper at the time and I thought she would feel the same…I put my hand on her knee. I thought she might like it. It just seemed right. It didn’t seem wrong or terrible in that situation…”

But the woman removed Wotherspoon’s hand with what he termed “a gentle, diffident brush-off”. Undeterred, half an hour later Wotherspoon pushed his hand down between her thigh and his, and started tapping her leg with his fingers.

“I did not have any reason to believe that another touch would be unwelcome,” he explained.

Earlier on, the woman, who comes from London but can’t be named, had told the court that she was left “shocked and shaken” by what happened.

The court

...the resignor informed the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts that on August 8, 2012, in the Crown Court at Carlisle, United Kingdom, he was convicted of sexual assault of a female. He also informed the Grievance Committee that on August 31, 2012, he was sentenced to supervision in the community for 36 months, directed to pay certain costs, directed to pay compensation to the complainant, and required to remain on the sex offenders registry for five years. He further informed the Grievance Committee that by order dated December 10, 2013, the Solicitors Disciplinary Tribunal suspended him from practicing as a solicitor in the United Kingdom for an indefinite period, and directed him to pay certain costs. The resignor acknowledges that if charges were predicated on the facts and circumstances underlying his criminal misconduct, he could not successfully defend himself on the merits against such charges.

The resignation results in disbarment.

In the District of Columbia, as a result of this decision, the disciplinary system would not have been able to rely upon the conviction as a basis for discipline. In my opinion, a case such as this shows why the linked opinion is bad law and policy. (Mike Frisch)

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

Immunity For Court-Appointed Guardian

The New Mexico Supreme Court held that a court-appointed guardian ad litem is immune from suit for actions related to the appointment

We hold that a Rule 1-053.3 guardian ad litem is protected by absolute quasi-judicial immunity from suit arising from the performance of his or her duties unless the guardian adl item’s alleged tortious conduct is clearly and completely outside  the scope of his or her appointment. The custody court that appointed the guardian ad litem is the appropriate court to determine whether the guardian ad litem’s alleged misconduct arose from acts clearly and completely outside the scope of the appointment and, if so, the custody court should appoint a guardian ad litem, other than a parent, pursuant to Rule 1-017(C) NMRA to represent the child in any necessary litigation. A parent does not have standing to sue a guardian ad litem appointed in a custody proceeding on behalf of the child because (1) the parent has been found to be unable to act in the best interests of the child, and (2) such a lawsuit would create a conflict of interest in the custody case.
 
The father in the highly contentious custody litigation believedthatthe appointed guardian had sided with the mother. He filed bar complaints in addition tocivil litigation. (Mike Frisch)

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

Armed In The Office

An attorney who failed to respond to a series of client-initiated bar complaints was suspended for two years by the Wisconsin Supreme Court.

He had already been suspended for failure to respond to complaints and to pay dues.

When the bar sought responses to the complaints here, the attorney's response recalls what Davy Crockett said after losing an election in Tennessee: You can go to Hell, I'm going to Texas.

Attorney Moss sent a letter to the OLR saying he would not respond to any grievances.  He enclosed his State Bar membership card to serve as his resignation from the State Bar.

He went to Oregon.

One tidbit involved this observation from a client

In February of 2012, G.G. and K.S. met with Attorney Moss at his Galesville law office.  During the meeting they saw a handgun in Attorney Moss's lap and in his hand as he was sitting behind his desk.  Attorney Moss told them he was carrying the handgun for protection from people who were hounding him and from clients who stalked and harassed him.

The court rejected the Office of Lawyer Regulation's call for a shorter suspension

we conclude that the nine-month suspension sought by the OLR and recommended by the referee is an insufficient sanction for Attorney Moss's misconduct.  Although Attorney Moss had a license to practice law in Wisconsin for only slightly more than three years before his license was suspended, during that short timeframe he engaged in repeated misconduct where he took fees from clients, failed to perform the work for which he was retained, failed to communicate with the clients regarding the status of their matters, and failed to return fees and client files upon request.  The incident in which Attorney Moss was brandishing a handgun during a client meeting is disturbing.  We believe that a two-year suspension of his license to practice law in Wisconsin is a sanction more commensurate with the misconduct at issue in this case. 

The attorney was admitted in 2009. (Mike Frisch)

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

Tuesday, July 29, 2014

ALMS For The Disbarred

The Pennsylvania Supreme Court has disbarred an attorney who assisted a company called ALMS in drafting trusts sold by non-lawyers to senior citizens.

After nine days of hearings, the attorney was found to have engaged in dishonesty, failures to communicate with clients, conflicts of interest and aiding the unauthorized practice of law.

The Disciplinary Review Board noted that the attorney began his association with entities engaged in such activities within three years of his bar admission. He continued to violate ethics rules after receiving notices from the Office of Disciplinary Counsel and even after entered into a 2004 consent decree to cease assisting unauthorized practice.

He also drew a law school classmate into the mess. (Mike Frisch)

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

Monday, July 28, 2014

Interviewing With The Enemy

The District of Columbia Bar Legal Ethics Committee has a new opinion on an important real-world issue

When a lawyer is seeking employment with an entity or person adverse to his client, or with the adversary's lawyer, a conflict of interest may arise under Rule 1.7(b)(4) if the lawyer’s professional judgment on behalf of the client will be, or reasonably may be, adversely affected by the lawyer’s own financial, business, property, or personal interests (for purposes of this Opinion, a lawyer’s own financial, business, property, or personal interests are collectively referred to as a “personal interest conflict”). Both subjective and objective tests must be applied to determine whether a personal interest conflict exists.

There is no “bright line” test for determining the point during the employment process when a personal interest conflict arises, and that point may vary. There are a number of factors to consider in determining whether a personal interest conflict exists, including whether the individual lawyer is materially and actively involved in representing the client and, if so, whether the lawyer’s interest in the prospective employer is targeted and specific, and/or has been communicated to, and reciprocated by, the prospective employer.
 
Where the prospective employer is affiliated with, but separate and distinct from, the entity adverse to the job-seeking lawyer's client, there may be no personal interest conflict in the first instance, because the adversary and the prospective employer may be separate entities for conflicts purposes.

If a personal interest conflict arises, there are three possible courses of action that may be available to the individual lawyer, each of which is subject to applicable requirements of the D.C. Rules of Professional Conduct: (a) disclosing to the client the existence and nature of the personal interest conflict and the possible adverse consequences of the lawyer's representation of the client and obtaining the client's informed consent to the representation; (b) withdrawing from the representation; or, (c) discontinuing seeking employment with the client's adversary or the adversary's lawyer until all pending matters relating to that potential new employment have been completed.

The personal interest conflict of an individual lawyer in a law firm, nonprofit, or corporate legal department is not imputed to the other lawyers in the law firm, nonprofit, or corporate legal department, so long as the personal interest conflict does not present a significant risk of adversely affecting the representation of the client by such other lawyers. The imputation rule does not apply to a government agency.

A subordinate lawyer who discusses a potential personal interest conflict with his supervisory lawyer, and acts in accordance with the supervisory lawyer's reasonable determination of whether the subordinate lawyer has a personal interest conflict and follows the supervisory lawyer's recommended course of action, will not be held professionally responsible even if it is subsequently determined that the supervisory lawyer's determination of whether there was a personal interest conflict, and/or the recommended course of action, were incorrect under the Rules.

I have found this issue to arise with some frequency. Guidance always is helpful. (Mike Frisch)

July 28, 2014 in Hot Topics, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Worst Report Affirmed

In October 2012, I posted a comment about a report of a District of Columbia hearing committee that absolved four lawyers who I believe were proven to have engaged in serious misconduct involving the abuse of an elderly woman suffering from dementia.

The post was titled The Worst Hearing Committee Report in D.C. Bar History.

My take

The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.

After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.

The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.

Well, two years have passed and the Board on Professional Responsibility affirmed the findings last week.

The majority opinion calls the case one that is resolved by the hearing committee's "credibility" determinations, thereby absolving themselves of the work of actually studying the record and evaluating the wealth of evidence that the hearing committee simply ignored in aid of its steadfast desire to find no misconduct.

From the BPR majority opinion

We adopt the Hearing Committee’s findings of fact because we agree that they are supported by substantial evidence. Despite the quantity of evidence urged by Bar Counsel, when we account for the Hearing Committee’s qualitative credibility determinations, we agree that Bar Counsel has not clearly and convincingly proved the charges against Respondents. The facts argued by Bar Counsel certainly do not “produce … a firm belief or conviction” that the Hearing Committee got it wrong.

In other words, it's fine to ignore the findings of multiple judges and the observations of a dozen witnesses if you accept the self-serving statements of the attorneys that they did not know that their so-called "client" was incapable of decision-making.

The majority's logic would absolve an attorney of conversion if the lawyer denied that the money was gone, even if the bank records proved it.

A concurring opinion would find that the attorneys were aware that their "client" was incapacitated and that her interests conflicted with those of her son. Somehow, and for reasons  that escape me,  those conclusions did not lead to findings of serious ethical violations.

The concurrence concludes

This is a sad case. It involves an unnecessary and bitter dispute between a brother and sister, neither of whom distinguished him or herself, over the financial affairs of their mother. Mrs. Ackerman was visually impaired, suffered from dementia, and was distressed by the dispute between her children. The dispute resulted in extensive litigation that was funded by the trust established to provide for Mrs. Ackerman in her later years. The costs of that litigation contributed to the depletion of the trust assets such that questions were raised as to the sufficiency of the trust to support Mrs. Ackerman.

It is also a difficult case. Attorneys retained to handle matters in situations such as this face difficult decisions concerning the capacity of elderly clients to make informed and educated decisions. As noted, the Rules of Professional Conduct provide little guidance for when a lawyer must decline the representation, or withdraw from the representation of a client, who is suffering from dementia and other disabilities that impair her ability to function. That is particularly true in situations such as this where the client retains social graces, has an outward appearance of understanding, at some level, of what is happening, and where, as here, the client is relatively clear as to her wishes, even if she does not fully appreciate the consequences of her actions.

I agree that this is a "sad case," but not for the reasons set forth. The case sadly reflects the inability of the BPR to deal meaningfully with a case in which the hearing committee entirely failed to do its job.

The disingenuous suggestion of the concurrence that the lawyers acted in a good-faith belief as to the mother's competence is belied by an overwhelming amount of record evidence.

And the false equivalence between brother and sister --the brother who tried (with the help of four lawyers) to loot his mother's estate and the sister who tried to protect her -- is deeply offensive to anyone who bothered to study the record of this sorry affair.

It's as if the BPR would find that the person who defends frivolous litigation is as blameworthy as the person who initiates it.

I expect Bar Counsel to appeal these dismissals to the Court of Appeals.

Regardless of the eventual outcome (and I have no optimism at this point) , the story of this case is Exhibit One to prove the failure of the volunteer disciplinary system in the District of Columbia.

In particular, this outcome serves as a warning to victims --don't bother to bring your concerns to the D.C.Bar, as you will only get attacked for your trouble.

To be fair, the hearing committee's gross and inexcusable failure to deal with the evidence put the BPR in a difficult position. One approach would have been to apply due diligence to study and learn the record; the other is the approach taken here --blow the whole thing off as a credibility contest and simply fail to deal with the evidence in a meaningful way.

These so-called guardians of the public trust should be thoroughly ashamed of themselves. In a just world, what happened to Fran Abbott (the complaining daughter) would happen to them.

The BPR report can be found at this link under the names Szykmowicz, Szymkowicz, Silverman and King. (Mike Frisch)

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

Saturday, July 26, 2014

Death Be Not True

The Illinois Administrator has filed a complaint alleging that an attorney made false representations in response to a motion for sanctions.

The attorney was assigned by his law firm to defend a personal injury action.

A motion for sanctions was filed by plaintiff's counsel for a discovery lapse. The attorney sent unverified responses after the motion was granted.

Then

Prior to October 27, 2011, Respondent telephoned the office of [plaintiff] Jackson's counsel and spoke to Jennifer Vermillion, a paralegal, regarding Jackson's September 7, 2011 motion to compel...and Respondent's failure to respond to that motion. Respondent explained to Ms. Vermillion that he had been out of the office due to his mother having been killed in an automobile accident.

On October 27, 2011, Respondent filed a response to Jackson's motion for sanctions and for default judgment...in which Respondent admitted that he "could have done a better job responding to the discovery in this case," but requested that Jackson's motion be denied. In that response, Respondent made the following statements:

" 11. As Plaintiff's counsel was told several times, on September 9, 2011, the undersigned's single mother was killed in a violent car accident in the state of Colorado.

12. The violence of the car accident was not what killed her, instead it was the fire and smoke inhalation from the resulting conflagration.

13. She died intestate with a lease, bills, car and pets and no family in the state where she resided.

14. The undersigned was left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted."

18. Respondent's statements described in paragraphs 16 and 17, above were false, and Respondent knew they were false, because:

  1. Respondent's mother had not been killed in a car accident, nor had she been involved in a car accident at that time;

  2. Respondent's mother was alive; and

  3. Respondent was not "left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.

No report on whether the mother will be called as a witness. (Mike Frisch)

 

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

Frequent Flyer

An attorney convicted of seven misdemeanors was suspended by the New York Appellate Division for the Second Judicial Department for three years.

The attorney failed to report the convictions.

As to sanction

In determining an appropriate measure of discipline to impose, we note that the respondent failed to appear for the hearing, despite multiple adjournments at his request. Counsel for the respondent represented that his client was out of state, and was financially unable to return to New York. Ostensibly, the respondent was attempting to borrow money, and/or utilize mileage points accrued by a friend. However, he was unsuccessful. The Special Referee found, and we agree, that these explanations for the respondent's failure to appear are unavailing, given that he had ample opportunity to appear. Moreover, despite representations by the respondent's counsel that his client was in a treatment program, and that he had been involved with the Lawyer's Assistance Program prior to leaving New York, the same was not proved. Indeed, the Special Referee found that no mitigation by way of testimony, affidavit, or letter was received from the respondent, or anyone else on his behalf. Ultimately, we are troubled by the multiplicity of crimes, several of which are alcohol-related offenses.

(Mike Frisch)

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

Monday, July 21, 2014

Attorney Charged With Lawyering While Intoxicated

The Illinois Administrator has filed a two-count complaint alleging misconduct by an attorney.

The first count charges him with leaving an accident scene. He allegedly drove seven miles to his home after the collision and parked his damaged vehicle in his garage.

He had, however, left some incriminating evidence at the scene - his bumper with the license plate still affixed.

After arriving at the accident scene, Lee County Sheriff’s Officers located Respondent’s address from the license plate and bumper left behind at the scene. After finishing their reports at the scene, the officers proceeded to Respondent’s home. Upon their arrival at Respondent’s home, the officers were able to see Respondent’s vehicle parked in the garage by looking through a window in the garage. The officers witnessed the damage to the front end of Respondent’s vehicle that was consistent with the information they witnessed at the accident scene.

Shortly after arriving at Respondent’s home, the Lee County Sheriff’s Officers rang Respondent’s door bell and knocked on the door. Respondent did not answer the door. The officers then looked into Respondent’s window and saw Respondent slumped in a chair in the kitchen with numerous beer cans around him. The officers knocked on the window and shined a flashlight at Respondent but Respondent did not awaken.

The attorney pleaded guilty to misdemeanor leaving the scene.

Count two charges, in essence, lawyering while intoxicated:

Between May 2010 and October 2011, the Administrator of the ARDC received correspondence from various judges presiding in the 15th Circuit, Lee County, Illinois, with concerns that Respondent was impaired and smelled like alcohol during various court appearances he made on behalf of clients in the Circuit Court of Lee County.

On October 26, 2011, Respondent appeared on behalf of Peggy Goldie for a prove-up in a dissolution of marriage matter entitled, In re the Marriage of Peggy Goldie v. Charles Goldie, 11 D 50 (Lee County Circuit Court). During the court appearance on October 26, 2011, the Honorable Jacquelyn D. Ackert, and other courtroom personnel, smelled alcohol on Respondent. Judge Ackert and the courtroom personnel also observed that Respondent was unsteady and had difficulty formulating appropriate questions for the court proceeding. Judge Ackert determined that Respondent was impaired and unable to properly proceed on the prove-up and continued the case to November 1, 2011.

After the court appearance, described in paragraph 10 above, the Honorable Ronald M. Jacobson and Judge Ackert, met with Respondent in Judge Ackert’s chambers. The Judges asked Respondent to submit to a breathalyzer test, but Respondent refused.

The complaint contends that the above course of conduct prejudiced the administration of justice. (Mike Frisch)

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Common Interest, A Common Privilege

In a matter involving the application of the common interest rule in attorney-client privilege law, the New Jersey Supreme Court has held that

The common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better representation by making more information available to inform decision-making in anticipation of litigation. Although the Court recognizes that any privilege, including the attorney-client privilege and work-product protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore, expressly adopts the common interest rule as articulated in LaPorta. Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement. (pp. 33-37)

The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)

The holding

...we expressly adopt the common interest rule as previously articulated in LaPorta, supra, 340 N.J. Super. at 254, 262-63. We also hold that Sufrin, who represented a former municipal official and private residents in litigation filed by O’Boyle, shared a common purpose with Longport at the time he disclosed work product to the municipal attorney. Therefore, the joint strategy memorandum, and the CDs containing documents obtained and produced by the private attorney were not government records subject to production in response to an OPRA request by O’Boyle. Finally, O’Boyle failed to articulate a particularized need as required by the common law right of access to obtain the work product of the private attorney.

The litigation involved access to public records. (Mike Frisch)

July 21, 2014 in Privilege | Permalink | Comments (0) | TrackBack (0)