Friday, November 8, 2013
The Kansas Supreme Court affirmed the dismissal of a legal malpractice suit against a court-appointed attorney and the agency that administers the indigent counsel program.
The client was convicted of sex ccrimes. The conviction was set aside and the client entered a guilty plea to amended charges. He then sued the defense attorneys and the Board of Indigents' Defense Services for legal malpractice.
The court held that the Board is a subordinate government agency that does not have the capacity to sue or be sued.
Because the plea to lesser charges precluded a finding of actual innocence, the trial court did not err in dismissing the malpractice case. (Mike Frisch)
In a significant case involving the rights of witnesses in a bar disciplinary proceeding, the Iowa Supreme Court has held that a complaining witness has a right to be represented at a hearing by counsel "for the limited purpose of protecting rights personal to the witness in the proceeding."
The complaint alleged that a client was the subject of sexual misconduct on the part of the attorney. The Attorney Disciplinary Board filed a complaint based on the allegations and a hearing was scheduled before the Grievance Commission.
Counsel for the complainant entered an appearance and sought a continuance. The commission president invoked Iowa rules making bar procedings confidential and concluded that "the absence of her attorney from the hearing would cause no unfairness to [complainant."
The president thus quashed the attorney's entry of appearance in the matter.
The court here granted interlocutory review and reversed the order. The court held that a witness may have counsel present only when testifying.
Counsel cannot make objections or question the witness, other than to prevent a mistatement from entering the record.
The Board supported the position of the witness. Only the accused attorney objected.
I applaud this decision, although I think that all disciplinary proceedings should be public. (Mike Frisch)
A single retainer agreement sufficed to cover a second matter and entitled counsel to legal fees, according to a decision of the New York Appellate Division for the First Judicial Department:
The record establishes plaintiff's entitlement to recover the unpaid legal fees that arose from its representation of defendants in two underlying actions. Contrary to defendants' contention, the subject retainer agreement governs plaintiff's work on both underlying matters. In compliance with 22 NYCRR 1215.1, which mandates that retainer agreements contain an "explanation of the scope of the legal services to be provided" (22 NYCRR 1215.1[b]), the agreement specifies that plaintiff's services "will include legal representation and advice with respect to specific matters that you refer to the Firm." Although defendants initially sought plaintiff to represent them in only one of the underlying actions, it is undisputed that they requested plaintiff's services with respect to the other action, shortly thereafter. Plaintiff's representation of defendants in the latter matter therefore falls within the ambit of the retainer.
The client did not challenge the invoices when rendered and could thus not attack the reasonableness of the fees. (Mike Frisch)
Thursday, November 7, 2013
The Illinois Review Board has recommended a three year suspension of a former aide to disgraced former Governor Rob Blagojevich:
This matter arises out of Respondent's guilty plea and federal criminal conviction on one count of conspiracy to commit solicitation. The criminal charges against Respondent stemmed from his conduct while serving as chief of staff to former Illinois Governor Rod Blagojevich. As part of his guilty plea, Respondent admitted participating in a conspiracy with the former governor to solicit and demand things of value for Blagojevich in connection with the appointment of a United States Senator to fill the seat vacated by Barack Obama upon his election as President in 2008. In addition to pleading guilty, Respondent cooperated extensively with the government in the criminal matter and testified against the former governor at both of his criminal trials. Respondent received a reduced sentence of ten days in prison, two years of supervised release, and a $1,000 fine. Based upon his criminal conviction, Respondent was suspended on an interim basis by the Illinois Supreme Court on April 6, 2010.
After a hearing, the Hearing Board found Respondent committed a criminal act that reflects adversely on his honesty and fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, assisted another lawyer in committing ethical violations, and engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board recommended that Respondent be suspended for three years. The Hearing Board rejected the Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
Upon review, the Administrator asked that the Review Board recommend that Respondent be disbarred. After taking into account Respondent's extensive cooperation in the criminal matter as well as additional evidence in mitigation, the Review Board recommended that Respondent be suspended for three years. The Review Board also rejected Respondent's request that the suspension be imposed retroactively to the date of his interim suspension.
An attorney was censured by the New York Appellate Division for the Third Judicial Department for misconduct found in a federal district court matter, which concluded that the attorney
...knowingly and in bad faith falsely stated in a declaration filed on September 3, 2010 that she was unaware of the existence of a private annuity agreement, the existence of which was critical to issues before the court, until it was provided to her on July 27, 2010.
The federal court ordered disgorgerment of certain fees and imposed a public admonishment, notwithstanding the objections filed on the attorney's behalf.
The court precluded relitigation of the federal court findings and took into consideration the attorney's "unblemished disciplinary record, and her commendable professional reputation, as evidenced by the letters submitted in her behalf by colleagues..." in determining sanction.
She also was a candidate for judicial office. (Mike Frisch)
A court-appointed guardian ad litem forms an attorney-client relationship with an incarcerated inmate, according to an opinion of the West Virginia Supreme Court of Appeals.
When the incarcerated client directs the guardian ad litem to convey a statement to a third party, however, the attorney-client privilege is waived.
The case involves a domestic violence petition against one Chubby Hosten.
After a meeting with the client, the appointed guardian made an in-court statement at his client's direction. Charges of intimidation and witness harassment were brought based on the lawyer's statement:
what he [the client] said was if she doesn't leave me alone I am going to her place of employment and kill her....I do not believe that I am breaching confidentiality by saying that. I think there's actually an exception to the rules for this kind of information. But I was told by my client to say this, um, so there it is.
The prosecutor sought the lawyer's testimony and admission of the video of the in-court statement. The circuit court determined that the evidence was protected by privilege and the prosecutor appealed. (Mike Frisch)
The West Virginia Supreme Court of Appeals has issued a memorandum decision concluding that a graduate of Bishnu Ram Medhi Government Law College in Guwahati, India is not eligible for admission without examination.
The applicant is admitted in New York and had sought admission in West Virginia on what is "commonly referred to as reciprocity, based on her license to practice in New York."
The applicant was admitted in New York after obtained a Masters of Law and LLM from Fordham.
The Board of Law Examiners concluded that the applicant failed to satify the educational requirements for admission without examination.
The court agreed, finding that the common law education in India and 24 credit hours at Fordham did not meet the 30 credit requirement for admission based on her graduate work.
A non-attorney town court (and former) village justice has resigned from office after hiring his daughter as the village clerk.
It turned out to be a bad hire.
WRGZ.com had the story of the ensuing criminal charges
A village judge in Genesee County was in court Monday, but this time he found himself on the wrong side of the law. Robert Alexander is accused of approving falsified time sheets turned in by the court clerk - who happened to be his daughter.
Alexander is currently a Pembroke Town Judge, but previously served on the bench in the village of Corfu. He stood before a judge today to be arraigned on fraud and misconduct charges stemming from charges against his daughter, Brandi Watts.
Watts served as the Village of Corfu court clerk and is accused of falsifying her time sheets to receive pay for hours she did not work. The charges against her stemmed from an audit of the Village of Corfu by the New York State Comptroller, which discovered that about $10,600 could not be accounted for.
Watts faces 53 counts including grand larceny. She was held briefly in connection with the charges after her arrest last week, but was released on $10,000 bail.
Alexander is charged with coercion and official misconduct and only faces misdemeanors. He was never held in connection with the charges.
The judge spoke with reporters after his court appearance Monday, but would not comment on the charges against him other than to insist that he wouldn't do something like this.
"I won't say anything about the case I'll only say that I love the people of Corfu, and that I would never do anything as a born again Christian and as a man serving them. I would never think of breaking the law in any way, shape, or form," Alexander said.
Both Alexander and Watts plead not guilty to the charges against them.
The judge will be unable to preside over cases, as the State's Commission on Judicial Conduct has ordered that all cases assigned to Town of Pembroke Justice Alexander be reassigned.
The order bars him from future judicial office.
The audit of the State Comptroller is linked here. (Mike Frisch)
Wednesday, November 6, 2013
An attorney who agreed that he had engaged in ethical violations in three matters was suspended for 90 days by the Arizona Presiding Disciplinary Judge.
The agreed-upon sanction includes a requirement of probation for two years on reinstatement with monitoring by the bar's Law Office Management Assistance Program.
Also, the attorney must watch two videos from the bar's CLE program. One is "Ten Deadly Sins of Conflict," the other "Common Courtroom Conundrums: Candor, Confidences, and Courtesy." (Mike Frisch)
The Association of Professional Responsibility Lawyers ("APRL") has responded to a letter soliciting the organization's support for a resolution of the King County (Washington State) Bar Association urging no disciplinary action against attorneys who counsel clients on issues relating to compliance with "state and territorial laws legalizing the possession and use of marijuana."
The letter was signed by APRL President Mark L. Tuft.
APRL declined to either endorse or oppose the resolution.
Rather, the organization indicated that it would request a formal opinion from the ABA addressing the application of Model Rule 1.2(d) to the issue. (Mike Frisch)
Tuesday, November 5, 2013
A Tennessee judge charged with ethics violations for allegedly filing a bar complaint against an attorney in retaliation for the attorney's complaint against him has filed an answer denying misconduct and seeking dismissal.
In addition to procedural objections, the judge contends that "retaliation cannot be a basis for Formal Charges and the charges should be dismissed," that "the charges do not provide even a hint" as to the nature of the alleged misconduct and that the Board of Judicial Conduct had not acted promptly.
Further, the judge notes that the bar charges he filed against the attorney were dismissed even though he was never contacted and interviewed. (Mike Frisch)
The web page of the Virginia State Bar reports
On October 15, 2013, the Virginia State Bar issued a public reprimand to Mike Meier for violating professional rules that govern candor toward the tribunal and misconduct. This was an agreed disposition of misconduct charges.
No details are noted, although the reprimand will be posted in the future.
The attorney has been the subject of some publicity for his involvement in copyright infringement litigation.
He filed the linked complaint in the United States District Court for the Southern District of New York. (Mike Frisch)
The Pennsylvania Supreme Court has announced substantial revisions to its Rules of Professional Conduct.
The Disciplinary Board web page has highlights
- Rule 1.0, Terminology: definition of “writing” expanded to all electronic communications; minor change in comments.
- Rule 1.1, Competence: changes to comments, including two new sections.
- Rule 1.4, Communication: comment changed to indicate duty to respond promptly applies to all client communications.
- Rule 1.6, Confidentiality of Information: new language relating to detection and resolution of conflicts of interest, and efforts required to prevent the inadvertent or unauthorized disclosure or access to client information. Extensive changes to comments.
- Rule 1.17, Sale of Law Practice: changes to comments regarding confidentiality in negotiations of sale.
- Rule 1.18, Duties to Prospective Clients: changes in wording of Rule, significant changes in comments.
- Rule 4.4, Respect for Rights of Third Persons: Rule clarified to apply to electronically stored information; extensive changes to comments.
- Rule 5.3, Responsibilities Regarding Nonlawyer Assistance: extensive changes to comments.
- Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice Of Law: changes to comments.
- Rule 7.1, Communications Concerning a Lawyer’s Service: change to comment regarding application of Rule to public, prospective clients.
- Rule 7.2, Advertising: extensive changes to comments.
- Rule 7.3, Solicitation of Clients: substantive changes in title and content of Rule; extensive changes in comments.
The new rules go into effect on November 21. (Mike Frisch)
Monday, November 4, 2013
The Michigan Attorney Discipline Board has increased a tri-county hearing panel's sanction of a 180 day and fitness suspension to disbarment, finding that the attorney's claimed mitigation of alcoholism and depression did not cause his conversion of client retainers:
...while respondent's alcohol dependency and depression was undoubtedly real, the evidence simply does not support the claim of respondent that he was selectively impaired, i.e., that he was competent to try cases and comment upon them to the media, but that he could not manage "the business side of his practice."
The board also ordered restitution to two clients, regardless of whether the respondent seeks reinstatement.
The Examiner.com had the story. (Mike Frisch)
The November 2013 California Bar Journal reports the following recent sanction
[An attorney] was suspended for one year, stayed, placed on two years’ probation with an actual 90-day suspension and ordered to take the MPRE. The order took effect Aug. 16, 2013.
[The attorney] pleaded no contest in 2011 to defrauding an innkeeper, a misdemeanor conviction involving moral turpitude.
[She] was arrested in 2010 for failing to pay a cab driver and a bill for meal at a restaurant in San Jose, as well as a bill for two days’ stay at a hotel in Los Gatos. The charges relating to the restaurant and cab bills were later dismissed.
In mitigation, [the attorney] had no prior discipline, cooperated with the State Bar and was experiencing emotional difficulties at the time of her misconduct.
The Georgia Supreme Court has accepted a proposed suspension of eighteen months of an attorney who engaged in a consenual sexual relationship with a divorce client and assisted the client in false discovery responses that concealed the relationship.
The attorney was admitted in 2009 and was practicing as a solo.
The court considered the attorney's inexperience, lack of prior discipline, full cooperation and his belief that the relationship was not subject to discovery. (Mike Frisch)
A single justice of the Massachusetts Supreme Judicial Court rejected the suggestion that an attorney who was representing a "difficult" client in a care and protection proceeding faced an ethical dilemma.
Rather, the attorney made misrepresentations to a court and failed to correct the client's false testimony, knowingly disobeyed a court order and engaged in a conflict of interest.
He was suspended for a year and a day.
The client had a 17 year old daughter living with her. The daughter's father was her legal custodian and lived in a southern state. The Department of Children & Families obtained custody of the daughter after a suspected alcohol and drug overdose.
The daughter fled from DCF custody after a group movie outing. The attorney helped the daughter in her efforts to flee the jurisdiction by providing her with clothing and money for a bus ticket. The daughter left to return to her father, a fact known by both the attorney and his client.
He then represented the mother in juvenile court in the daughter's care and protection proceeding. He said that the daughter was "on the run" but failed to disclose that she was with the father. The mother also testified falsely about her knowledge concerning the daughter's whereabouts.
In the ensuing bar case, a hearing committee
credited his testimony that the whole situation had been very difficult for him and he found his duties to the client and the court to conflict. It cited his testimony that he had reviewed some MCLE material and law review articles concerning conflicts between [confidentiality and candor to a tribunal] and concluded that the authorities disagreed over the proper course of action.
The committee recommended a public reprimand. Bar Counsel appealed.
The Board of Bar Overseers rejected the "finding that [the mother's] status as a difficult client constituted a mitigating factor" and proposed a suspension of a year and a day.
Justice Cordy adopted the board's recommendation. The attorney "clearly intended to mislead the court" and "seriously undermined the court's efforts to reach the truth." (Mike Frisch)
Sunday, November 3, 2013
An attorney who had falsely represented that his injured client would reimburse $130,000 of an $800,000 settlement to a medical provider was publicly reprimanded by the Nebaska Supreme Court.
The attorney turned around and sued over his client's obligation after making the promise and accepting a settlement based in part on the statement.
The sanction was imposed as a result of a conditional admission of misconduct. (Mike Frisch)