Thursday, September 4, 2014

Suit For Legal Fees Subject To Mandatory Arbitration In D.C.

The District of Columbia Court of Appeals has held that a suit initiated by a law firm for unpaid fees must be sent to the Bar's arbitration program on the former client's demand.

Judge Fisher noted that

BTP, a biotechnology firm, retained [Ludwig & Robinson] as counsel in March 2011 to help resolve a trade secret dispute. The dispute was settled in May 2012, L&R having billed BTP on a monthly basis during the course of its representation. By June 2012 L&R claimed that BTP owed approximately $1.7 million in outstanding legal fees, disbursements, and expenses. In January 2013 L&R brought suit to collect its fees.

Several weeks later, BTP responded to the complaint by filing a motion to stay the trial court proceedings and compel arbitration. In addition to claiming that L&R had expressly agreed to arbitrate the fee dispute, BTP argued that a binding agreement to arbitrate had been formed by operation of law. BTP cited Rule 8 of the D.C. Bar‟s Attorney/Client Arbitration Board ("ACAB"), which states that "if a client files a petition to arbitrate a fee dispute with a lawyer, the lawyer is deemed to have agreed to arbitrate."

Significantly, the court upheld the Bar's mandatory arbitration regime

L&R contends that this court lacked authority to promulgate Bar Rule XIII. Quite to the contrary, this court possesses broad authority to regulate the practice of law, deriving much of this power from the District of Columbia Court Reorganization Act of 1970. A portion of that Act, passed by Congress, provides that "[t]he District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion." D.C. Code § 11-2501 (a) (2012 Repl.). Beyond this broad statutory grant of authority, the court possesses significant inherent authority as well. In Sitcov v. District of Columbia Bar, we relied upon the "almost universally accepted" proposition "that the highest court in the jurisdiction is imbued with the inherent authority to define, regulate, and control the practice of law in that jurisdiction." 885 A.2d 289, 297 (D.C. 2005) (quoting Brookens v. Comm. on Unauthorized Practice of Law, 538 A.2d 1120, 1125 (D.C. 1988)).

The court rejected the contention that arbitration violated the law firm's Seventh Amendment jury trial rights.

The trial court had erred in declining to enforce the valid arbitration agreement. (Mike Frisch)

September 4, 2014 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

"A Bully And Clown"

The Tennessee Supreme Court has upheld a 30-day suspension of an attorney who called a bankruptcy judge "a bully and clown" in an email sent several months after his fee petition had been denied.

The court

A federal bankruptcy court entered judgment denying a Nashville attorney’s application for approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and clown” and demanding that he provide a written apology for denying the fee application.

The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel’s judgment to include additional violations for misconduct associated with the attorney’s briefs filed in the district court but affirmed the remainder of the hearing panel’s judgment. The attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the attorney’s email violated the rule against ex parte communications and was also sanctionable as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s thirty-day suspension from the practice of law.

Justice Clark concurred. She would ground the sanction in a Rule 8.2 violation.

Justice Wade also issued a concurring opinion.

Both concurring opinions raise interesting issues as to what rule pigeonhole is the correct one for disrepectful language to a judge. The complicating factor was that the proceeding had ended several months prior to the email (Mike Frisch)

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

Wednesday, September 3, 2014

Gambling Man Disbarred

From the web page of the Ohio Supreme Court (per Kathleen Maloney)

Stephen  L. Becker of Lima was disbarred by the court for misappropriating funds  entrusted to him as guardian for his nephew, caretaker for his aunt, and  executor of his aunt’s estate following her death, as well as in several other  client matters. Becker’s misconduct primarily fueled a gambling addiction, the  court stated in its decision.

In  1983, Becker was appointed as guardian of the estate of his nephew, who was  then a minor and suffers from severe developmental disabilities. Becker made  various “loans” from the guardian account to friends, his daughter, and  himself. The loans were not disclosed, as required, to the probate court.

Becker  also cared for an elderly aunt for more than 20 years. He was named her power  of attorney, and they shared a joint bank account. In July and August 2005,  Becker wrote $37,000 in checks to four casinos. Between October and December,  he withdrew $9,500 in cash from the account, wrote three checks to casinos  totaling $22,000, and took $25,000 from the account to repay money he had  improperly taken from his nephew. The court noted other misappropriations in  2007, 2008, and 2010.

After  his aunt died, Becker, as executor of her estate, also inappropriately used  funds and intentionally filed false and misleading reports about how the money  was used and distributed to his aunt’s beneficiaries.

In the  court’s unanimous decision, Justice Paul E. Pfeifer wrote that it is clear  Becker has a gambling addiction given the substantial amount of money he paid  to casinos from these accounts. While a gambling problem could be mitigating in some cases, Justice  Pfeifer noted that “Becker’s failure to pursue any kind of consistent help for  his problem eliminates this factor as possible mitigation.”

He  concluded, “[W]e have consistently stated that ‘the primary purpose of the  disciplinary process is not to punish the offender but to protect the public  from lawyers who are unworthy of the trust and confidence essential to the  attorney-client relationship.’ … In this case, it is obvious that an extreme sanction  is necessary to protect the public. … Given the extent and duration of the  various misappropriations and the helplessness of some of the victims  (including a disabled nephew and an elderly aunt), we are confident that  disbarment is the appropriate sanction.”

2013-1257. Disciplinary  Counsel v. Becker, Slip  Opinion No. 2014-Ohio-3665.

(Mike Frisch)

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

Bribed Prosecutor Resigns From Bar

The Indiana Supreme Court accepted the resignation of an attorney convicted of bribery.

IndyStar had this report on the conviction

Former deputy prosecutor David Wyser's after-the-fact acceptance of a $2,500 reward for approving the early release of a convicted killer was a "wobble" in an otherwise unblemished career of public service, federal Judge Sarah Evans Barker said Monday as she sentenced Wyser to three years of probation.

The sentence, which will begin in January with six months of house arrest at Wyser's home in Nevada, was significantly less than the 15 to 21 months in prison sought by federal prosecutors.

And from the Herald Bulletin

The Indiana Supreme Court has accepted the resignation of former Marion County Deputy Prosecutor David Wyser from the practice of law in Indiana.                                                                                

Wyser was placed on an indefinite suspension in February after pleading guilty to bribery charges. Rather than try and fight the suspension, he chose to resign from the Indiana Bar which the court accepted last week.

In 2009, while working in the Marion County prosecutor's office, he accepted a bribe of $2,500 from the father of a convicted murderer Wyser was representing. The bribe was made as a political donation when Wyser was running for Marion County prosecutor. In exchange, Wyser was able to get his client's sentence reduced from 110 years to 70 years to time served after the contributions.

Wyser is now banned from practicing law in Indiana for at least five years when he may apply for reinstatement if he chooses. 

He had worked in Madison County as a deputy prosecutor from January 2012 to May 2013, but resigned after the allegations of bribery. The case was not connected to his work in Madison County, Prosecutor Rodney Cummings said in previous news stories.

(Mike Frisch)

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

Tuesday, September 2, 2014

Mother's Day

A case highlight from the September 2014 edition of the California Bar Journal

A San Francisco Bay Area attorney has lost her license to practice law for using the legal system to try to control her adult son and for misappropriating his settlement funds. ELIZABETH M. BARNSON KARNAZES [#118922], 59, of Foster City, was disbarred June 13, 2014 and ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

Karnazes was initially reviewed on evidence of nine counts of misconduct, but the Review Department of the State Bar Court ultimately found her culpable of seven of those charges, including failing to maintain records of client funds or maintain client funds in her client trust account and of misappropriation and commingling. The three-judge panel wrote that Karnazes was so focused on controlling her son, Zachary, that she lost sight of her ethical obligations.

“Ignoring his desperate need for his funds, Karnazes utilized her position as Zachary’s attorney to escalate the pressure she applied on him over a three-year period when she continued to refuse payment, and ultimately attempted to take control by becoming conservator of his estate,” Joann M. Remke, then the State Bar Court’s presiding judge, wrote on behalf of the panel.

“This conduct illustrates the danger of an attorney, trained in persuasion and in a superior position to exert influence, who uses such skills and circumstances to force a client – in this case, her son – to bow to her wishes,” Remke wrote.

In January 2005, Karnazes signed a fee agreement to provide legal services for her son, who was 18 at the time, and ultimately represented him in at least three different lawsuits. One was for injuries Zachary allegedly suffered in a drug treatment program; another for injuries allegedly suffered when a school administrator abused him on a camping trip; and a third for injuries he allegedly suffered due to physical abuse.

Karnazes settled the first two lawsuits in 2009 for $40,000 and $60,000 respectively, depositing the money in her client trust account. After attorney fees and $7,500 Karnazes had given him as an advance were deducted, Zachary was entitled to $33,739.45. Despite numerous requests in person and by telephone, Karnazes did not give him the money, leading him to send her five written requests in October and November. At the time, her son had been unemployed since May 2008 and was living on disability payments.

“He had to travel by bus to and from medical appointments, could not afford his own telephone and ate free meals at a soup kitchen,” Remke wrote. “Despite Zachary’s requests for payment, Karnazes did not distribute his funds. Instead, she accused him of hating her and abandoning her when she needed him most.”

In August 2009, Karnazes deposited a check for $97,750, money she drew against her home equity account, into her client trust account, immediately withdrawing $50,000. A few months later, she deposited another $22,500 of her own funds into the account and gradually withdrew it over time.

Zachary filed a complaint with the State Bar the following summer over his mother’s refusal to give him his settlement money. Several months later, Karnazes filed a petition in San Mateo County Superior Court seeking to be appointed conservator of Zachary’s estate. At the time she was still representing him in the third lawsuit she filed on his behalf and claimed he was 100 percent disabled for mental health reasons. The court ultimately denied Karnazes’ petition with prejudice, concluding Zachary was capable of making his own decisions. The court of appeal affirmed the decision and the California Supreme Court denied Karnazes’ petition for review.

Meanwhile, in 2010 Karnazes obtained a default judgment in her son’s third lawsuit and deposited $56,995 she received from the defendant’s insurance company in her client trust account. At that point, after deducting her fees and costs, Karnazes owed her son at least $57,496.15. On March 29, 2011, she offered to give Zachary a cashier’s check for $63,000 on condition that he release his right to any disputed funds from the settlements and not discuss the terms of their agreement. Zachary refused the offer.

On June 21, 2012, four days before the start of her disciplinary trial, Karnazes gave Zachary a check for $53,507.97 and an accounting that omitted multiple withdrawals from the client trust account, failed to account for the whole time she was holding his funds and overstated her attorney fees. Assuming the costs she was claiming were accurate, Karnazes should have paid him $3,988.18 more than she gave him. She was ordered to pay that amount plus interest in restitution.

Karnazes had one prior record of discipline, a January 2010 public reproval that followed her misdemeanor conviction for trespassing. Karnazes was initially charged with grand theft and theft from a merchant for stealing items from two stores, but pleaded not guilty by reason of insanity. Two court-appointed doctors examined her and concluded she was sane at the time of the thefts. The district attorney amended the charges to include a misdemeanor trespass violation and Karnazes pleaded no contest to that charge.

(Mike Frisch)

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

Attorney Reprimanded, Conviction Of Client Reversed

The Arkansas Professional Conduct Committee - Panel A - has reprimanded an attorney who engaged in a conflict of interest by representing both husband and wife in a case involving felony sexual abuse allegations made by the wife's daughter

The conduct of Max M. Horner, Jr. violated AR Rule 1.7(a) in that (1) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest; and his representation of Mrs. Rackley was directly adverse to Horner’s stated trial defense strategy for her husband. (2) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter, and Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mr. Rackley would be materially limited by the lawyer's responsibilities to Horner’s other joint client, Mrs. Rackley. (3) Horner attempted to jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mrs. Rackley would be materially limited by the lawyer's responsibilities to another client, Mr. Rackley; and at Mr. Rackley’s trial, Horner had Mrs. Rackley take the Fifth Amendment to attempt to keep her testimony from Mr. Rackley’s jury, when her testimony clearly might have been favorable to Mr. Rackley, especially to counter or explain adverse testimony by State witnesses Luebke and Thessing about their conversations with Mrs. Rackley. Arkansas Rule 1.7(a) requires that, except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

The husband's conviction was reversed as a result by the Arkansas Supreme Court

Because Mr. Horner was required under his ethical obligation to adequately represent both clients’ interests, even if conflicting, he was not free to explore all avenues in developing his trial strategy to present the best possible defense for appellant at trial. In developing his impeded trial strategy, Mr. Horner ethically could not ignore the fact that Mrs. Walters’ testimony, whether favorable to appellant or not, could further implicate her as well. Therefore, even though he testified that he believed that her interests were “united” with appellant’s, he was faced with the ethical dilemma of representing two clients simultaneously who had conflicting interests.

(Mike Frisch)

September 2, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Theft From Elderly Client Draws Prison, Disbarment

A Virginia attorney has consented to disbarment in the wake of a criminal conviction.

The Washington Post reported on the offense

A Fairfax County attorney was sentenced to six years in prison Thursday for embezzling nearly $500,000 while he was entrusted to care for an elderly woman and her estate, according to the Virginia attorney general’s office.

James G. Kincheloe, Jr., 67, who lives in Fauquier County, was convicted of a single count of embezzlement in the case in Fairfax County Circuit court in July. Kincheloe entered an Alford plea, meaning he did not admit guilt but acknowledged that prosecutors had enough evidence for a conviction.

Fairfax County Judge Jane M. Roush ruled that Kincheloe will have to repay more than $483,000 to the estate of Pearl Buckley, a Fairfax City resident who died in 2009 at the age of 90. A separate civil suit by the family claimed almost $900,000 was taken from Buckley.

(Mike Frisch)

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

Fan Barred From UNC For Harassing Student Athletes

The University of North Carolina did not violate the First Amendment rights of a former student and "dedicated fan" by permanently barring him from athletic events, according to a decision of the North Carolina Court of Appeals.

The 1970 graduate served as an usher at games and acted as described below

Petitioner made sexually suggestive comments to female UNC Athletics staff members, traveled to UNC women’s soccer matches and appeared at the hotel where the players were staying and harassed the players, and alienated fans by openly criticizing players in front of their family members during the game while serving as an usher and representative of UNC Athletics. Petitioner also harassed staff members by repeatedly calling various UNC Athletics offices up to 13 times per day.

The events that led to the lifetime ban arise from an incident that occurred in December 2012 at the Women’s Soccer College Cup tournament in San Diego. Petitioner had previously attempted to communicate with several female soccer players both in person and via Facebook. At the Soccer College Cup, petitioner found out which hotel the players were staying, allegedly “because he won an autographed soccer ball and couldn’t locate the head coach’s signature on the ball.” Petitioner claims that he wanted to find the head coach so he could locate his signature on the ball. The parents of the players felt uncomfortable with petitioner ’s uninvited presence at the hotel, especially given his previous attempts to communicate with several female players. Petitioner was asked to leave, and did so.

The court concluded that the University acted appropriately to prevent harassment of its students.

Lesser sanctions had not curbed the offensive behavior. (Mike Frisch)

September 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Rocky Mountain Bye

There has been a fair amount of discussion about the ethical issues that attorneys may face in representing clients in the medical (and legal in some states) marijuana business.

Colorado leads the way and has what may be a first -- an attorney disbarred for misconduct in the representation of a medical marijuana business.

Howver, the reasons for the sanction are not on the cutting edge of client representation

Respondent presented fabricated documents and false statements to the People during a disciplinary investigation, which prevented the disciplinary system from functioning as the Colorado Supreme Court intended that it should. He produced those same documents in the GreenVisionTek litigation and testified to their authenticity at trial. Because his falsifications and misrepresentations reflect such a complete deviation from the appropriate ethical standards for members of the legal profession, the Hearing Board concludes that Respondent must be disbarred.

The attorney's client was the seller of the business. He fabricated emails to insert the suggestion that he had so advised the potential buyer.

The false emails initially were produced in response to bar investigation resulting from opposing counsel's complaint over the attorney's handling of his secrow account. The emails were then produced in civil litigation. (Mike Frisch)

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

Friday, August 29, 2014

Hello You Must Be Going

An Oklahoma attorney found to have engaged in unauthorized Colorado practice has been disbarred in Colorado.

The attorney had purchased two Colorado accounting firms in partnership with a Colorado accountant. Over a three-year period, he set up multiple law offices in Colorado and held himself out a licensed to practice out of those offices.

He applied for Colorado bar admission but abandoned the effort after failing to provide information sought in connection with the application.

Another example (there are many others) of losing a license that never was granted. (Mike Frisch)

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

Life Without Parole For Juveniles Prohibition Given Retroactive Effect

The New Hampshire Supreme Court has held that decision of the United States Supreme Court prohibiting mandatory life sentences without the possibility of parole for juvenile offenders must be applied retroactively to persons convicted prior to the high court's decision.

The decision here applies to, among others, a defendant in the high profile Dartmouth College murder case.

Also benefitting from the court's holding is a defendant who murdered both of his parents. (Mike Frisch)

August 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Clear And Convincing Evidence Required For Revocation Of Disciplinary Probation

The standard of proof for a violation of disciplinary probation is clear and convincing evidence, according to a recent decision of the North Dakota Supreme Court.

The court found that the attorney-probationer had charged excessive fees and failed to supervise non-lawyer staff

 the billing records provided by [the attorney] reflect that she double-billed, she billed for overhead items, and she billed at the wrong hourly rate...

[She] argues her fee is reasonable even though it contains minor billing errors because, she claims, a bill containing de minimus billing errors has never resulted in discipline in North Dakota. She also argues she performed a substantial amount of legal work which was not billed and which was substantially greater than the total amount of billing errors. Despite these contentions, [her] improper billing previously discussed is sufficient to establish that her fee is unreasonable...

There is a dissent as to sanction

Upon revocation, we must determine the appropriate length of suspension. The majority does not answer this directly; instead suspending [the attorney] for 30 days in a combination of imposing new discipline and revoking the stayed suspension. I respectfully disagree with the adequacy of that action as it relates to revocation of the stayed suspension. I made plain in the 2011 proceeding that I thought a 90-day suspension was appropriate and that staying the suspension was ill-advised. See Kellington, 2011 ND 241, ¶ 19, 809 N.W.2d 298 (Crothers, J., dissenting). I continue to believe principles of graduated and proportional discipline require revocation of the stay and imposition of suspension for the full original 90 days. That is especially true when viewed in the context of this disciplinary proceeding, which is [her] eighth since 1996. See id. at ¶ 16 (Crothers, J., dissenting).

(Mike Frisch)

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

The Colbert Report

An attorney convicted of a tax offense has been suspended for two years by the New York Appellate Division for the Second Judicial Department.

The court noted

In determining the appropriate measure of discipline to impose, the respondent asks that the Court consider the following mitigating factors: his excellent reputation—both personally and professionally—for honesty, integrity, and conscientious adherence to standards of professional ethics; the aberrational nature of his misconduct; his full and complete acceptance of responsibility for his misconduct; his genuine remorse and contrition; his prompt and full restitution to the Internal Revenue Service; the unrelated nature of the misconduct to the practice of law; the lack of harm to any client; his two decades of practice with an unblemished disciplinary record; the price he has already paid professionally (leaving a law partnership he helped to create); time already spent under interim suspension; his community and volunteer activities; his devotion to his family; and the crucial role the respondent plays in the ongoing psychological rehabilitation of his son.

Notwithstanding the aforementioned mitigating factors, the respondent knowingly filed false returns for several years, taking deductions and reporting losses to which he was not entitled, and thereafter engaged in conduct to cover up his criminal conduct. The respondent earned substantial income during the years in question, and when audited, could easily have paid the back taxes, penalties, and interest, but chose instead to lie to the Internal Revenue Service, engaging in deceitful and obstructive conduct. He conceded that he had no justification for his misconduct, other than the fact that he had chosen a lifestyle above his means.

The court gave credit for time served on interim suspension for the conviction. (Mike Frisch)

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

Wednesday, August 27, 2014

Eight Ball, Disbarred Pocket

The Maryland Court of Appeals has disbarred an attorney well-known for his television advertising.

Danny Jacobs of The Daily Record had the story of the bar proceedings.

If you’re a Baltimore native of a certain age, you might recognize the ball and pool table pictured above.

Give up? That’s the “legal rights eight ball” that opens a commercial featuring personal injury lawyer Neil Lewis, who says in the spot he does not want you to get stuck behind it.

I have never met Neil Lewis but I have not forgotten that commercial. Which is why, on Thursday, when I saw a lawsuit filed in Baltimore City Circuit Court against Neil Lewis, my first thought was, “The Lewis Law Line?”

I watched that commercial a few times Thursday as I was writing about the Attorney Grievance Commission seeking to halt Lewis from practicing law.

...The juxtaposition between the AGC’s allegations and Lewis’ commercial is jarring. Lewis says he has recovered “millions of dollars” in damages for his clients; the AGC alleges Lewis deposited settlement checks on behalf of clients and used the money for unauthorized purposes. Lewis says, “I receive no fee, nor is there any cost to you unless we win”; the AGC counters some of Lewis’ clients were hit with collection lawsuits from medical services providers that Lewis was supposed to pay with money from a settlement or verdict.

I’ll keep tabs on the city lawsuit and AGC disciplinary petitions as they move forward.

In the meantime, one aspect of my story left me wondering. A hearing judge wrote in her findings that Lewis had approximately 800 open files in the year he was being investigated. To any personal injury lawyers out there: Is that a lot of files for a lawyer to have open at once?

The disbarment was based on a joint consent petition filed by the attorney and the Attorney Grievance Commision. (Mike Frisch)

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

That's What Makes A Horse Race

The Illinois Administrator has filed a complaint alleging that a Kentucky lawyer engaged in unauthorized practice of law in connection with various horse-related matters

On October 7, 2003, Respondent was admitted to practice law in Kentucky. On September 30, 2009, she registered for non-practice exemption status with that State, wherein she would remain in good standing as a member of that bar without complying with any of the jurisdiction’s continuing legal education requirements, but she would not be permitted to practice law in Kentucky.

Between at least July 6, 2013, and April 13, 2014, Respondent represented four different clients in steward’s inquiries relating to allegations of misconduct by horse racing owners and trainers conducted by the Illinois Racing Board ("Board") pursuant to Illinois Horse Racing Act of 1975, 230 ILCS 5/31.

Between at least July 6, 2013, and April 13, 2014, in the following four matters, Respondent appeared for proceedings held by stewards on behalf of owners or trainers whose conduct was the subject of inquiries...

Between at least September 30, 2013, and February 19, 2014, Respondent represented Stevanna E. Turner ("Turner") in a matter before the United States Trotting Association ("USTA") relating to allegations of a misuse of banned substance in a horse owned by Turner during a horse racing event at the Edgar County fair.

On February 19, 2014, USTA Board of Review held a hearing relating to an appeal by Turner regarding the ruling that Turner’s horse had tested positive for a banned substance. Respondent appeared at the hearing as Turner’s counsel.

During the hearing...Respondent was identified by various individuals, including the chair of the USTA Board of Review, at various times as "counsel for defendants", "appellants’ counsel", "defense counsel", "attorney", and "counsel." At no time did Respondent deny or correct the descriptions of her as counsel or attorney.

By failing to correct other individuals’ description of her at counsel or attorney, Respondent misled the USTA Board of Review. Respondent intentionally led the USTA Board of Review to believe that she was authorized to practice law in Illinois, when she was not.

During the hearing...while arguing the case on behalf of Turner, Respondent made legal arguments regarding rules of the Illinois Department of Agriculture; USTA rules; the jurisdiction of the USTA; and the integrity of a test sample of the drug purportedly administered to Turner’s horse.

The complaint further alleges failure to cooperate in the bar's investigation.  (Mike Frisch)

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

Not For Adults Only: "Dignity, Always Dignity"

The South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that, with dignity, a judicial candidate can advertise in a movie theater.

The opinion relies on the Merriam Webster dictionary definition of "dignity."

Warning: it would not comport with the dignity standard to advertise for a judicial campaign in an adult movie theater.

Also, dignity may be affected by the particular movie that is being shown when the ad runs.

I welcome reader suggestions as to movies that may not satisfy the dignity standard.

For instance, how about The Verdict, where the judge clearly favors the big law firm throughout the litigation?

And what if the candidate mistakenly thinks that "Deep Throat" is a movie about the Watergate investigation?

The title post quote (which many other than my friend Paul Burgoyne may not recognize) comes from here. (Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (3) | TrackBack (0)

Departing Associate Retains Contingent Fees For Ongoing Cases

In a fee dispute between an associate attorney and his former law firm over contingent fees, the Indiana Court of Appeals held that the associate was not unjustly by retaining the full fees generated by the cases.

The court majority relied on four actors

the clients chose to continue with the departing associate, there was no agreement between the firm and associate ("sophisticated parties") as to the consequences of his departure, there were no covenenants not to competeor provisions for file ownership, and the firm was well-compensated for the associate's work.

The majority rejected the trial court's suggestion that the firm could sue the clients.

A dissent by Justice Crone would remand to award the firm fees based on quantum meruit

I respectfully dissent. While it may be true that C&M was "very well compensated" for Daly’s time while he was a salaried associate at the firm, that compensation is simply irrelevant to C&M’s quantum meruit claim for the 1000-plus hours that C&M’s attorneys contributed to the twenty-four cases that Daly took with him to Golitko & Daly.

(Mike Frisch)

August 27, 2014 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

A Well-Armed Judge

The Ohio Supreme Court entered an order disqualifying a judge from sitting in light of a recent felony indictment. reported on the charges

Mason, 46, of Cleveland, who is also a former Democratic member of the Ohio Senate and represented the 25th District from 2007 to 2008, is accused of attacking his wife Aisha Mason just after noon Aug. 2 while they were driving in their car with their two children on Van Aken Boulevard.

Court documents reflect that Mason hit his wife with his fists, slammed her head against the dashboard and bit her.

They have been married since 2005 and separated this past March.

In a 9-1-1 call, his wife told dispatchers he threw her out of the car, beat her and then drove off with the children.

And from Raw Story comes the results of a search of the judge's home

About 2,300 live rounds of various calibers
- Nearly 500 shotgun slugs
- A Mossberg 12-gauge shotgun
- A Winchester shotgun
- A 50-shell shotgun belt
- A FNH P90 semi-automatic rifle still in the box
- A JLD Enterprises Inc. PTR-91 semi-automatic rifle with a scope
- A Smith & Wesson handgun
- A Springfield Armory .40 caliber-handgun
- A sword
- Four canisters of smoke grenades
- A KDH bulletproof vest
- A Jaguar knife

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Reprimand For Drunk Driving Judge

The Ohio Supreme Court web page reports

The Ohio Supreme Court has publicly reprimanded Peter J. Corrigan, a judge for the Cuyahoga County Court of Common Pleas, following his convictions for operating a vehicle under the influence of alcohol and impeding the roadway.

In a unanimous decision announced today, the court adopted an agreement between Corrigan and the Ohio State Bar Association, which filed the charges alleging that he violated a judicial conduct rule.

In December 2012, the judge was found slumped over the wheel of his car in an intersection. While his foot was on the brake, his car was still in the drive position. Following his arrest, Corrigan pled no contest to the charges.

The court’s per curiam opinion noted that Corrigan was sentenced to three days in jail or participation in a driver-intervention program and received a one-year driver’s license suspension and a one-year period of community control. He also paid a fine and court costs.

Based on these penalties and other mitigating factors, the absence of any aggravating circumstances, and other cases involving similar offenses, the court agreed that a public reprimand was appropriate for Corrigan.

2013-1960. Ohio State Bar Assn. v. Corrigan, Slip Opinion No. 2014-Ohio-3678.

(Mike Frisch)

August 27, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Judges: The Next Generation

A recent opinion from the Florida Judicial Ethics Advisory Committee

May a sitting judge, who is not up for election in the current cycle, and  whose adult child is running for an open judicial position, attend the adult  child’s post-election gathering after all polls close in the relevant voting  area?



The adult child  of a sitting judge is running for an open judicial seat. The inquiring judge would like to attend the  adult child’s post-election gathering. The inquiring judge states that, in an attempt to avoid the appearance  of influencing potential voters, the judge would not attend the gathering until  all relevant polls are closed. The  inquiring judge adds that the post-election gathering will be comprised of  people who previously knew the judge as the candidate’s parent.

The majority's rationale

The intent of  Canon 7 is to separate judges and judicial candidates from political activity,  including partisan activities and, more relevant to the present inquiry,  endorsement of other candidates for public office. See Fla. JEAC Ops. 07-13, 06-13. Canon  7A(1)(b) quite specifically states that a judge shall not “publicly endorse or  publicly oppose another candidate for public office.” Canon 7D also states: “A judge shall not  engage in any political activity except (i) as authorized under any other  Section of this Code, (ii) on behalf of measures to improve the law, the legal  system or the administration of justice, or (iii) as expressly authorized by  law.” Accordingly, the dispositive  question is whether the inquiring judge’s proposed conduct constitutes a public  endorsement for purposes of Canon 7.

The majority  view is that it does not but, as noted, their position has taken into account  four unusual and very specific facts included within the inquiry. First, the Committee assumes this function is  intended as a typical victory party following the completion of the election. If so, it is difficult to conceive how the judge’s personal appearance  could influence any voters given that the act of voting was accomplished hours  before the event commenced. A different  conclusion would have been drawn if the inquiring judge’s child were in a  multi-candidate race with the prospect of a runoff.

Second, the  majority’s determination is limited to judicial races only, in which  partisanship is not a factor and the candidates themselves do not make  endorsements. In other words, this will  not be a combination of celebration and “rallying the troops” such as may be  experienced in partisan or issue-oriented politics. A post-election gathering can easily become a  political event based on what occurs, which will not be known until the event  is in progress. See, e.g., Fla. JEAC Op. 10-20: “[C]aution is strongly advised when  attending these types of events, since the purpose is for the citizens to voice  their opinions on varying issues and their expectation of receiving a pledge or  commitment on particular issues from the public figures and/or elected  officials.” See also Fla. JEAC Op. 98-17 (judicial  candidates should be cautious that their presence, remarks, and/or actions are  not construed by others to be political or partisan).

Third, it is  important that the inquiring judge not be up for election or retention during  the same cycle as the judge’s child, lest the event be perceived as  participation in a slate of candidates rather than an event limited to honoring  a specific and successful individual candidate. Conceivably a different conclusion might be drawn if both the judge and  the judge’s child had won their respective races, but for purposes of this  opinion we limit ourselves to the actual facts.

Fourth and  finally, the majority have placed considerable weight on the fact the candidate  is the inquiring judge’s child. It is  difficult to imagine that any voter would not assume that the judge supports the child’s electoral efforts even if the  judge cannot personally say so during the campaign.

The minority view is expressed in the opinion. (Mike Frisch)

August 25, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)