Legal Profession Blog

Insurer May Sue Counsel For Malpractice

The Tennessee Court of Appeals revived a legal malpractice claim brought by an insurer against counsel in connection with a substantial settlement

Plaintiff insurance company is the insurance carrier for an insurance agency that was sued for negligence in five Tennessee lawsuits. After the underlying lawsuits were settled, the plaintiff, in its own name and on behalf of its insured, sued the law firm that represented the insured in the lawsuits. The plaintiff asserted a direct legal malpractice claim, a legal malpractice claim as subrogee of the insured, and a negligent misrepresentation claim. The trial court dismissed all claims. In particular, the trial court ruled that the plaintiff could not maintain a direct legal malpractice claim against the law firm due to the lack of attorney-client relationship and that the assignment of legal malpractice claims is prohibited in Tennessee. In the alternative, the trial court ruled that the plaintiff could not establish the damages element of its legal malpractice claims. The trial court further ruled that the plaintiff failed to establish a misrepresentation of existing or past fact. We affirm the trial court’s dismissal of the plaintiff’s direct legal malpractice action. As to the remainder of the trial court’s rulings, however, we reverse.

The underlying litigation

In late June 2015, Benjamin Brewer was driving a truck owned and operated by his employer Cool Runnings Express, Inc. (“Cool Runnings”). Mr. Brewer was traveling from Kentucky, where Cool Runnings is based, to Florida and back. On the return trip, Mr. Brewer had a collision in a construction zone near Chattanooga, Tennessee. The crash resulted in numerous injuries and six deaths.

The defendant in the underlying case

Brands maintained professional liability insurance through Plaintiff/Appellee Westport Insurance Corporation (“Westport”). The policy gave Westport the right and duty to defend, investigate, and settle all claims against Brands. Moreover, the policy stated that Brands was required to “cooperate with us in providing information and documentation requested by us regarding any CLAIM or POTENTIAL CLAIM reported under the POLICY[.]” The Westport policy also contained an express subrogation clause stating that if Westport “pay[s] any damages or claim expense, [Westport] shall be subrogated to the rights of the insured against any person or organization” and that Brands would do whatever was necessary to allow Westport to “bring SUIT in the name of the INSURED.”

Westport had retained the defendant law firm. 

The alleged malpractice involved the failure to raise a jurisdiction issue that Brands had as a defense

The complaint alleged that Howard Tate failed to properly investigate, identify, and raise a personal jurisdiction defense in the Underlying Lawsuits and that Westport was required to pay substantial sums due to Howard Tate’s negligence. Specifically, Westport alleged that had personal jurisdiction been timely raised in the Underlying Lawsuits, Brands would have been dismissed as a defendant and Westport would not have paid any damages. Westport also alleged that Howard Tate was guilty of negligent misrepresentation because it supplied Westport with faulty information meant to guide Westport’s litigation decisions.

Claims against Brands

In the course of the Underlying Lawsuits, some defendants identified Brands Insurance Agency (“Brands”) as a potential tortfeasor for having allegedly conducted a deficient driving history check on Mr. Brewer that led to his hiring as a truck driver with Cool Runnings. Brands was then added as a defendant in amended pleadings in the Underlying Lawsuits.

Insurer claim of legal malpractice

In this case, however, Westport does not dispute that it was never a client of Howard Tate in the Underlying Lawsuits. Indeed, Tennessee law makes abundantly clear that an insurance carrier providing counsel on behalf of the insured is not the client to whom any duties are owed.

But

While we do not minimize the concerns that led the Can Do court to prohibit, on public policy grounds, the commercialization of legal malpractice claims through assignment, we must conclude that those concerns, diminished as they are in the insurance subrogation context, do not outweigh the clear policy underpinning subrogation that damages be paid by wrongdoers. See also TIG Ins., 2001 WL 99832, at *3 (“In short, any danger that subrogation poses to the integrity of the attorney-client relationship seems far more theoretical than real.”). Rather, “[t]he only winner produced by an analysis precluding liability” based on an arbitrary prohibition divorced from the realities of the insurance subrogation context “would be the malpracticing attorney.” Great Am. E & S Ins. Co. v. Quintairos, Prieto, Wood & Boyer, P.A., 100 So. 3d 453, 467 (Miss. Ct. App.) (quoting Atlanta Int’l Ins. Co., 438 Mich. 512, 475 N.W.2d at 298) (finding that Mississippi law allows for both assignment and equitable subrogation of legal malpractice claims), aff’d in part, rev’d in part, 100 So. 3d 420 (Miss. 2012). We therefore conclude that public policy does not prohibit Westport from bringing a legal malpractice action against Howard Tate as subrogee of Brands.

Jurisdiction

the undisputed facts establish that Brands purposefully directed no actions to Tennessee as it relates to this particular case. The driving history check that gives rise to this claim was performed entirely outside of this State. This is the single act from which the claims at issue in the Underlying Lawsuits arise. Indeed, even the trial court acknowledged that there was no proof that any of Brands’ Tennessee customers were related to the accident that gave rise to the Underlying Lawsuits.

...the fact that Mr. Brewer ended up operating a vehicle in Tennessee following the driver history check is analogous to a company placing a product in the stream of commerce that makes its way to the forum state. Just as that action, “without more, is not an act of the defendant purposefully directed toward the forum state[,]” id. at 390, so too was Brands’ action in performing a driving history check entirely outside of the state of Tennessee, even with the possibility that the driver could eventually operate in the state. As a result, we must conclude, as a matter of law, that no reasonable judge could conclude that Tennessee had specific jurisdiction over Brands in the Underlying Lawsuits.

The defect in the underlying case

we conclude that based on the undisputed facts in the record, a reasonable judge would have granted motions to dismiss the Underlying Lawsuits based on its conclusion that Tennessee could exercise neither specific nor general personal jurisdiction over Brands. As such, Howard Tate failed to negate the essential element of damages as to the negligence claim against Howard Tate. Instead, summary judgment should have been granted to Westport on this issue.

The trial court further erred in granting summary judgment on the negligent misrepresentation claim.

Oral argument linked here.

Editor's note: I was in Chattanooga (AKA Civil War Heaven) when this horrific accident took place and well remember the coverage. (Mike Frisch)

Felony Rape Draws Bar Sanction

The Idaho Supreme Court accepted an attorney's resignation in lieu of disciplinary proceedings

On March 8, 2023, Mr. Schossberger was charged in Ada County with three criminal counts including one count of felony rape. Respondent pleaded not guilty to the charges. On June 27, 2024, Respondent was found guilty of felony rape after a jury trial. He was sentenced to 20 years ( 6. 5 years fixed) in prison and ordered to pay restitution. In the resulting disciplinary case, Mr. Schossberger admitted that the conduct for which he was convicted violated I. R. P. C. 8. 4( b) [ Committing a criminal act that reflects adversely on the lawyer' s honesty, trustworthiness, or fitness as a lawyer in other respects] and agreed to resign his license in lieu of disciplinary proceedings.

The Idaho Supreme Court accepted Mr. Schossberger' s resignation in lieu of disciplinary proceedings. By the terms of the Order, Mr. Schossberger may not apply for admission to the Idaho State Bar sooner than five ( 5) years from the date of his resignation. If he does apply for admission after five ( 5) years, he will be required to comply with all the bar admission requirements in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttable presumption of the " unfitness to practice law."

Idaho News reported on the conviction

 According to a recent news release, 53-year-old Steven Schossberger of Eagle was sentenced to prison on Thursday for raping a woman inside of his vehicle in March 2023.

In June, an Ada County jury convicted the defendant of rape. Schossberger went to a local restaurant where he met the victim and conversed with her. The defendant did not know the victim before the criminal conduct occurred inside his vehicle.

Ada County District Judge Annie McDevitt, who presided over the trial, sentenced the defendant to a 20-year sentence, with six-and-a-half years fixed before being eligible for parole.

Judge McDevitt considered the required sentencing factors and determined a prison sentence was appropriate. Judge McDevitt also imposed a No Contact Order prohibiting the defendant from contacting the victim for 40 years.

(Mike Frisch)

Enemy At The Gate[d Community]

The Florida Judicial Ethics Advisory Committee has issued an amended opinion on a judge's proposed advocacy

A judge may advocate pro se against creation of gated community adjacent to the judge’s property, which advocacy may include communicating with, meeting with, and attending public meetings involving legislative or executive staff and officials, posting signs in the judge’s yard, and wearing messaged apparel.

The judge may not: use the prestige of judicial office for personal gain, represent the interests of others or any group, participate in fundraising or partisan political activity, allow the judge’s advocacy to interfere with performance of judicial duties, or cause concern regarding the judge’s impartiality or independence. 

Issue

1.  Whether a judge may advocate on behalf of the judge to actively oppose creation of a gated community in a portion of the judge’s neighborhood by communicating with government staffers and county officials, attending and speaking at public meetings or hearings, wearing messaged apparel, and posting a sign in the judge’s yard opposing the gated community.

ANSWER:  Yes, as long as the judge proceeds purely pro se representing the judge and the judge’s interests only.

2.  Whether the judge’s non-judicial partner’s activities in opposition to the gated community are restricted by the Code of Judicial Conduct.

ANSWER:  No, as long as the partner does not appear to be acting indirectly as the judge’s representative and doing what the judge is prohibited from personally doing.

Reasoning

The judge is not planning to expound on the law, legal system or administration of justice when consulting with county staff and officials, nor when appearing at any public hearings; thus, that exception does not come into play.  The judge’s inquiry focuses on pro se activities on a matter involving the judge or the judge’s interests, which is specifically permitted by the second exception.  “Pro se” is defined as acting or appearing for oneself by Black’s Law Dictionary, 5th Edition, pg. 1099.  Thus, subject to compliance with other Code provisions, the judge would be relatively free to proceed individually to express and advocate for the judge’s personal concerns about the judge’s property and personal opposition to creation of a gated community when consulting with the county staffers or officials and while attending public meetings.

However, neither  of those Canon sections provides an exception that would permit the judge to advocate for the opposition group of half-acre homeowners that has interests and goals similar if not identical to the judge’s.  In the Commentary to Canon 5G, the distinction is made between a judge practicing law in the representation of others, which is prohibited, as opposed to proceeding pro se, i.e. self-representation, in legal matters which is permitted.  That Commentary continues by noting that “[a] judge may act for himself or herself in . . . matters involving appearances before or other dealing with legislative and other governmental bodies.”  Therefore, the judge should avoid acting or speaking on behalf of the opposition homeowner’s group, rather than proceeding purely pro se, as that likely falls outside what is permitted by the “pro se” exception to Canons 4C and 5C(1).  See JEAC Op. 2021-03.

There is nothing in Canon 4 or 5 that forbids the judge from pro se advocacy by utilizing a yard sign or wearing messaged apparel regarding the judge or the judge’s interests, as long as the sign or apparel does not violate any other provisions of the Code of Judicial Conduct.  Wearing certain messaged apparel while the judge is expressing opposition to the gated community could create the appearance that the inquiring judge was acting on behalf of the group rather than proceeding purely pro se; that would be ill-advised.  The JEAC has consistently declined to review or approve judicial campaign materials and we likewise will not review or approve anti-gated community yard signs or messaged apparel.

In any such pro se activities by the judge opposing the special taxing district and the gated community, Canon 1 requires that the judge must personally observe high standards of conduct and integrity.  In the interactions between the judge and others regarding this dispute, Canon 2A requires the judge “to respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  It is imperative that the judge’s position as a judge must not be injected into any aspect of the dispute, including communications with staff, county officials, or participation at any governmental meeting.  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  Fla. Code Jud. Conduct, Canon 2B.  The Commentary to Canon 2B reminds judges not to allude to their judgeship to gain any personal advantage or deferential treatment and to avoid use of the judge’s official letterhead when conducting personal business.

Canon 5A requires judges to conduct all extra-judicial activities in a way that does not demean the judicial office, interfere with performance of judicial duties, appear to be coercive, etc.  According to the information provided, in keeping with the directives of Canon 5C(3)(b)(i), the judge has neither personally or directly participated, nor lent the prestige of the judicial office in the solicitation of funds to support the homeowners group’s opposition to the gated community.  The inquiring judge is aware of and will abide by Canon 7’s admonition to refrain from partisan political activity in seeking a resolution of this dispute.

(Mike Frisch)

Stipulation Leads To Disbarment Recommendation

The New Hampshire Supreme Court Professional Conduct Committee recommends disbarment based on a stipulation and default

The Stipulation does not include an explicit admission of rule violations and thus does not appear to meet the definition of a "dispositive stipulation" in Supreme Court Rule 37A(III)(aa)(1). Rather, it better fits the definition of "partial stipulation" that "resolve[s] some but not all issues of fact, rule violation and sanction." Supr. Ct. R. 37A(III)(aa)(2)(A).

The Respondent failed to file an Answer to the Notice of Charges; thus, all factual allegations contained therein are deemed admitted. Supr. Ct. R. 37A(III)(b)(3)(A). So too are thealleged rule violations: Rule 1.3 (diligence), 1.4 (communication), 1.15 (safeguarding client property), 3.4 (disobeying court order), 8.1(b) (failure to respond to the discipline authority), 8.4(b) (committing a crime), 8.4(c) (dishonesty), and 8.4(a) (general rule).

As the Supreme Court found, in issuing a summary suspension, the Respondent's alleged rule violations constitute "serious misconduct," which "by itself could result in a suspension of disbarment," as alleged by the ADO. Supr. Ct. R. 37(9-B)(b); see also ABA Standards for Imposing Lawyer Sanctions 4.11 (disbarment appropriate when lawyer knowingly converts client property and causes injury) and 4.61 (disbarment appropriate when lawyer knowingly deceives client with intent to benefit the lawyer and causes serious injury). "[N]o single transgression reflects more negatively on the legal profession than a lie." O'Meara's Case, 164 N.H. 170, 181 (2012). Thus, even though there is not an explicit stipulation as to rule violations, given the posture of the case and the appropriateness of disbarment as a sanction for the rule violations alleged, the Committee treated the stipulation as a dispositive stipulation.

(Mike Frisch)

Lest Ye Be Judged

The Maine Supreme Judicial Court censured and suspended a probate judge

In March 2024, the Committee on Judicial Conduct filed a report with us alleging that Hancock County Probate Judge William B. Blaisdell IV committed three violations of the Code of Judicial Conduct. Specifically, the Committee alleged that Judge Blaisdell

(1) violated Rule 1.1 of the Code by failing to file federal and state income tax returns for the years 2020, 2021, and 2022; failing to pay court-ordered child support and attorney fees; and acting in contempt of the District Court in a family matter in which he was a party;

(2) violated Rule 2.16(A) of the Code by failing to respond to the Committee on Judicial Conduct despite repeated requests that he do so; and

(3) violated Rule 2.16(A) of the Code by acting with a lack of candor in asserting that he never received letters from the Committee.

Judge Blaisdell concedes that his conduct violated the rules, as the Committee alleged. The question before us is what sanctions to impose on Judge Blaisdell. We heard oral argument from the parties and have considered the record and the parties’ submissions. We now censure Judge Blaisdell; suspend him as a judge for a term of one year, with all but four months of the suspension suspended, provided that Judge Blaisdell satisfies the conditions set forth below; and order that he forfeit $10,000 from the salary otherwise payable to him, representing four months of salary for the period when Judge Blaisdell will not be serving as a probate judge.

Position of the parties

The Committee urges us to refer this matter to the Legislature for possible removal of Judge Blaisdell from office. Judge Blaisdell counters that we should order an entirely suspended suspension with conditions similar to those that have now been imposed upon him in a parallel bar disciplinary matter.

The court noted the problem of decreasing public confidence in the judiciary

We view Judge Blaisdell’s misconduct as egregious and deserving of significant sanction. Disobedience of a court order by anyone is serious, but contempt of a court order by a sitting judge cannot be tolerated. We cannot expect the public to have respect and confidence in our courts when a judge himself flouts court orders.

Sanction

Having all of these principles in mind, we conclude that the sanction must include public censure, which is accomplished by publication of this opinion, in the same manner as an opinion of this Court sitting as the Law Court. We also conclude that it is appropriate to impose a disciplinary suspension from judicial office for one year. We understand that the suspension of the only probate judge in Hancock County imposes a hardship on the people of that county as well as other probate courts. A partially suspended suspension would ameliorate that harm and provide a means of monitoring Judge Blaisdell’s conduct. For those reasons, we suspend all but four months of the one-year suspension, provided that Judge Blaisdell complies with the conditions imposed in his bar disciplinary matter. Finally, to emphasize the gravity of the misconduct, we order him to forfeit the amount of $10,000 from the salary otherwise payable to him. This amount represents the equivalent of four months of Judge Blaisdell’s judicial salary for the period during which he will be fully suspended from his judicial office.

(Mike Frisch)

Misappropriation Or Simple Conversion?

A suspension of 30 days has been imposed by the Oklahoma Supreme Court.

The representation involved a wrongful death claim

Prior to Mother's death, she underwent ankle surgery wherein she received wound care by home health care provider Amedisys, Oklahoma LLC ("Amedisys") and her daughter, Teresa. There was speculation that Amedisys negligently performed Mother's home health care which resulted in her death. Teresa sought attorneys to file medical negligence and wrongful death claims to no avail. Ultimately, Mother's other daughter, Pamela, was referred by attorney, Lynn Williams ("Williams"), to Respondent to pursue the wrongful death claim.

The claim was settled in mediation.

Respondent did not deposit the settlement proceeds with the Estate until May 2020--nearly one year later. Through June 2022, Hilton and Respondent litigated the issue of Respondent's attorney fees. The probate court ultimately awarded Respondent $52,968.50 for fees and costs in the wrongful death case and subsequent litigation. The probate court ordered the remaining balance of the settlement proceeds be paid to Hilton as his allowable attorney fees for his representation of the Estate. In the end, the heirs received none of the settlement proceeds from the wrongful death case.

Rejected charges

Rule 1.1 requires that a lawyer provide competent representation to a client Rule 1.3 requires that each lawyer act with reasonable diligence and promptness in representing a client. Complainant alleges Respondent failed to render competent representation of Pamela because Respondent admitted to never having handled a wrongful death case. The fact that Respondent had never handled a case of this type is insufficient to support a claim of lack of competence. Our standard for practicing law does not require expertise, in fact "[a] lawyer need not necessarily have . . . prior experience to handle legal problems of a type with which the lawyer is unfamiliar." Rule 1.1, ORPC, cmt. [2]. If Complainant's argument carried the day, all newly admitted attorneys would effectively lack competence to handle their first case. Further, testimony demonstrates that Respondent had handled several personal injury cases which encompass many similarities to wrongful death cases. The record fails to establish that Respondent lacked competence to handle the wrongful death case. Moreover, it is hard to reconcile a claim for lack of competence when Respondent obtained a presumably successful settlement for his client without objection from the heirs.

Complainant further alleges that Respondent lacked competence because he did not review the probate file. The record shows Pamela had the probate court's permission to hire counsel to pursue the wrongful death claim and Respondent properly initiated the wrongful death case on behalf of his client. Nothing in the record demonstrates Respondent would have been required to review the probate file, or that such a review would have affected Respondent's ability to pursue and settle the wrongful death case. Moreover, Complainant alleges Respondent violated Rule 1.3 because he delayed payment of the settlement proceeds. But based upon testimony, Respondent delayed payment of the settlement proceeds by the instruction of his client and Teresa's objection to Respondent's employment contract. Thus, we find Complainant has failed to establish by clear and convincing evidence that Respondent violated Rules 1.1 and 1.3, ORPC.

Rule 3.3., ORPC, concerns candor to the tribunal. Complainant asserts that several of Respondent's filings with the court included false statements. For example, in Respondent's Response to Motion to Reconsider and/or Clarify Order filed in Osage County on February 25, 2022, Respondent stated that but for Teresa's objection to Respondent's employment in April of 2017, the heirs would have received their money in May or June 2017 instead of 2020. Complainant contends that this statement is false because Respondent did not have sufficient funds in his trust account to pay the heirs during May or June 2017. However, the record shows that there were several days in which Respondent's trust account contained sufficient funds to pay the heirs in May or June 2017. Thus, we do not find Complainant's allegation is sufficient to support a violation of Rule 3.3, ORPC.

Rule 3.4(c) requires that a lawyer shall not knowingly disobey an obligation given by the court. Complainant contends that Respondent knowingly disobeyed the probate court's October 23, 2017, order when he failed to deposit the settlement proceeds with the Osage County Clerk. Instead of depositing the settlement proceeds, Respondent filed a Motion to Vacate, arguing he did not receive notice of the October 23, 2017, hearing. Respondent's decision to file the Motion to Vacate was not unreasonable when Respondent believed his clients' settlement was in jeopardy. Based upon the record, Respondent did not disobey the court's order, he objected to it and ultimately appealed it. As such we find Complainant failed to establish by clear and convincing evidence a violation of Rule 3.4(c), ORPC.

Established violations

Rule 1.5(e) prohibits a lawyer from dividing a fee between lawyers who are not in the same firm unless (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement and the arrangement is confirmed in writing; and (3) the total fee is reasonable. Based upon testimony, Respondent's client was unaware that Respondent paid Lynn Williams a $10,000.00 referral fee. The evidence demonstrates Pamela did not agree in writing to the referral fee arrangement. Respondent admitted to violating Rule 1.5(e)(2). Thus, we find Respondent violated Rule 1.5(e)(2), ORPC.

Rule 1.15 relates to a lawyer's duties in safekeeping client property. Violations of Rule 1.15 can be sorted into three categories: (1) commingling, (2) simple conversion, and (3) misappropriation. State ex rel. Oklahoma Bar Ass'n v. Combs, 2007 OK 65, ¶ 13, 175 P.3d 340, 346. The categories carry increasing levels of culpability, with misappropriation being the most serious. Id. Commingling occurs when client funds are combined with the lawyer's personal funds. Id. at ¶ 14, 175 P.3d at 346. Simple conversion occurs when an attorney applies a client's money to a purpose other than that for which it came to be entrusted to the lawyer. Id. at ¶ 15, 175 P.3d at 346. Misappropriation occurs when an attorney purposely deprives a client of money through deceit and fraud. Id. at ¶ 16, 175 P.3d at 346.

Respondent admits to a violation of Rule 1.15, ORPC. We accept Respondent's admission and find from clear and convincing evidence that his conduct violated Rule 1.15, ORPC. Various times after Respondent deposited the settlement proceeds into his trust account, and before he paid the settlement proceeds to the heirs, the balance of the settlement proceeds fell below the amount owed to the heirs. Moreover, Respondent admitted he spent trust account funds on other matters at his law practice, such as payroll and business expenses during a challenging period of time. Respondent's admission of wrongdoing and his use of the settlement proceeds for his own business expenses amount to commingling and simple conversion.

Sanction

When imposing discipline, we are mindful of its deterrent effect, as discipline is imposed to set an example for other lawyers and not to serve as punishment. The facts of this case are unique. First, over four years have lapsed between the filing of the grievance and today's opinion, with no explanation reflected in the record for this unreasonable delay. Due to the lapse of time, Respondent has undoubtedly endured hardship and additional expenses during Complainant's investigation into events that occurred almost seven years ago. Moreover, Respondent has made it clear that he has since learned from his mistake and has taken the necessary steps to prevent this conduct from happening again. Second, the record demonstrates Respondent's conduct was due to sloppy negligence, not greedy intent. We are mindful of the severity of mismanagement of client's funds; however, a suspension of six months--as applied to the facts of this case--would serve a punitive result as opposed to a necessary deterrent. Accordingly, we find that our goals are best met by the imposition of a 30-day suspension from the practice of law to begin the date of this opinion.

Justice Combs dissented in part and would find misappropriation

 I concur in the majority's decision to discipline the Respondent, but I dissent from imposition of discipline that amounts to a mere slap on the wrist and from the denial of Complainant's application to assess costs in toto. My dissent concerning the degree of discipline arises from my disagreement with the majority's characterization of Respondent's "use of the settlement proceeds for his own business expenses" as something that "amount[s] to commingling and simple conversion" and that "was the result of a confluence of errors and oversight as opposed to an intent to defraud." Majority Op. ¶¶ 17, 33. This error in weighing Respondent's actions leads to a virtual cascade of errors, such as the majority's reliance upon State ex rel. OBA v. Combs, 2007 OK 65, 175 P.3d 340, as an analogous case involving "commingled and converted funds," see Majority Op. ¶ 31, and their denial of all costs associated with this Rule 6 disciplinary proceeding...

 Complainant proffers State ex rel. OBA v. Mortensen, 2023 OK 32, 527 P.724--one of this Court's more recent cases involving misappropriation--for our consideration. In that case, the attorney was disbarred for misappropriating client funds, failing to diligently represent clients, and failing to keep clients informed. But Complainant is not seeking disbarment of the Respondent; Complainant is only asking for a 6-month suspension. That is a reasonable adjustment that accounts for the differences between this case and Mortensen. I would impose the requested 6-month suspension upon Respondent as discipline.

(Mike Frisch)

When Winning May Be Malpractice

The Minnesota Supreme Court reversed in part, vacated and remanded in a legal malpractice case where the plaintiff had prevailed in the underlying matter

This case comes to us on an interlocutory appeal of a partial final judgment under Minn. R. Civ. P. 54.02. The parties seek clarification regarding a legal question we have not previously decided: whether a plaintiff may bring a legal malpractice claim to recover attorney fees incurred due to the professional negligence of counsel in prior litigation, despite an ultimately successful outcome in the prior litigation. As a threshold matter, we must also decide whether the court of appeals had jurisdiction to resolve other legal malpractice claims that were not decided by the district court or certified as part of the partial final judgment. We conclude that some of the court of appeals’ legal rulings must be vacated for lack of appellate jurisdiction because the court of appeals purported to resolve issues arising from nonappealable orders under Minn. R. Civ. App. P. 103.03. As to the legal malpractice claim over which we do have jurisdiction, because we conclude that a plaintiff may satisfy the but-for causation element of a professional negligence claim even when the underlying litigation was ultimately successful, we reverse the court of appeals’ decision affirming summary judgment on the professional negligence claim of Reichel Foods, Inc. and remand for further proceedings.

Parties and claims

Appellant Craig Reichel is a Rochester businessperson who owns several companies relevant to this case. The largest of these is appellant Reichel Foods, Inc. He also owns three limited liability companies: appellant Coyote Creek Outdoors, LLC (“Coyote Creek”), appellant Herdbull Holdings, LLC, and appellant Bullets & Broadheads, LLC (collectively, “the LLCs”). Here, appellants advance legal malpractice claims arising from the legal representation provided in a litigation matter by the respondents: the law firm Wendland Utz, LTD, and one of its former lawyers, Jerrie Hayes (collectively, “Wendland Utz”) in a litigation matter. Although the representation yielded an ultimately favorable outcome, Reichel alleges that Wendland Utz failed to provide a competent defense, and as a result, the favorable outcome came only after incurring substantial attorney fees and costs to correct the law firm’s negligence.

Craig and the LLCs were sued by his brother

Craig had a longstanding relationship with the Rochester law firm Wendland Utz, LTD, which assigned one of its litigators, Jerrie Hayes, to defend Craig and the LLCs in connection with Bryan’s lawsuit (Craig had not previously worked with Hayes). But as the district court in the legal malpractice case aptly observed, while discovery proceeded in the case, “the litigation began to unravel.”

When things went south

By December 2013, another Wendland Utz attorney had taken over the case. The new attorney advised Craig to have the LLCs file for bankruptcy under the representation of the Twin Cities law firm Larkin Hoffman Daly & Lindgren Ltd. The new strategy was to litigate the proceedings in a fresh forum because Craig’s new attorney “felt that it was pretty unlikely” that Craig would succeed on any further discretionary rulings and that “bridges had been burned” with the district court judge. Craig took the advice, and the LLCs filed petitions in bankruptcy court, seeking reorganization under Chapter 11. Bryan’s district court lawsuit was stayed pending the approval of the bankruptcy plan.

The bankruptcy court eventually confirmed the bankruptcy plan and found that Craig was the sole owner of the LLCs. Because the bankruptcy court’s findings effectively nullified Bryan’s claim of ownership interest in Coyote Creek, Brya  stipulated to the dismissal of the district court claims against the LLCs, but the claims against Craig himself remained. Craig moved for summary judgment on the remaining claims against him, which the district court granted. The court of appeals upheld the district court’s decision.

Legal malpractice claim

Reichel’s theory of the case was that Wendland Utz was negligent in defending the underlying litigation, and this negligence resulted in Reichel incurring substantial attorney fees and costs to correct the negligence, despite the ultimate success of the case. According to Reichel’s expert affidavit, the additional litigation expenses totaled over $940,000.

Court of Appeals jurisdiction

We conclude that the court of appeals lacked jurisdiction to consider Reichel’s claims for breach of contract and breach of fiduciary duty, as well as the professional negligence claims of appellants other than Reichel Foods. Vacatur is proper when the court of appeals lacked jurisdiction. See Howard v. Svoboda, 890 N.W.2d 111, 116 (Minn. 2017). Accordingly, we vacate the rulings of the court of appeals on all of the legal malpractice claims, with the exception of the professional negligence claim brought by Reichel Foods.

On the issue addressed

we hold that in a professional negligence claim such as that presented here, when the plaintiff alleges some type of harm other than the negligent loss of a claim or defense in litigation, the case-within-a-case methodology is inapplicable, and the plaintiff must rather demonstrate that the alleged harm would not have occurred absent the defendant’s negligence. The manner in which “the fourth element in a legal malpractice action has, in the past, been formulated,” id., is just that—a formulation, which must be adapted to the contours of the particular circumstances necessary to prove but-for causation in any professional negligence claim. The case-within-a-case formulation of but-for causation, which still applies when a legal claim is lost or damaged, is inapplicable here, when the alleged harm occurred despite a legal victory.

...given the weight of our case law and the case law of other jurisdictions, we conclude that the case-within-a-case formulation of the but-for causation element is not a bright-line rule that applies in every instance of alleged negligence in litigation matters.

Floodgates

Lastly, we are unpersuaded by the policy argument, advanced by Wendland Utz and amici Minnesota Firm Counsel Group and Minnesota Defense Lawyers Association, that our holding today will open the floodgates to a wave of unmeritorious professional negligence claims against lawyers. We find unwarranted the assertions of amici that the straightforward application of the but-for causation element for professional negligence claims will hold attorneys ultimately liable merely because their clients’ cases “could have been litigated more cheaply.”

Rather, we observe that in most cases, the most significant bulwark against unmeritorious malpractice claims exists in the plaintiff’s burden to show negligence—a breach of the applicable duty of care. “An attorney who acts in good faith and in an honest belief that his advice and acts are well founded . . . is not answerable for a mere error of judgment.”

Result

Given that the case-within-a case approach is not a hard-and-fast requirement that mandates dismissal when the alleged injury is not loss or damage to a claim or defense, the district court erred by granting summary judgment based upon the inability of Reichel Foods to demonstrate that, but for the law firm’s conduct, Reichel would have been successful in the defense of the action. When, as here, the question is only whether, as a matter of law, a plaintiff can bring a professional negligence claim when the plaintiff was ultimately successful in the underlying litigation matter, we conclude that the ordinary rules of negligence favor the ability to sue (sustaining and actually proving that claim being another matter).

Wendland Utz argues that we should not allow “an open-ended, unlimited theory of recovery of legal fees,” and amicus curiae Minnesota Firm Counsel Group urges us to impose strict limitations on the recovery of corrective attorney fees. Because this case comes to us on an interlocutory appeal of a partial final judgment as to one element of one legal malpractice claim against one defendant, however, it would be premature for us to say more about how the litigation should proceed on remand. This appeal concerns an extremely narrow legal issue—whether the case-within-a-case element is an absolute requirement for a professional negligence claim arising out of a litigation matter. Wendland Utz did not move for summary judgment on the ground that there is no genuine issue of material fact as to its negligence. And the district court ruled that there is a genuine issue of material fact on the element of an attorney-client relationship.

(Mike Frisch)

Nearly 24 Hours A Day

The Illinois Administrator has filed a complaint alleging billing misconduct by an attorney in court-appointed juvenile matters

In or about August 2021, the Circuit Court implemented new procedures for collecting data and reviewing fee petitions and corresponding court orders for payment to court-appointed attorneys in juvenile and criminal court cases. This allowed the Circuit Court’s Finance Staff to review approximately 346 fee petitions submitted by Respondent as well as the court orders providing for payment of fees and expenses to him.

During a 12-month period beginning on April 1, 2021, and continuing through March 31, 2022, Respondent filed fee petitions billing the Circuit Court for over 4,400 hours as a court-appointed attorney in the Circuit Court of Cook County.

Respondent billed an average of 84.63 hours per week during the twelve-month period from April 1, 2022, through March 31, 2022. During that time period, the Circuit Court’s finance staff’s review revealed that Respondent submitted certified fee petitions in which Respondent claimed that he had worked more than 20 hours on at least 17 dates.

Respondent claimed in his fee petitions that on December 6, 2021, he worked a total of 23.75 hours. Respondent billed for 10.25 hours as “in court” time. Of the 10.25 hours of “in court” time that Respondent billed for that day, four hours were billed for the presentation of fee petitions. Respondent also billed the Circuit Court for four hours for appearing in court, via Zoom, on two separate matters where he included in his description an entry entitled “awaiting other cases.”

Respondent claimed in his fee petitions that on December 14, 2021, he worked a total of 23.75 hours. Respondent billed for 10 hours as “in court” time. Of the 10 hours that Respondent billed, five hours was solely for the presentation of his fee petitions.

Respondent submitted certified fee petitions in which Respondent asserted that between April 1, 2021, and March 31, 2022, he worked between 15 and 20 hours on 113 dates.

For the days of Sunday, October 17, 2021, through Wednesday October 20, 2021, Respondent consecutively billed 20.25 hours, 20.25 hours, 17.00 hours, and 20.25 hours, for a total of 77.75 hours during a 96-hour period.

Between Sunday, November 14, 2021, and Friday, November 18, 2021, Respondent consecutively billed 19.00 hours, 15.50 hours, 19.75 hours, 16.00 hours, and 18.00 hours, for a total of 88.25 hours in a 120-hour period.

Between Tuesday, December 14, 2021, and Friday December 17, 2021, Respondent consecutively billed 23.75 hours, 18.00 hours, 15.75 hours, and 16.25 hours, for a total of 73.75 hours in a 96-hour period.

Between Sunday, January 30, 2022, and Friday, February 4, 2022, Respondent consecutively billed 23.25 hours, 14.25 hours, 15.00 hours, 19.50 hours, 17.00 hours, and 18.75 hours for a total of 107.75 hours in a 144-hour period.

During the 12-month period from April 1, 2021, to March 31, 2022, Respondent falsely represented his hours worked in the fee petitions described above. Respondent consistently over-stated his hours worked. Respondent did not perform over 4,400 hours of billable work in the 12-month time period from April 1, 2021, through March 31, 2022. Respondent knew that his fees petitions overstated the number of hours worked at the time he submitted them. When Respondent submitted to the Circuit Court fee petitions totaling over 4,400 hours he did so dishonestly.

(Mike Frisch)

No Conflict Where Adverse Witness Paid Defendant's Legal Fees

The New Jersey Appellate Division affirmed the denial of post-conviction relief to a defendant convicted of murder who claimed a conflict of interest

In this opinion we afford substantial discussion as to one of those claims: whether defendant's representation was compromised because his coparent and girlfriend, who was called at trial as a fact witness for the State, paid for the legal fees of his private criminal defense attorney. Defendant alleges the fee arrangement created an untenable conflict of interest.

For the reasons that follow, we affirm the PCR court's determination that defendant was not deprived of effective representation of his counsel, who represented him zealously at trial. In particular, defense counsel vigorously cross examined the witness, who had paid his fees, about certain incriminating statements she made regarding defendant to police detectives.

The crime

Briefly stated, the indictment stemmed from the fatal stabbing of the victim, Christopher Sharp, on August 18, 2013, at a house in Perth Amboy where defendant's girlfriend and co-parent, Alicia Boone, resided with defendant and her three children. Sharp was Boone's cousin. A party took place at the house that night, at which defendant was present. An argument between defendant and Sharp ensued. According to the State's proofs, defendant stabbed Sharp three times sometime in the early morning.

Fee payer ethics issue

Under New Jersey's Rules of Professional Conduct (the "RPCs"), "lawyer[s] shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship; and (3) information relating to representation of a client is protected." RPC 1.8(f).

Here

As the PCR court found, Boone did not direct or interfere with defendant's counsel's representation of his client. Nor is there evidence she communicated with his counsel concerning the substance of the case. As described by Boone in her testimony, she had three meetings with counsel at the outset of his work to discuss and arrange payment, and that was essentially the end of their contact. No billing disputes or payment problems were identified. And defendant's counsel had no attorney-client relationship with Boone. To the contrary, as the PCR court found, defendant's counsel recommended Boone secure her own attorney to represent her interests—which she did.

Consent

As to the first condition concerning defendant's informed consent, we acknowledge the record contains no documentation of such express consent. Defendant alleges in his petition that counsel "never advised him or sought a  waiver" of a potential conflict.

Because defendant's counsel is now deceased, the veracity of that claim cannot realistically be disproved. But we decline to hinge a finding of a per se conflict and constitutional violation upon such a "bald assertion."

Zeal

Counsel advocated fiercely to negate Boone's second and third police statements about defendant "poking" the victim. He elicited extremely favorable testimony from her attesting that she did not believe defendant killed Sharp. Any conceivable division of counsel's loyalties that could be the subject of a waiver was, in retrospect, purely hypothetical.

Advice for future situations

We take judicial notice it is not unusual that a defendant's family and friends will pay a private defense lawyer's fees to represent a loved one or close acquaintance who is accused of a crime. Such private defense counsel perform a vital institutional role in supplementing the services provided by the Office of the Public Defender to clients who personally cannot afford counsel. In a few instances, as here, that payer may also be a potential fact witness for the State at the ensuing criminal trial. We discern no per se constitutional prohibition on such fee arrangements if they are disclosed and with the assent of the defendant and where the counsel's vigorous representation of the client is not being materially limited by the payer.

That said, going forward, we recommend that private criminal defense counsel document the client's informed consent with a written acknowledgment or some other recorded means at the time the fee arrangement is made. See RPC 1.8(f (1). There may, of course, be instances in which the payer's testimony for the State is anticipated to be so hostile to a defendant's interests that the lawyer is, in fact, materially limited. This is not one of them.

We also reject any notion that defendant's counsel here was materially limited by the fact that Boone paid his legal fees.

Conclusion

we affirm the PCR court's sound rejection of defendant's conflict of interest argument. No evidentiary hearing on the issue was required in these circumstances.

(Mike Frisch)

Parole Hearing Testimony Absolutely Privileged

The Tennessee Court of Appeals held that testimony of a parole officer at a parole hearing was absolutely privileged

Plaintiff was sentenced to thirty years in prison after pleading guilty to two counts of attempted first degree murder and one count of solicitation of first degree murder for attempting to kill his wife. See Wortman v. State, No. M2021-00068-COA-R3-CV, 2021 WL 5174701, at *1 (Tenn. Ct. App. Nov. 8, 2021), perm. app. denied March 24, 2022. On September 19, 2019, Plaintiff had a parole hearing. Defendant, a detective who worked on Plaintiff’s case, testified unfavorably to Plaintiff being granted parole.

Statements that led to defamation suit

on top of all the conversations that have been brought up today, again, I have to refer to the lack of remorse. It is the dictionary definition of a narcissist. And I’m looking at one every time I see Mr. Wortman. The man can sit there stoically listening to all this testimony and wasting countless hours petitioning the courts of this state, stating that he’s a righteous individual that (indiscernible). I have no doubt that he’s probably remorseful, to some extent, that he got caught. And it’s a shame that we’re having to sit here and waste your time, Mr. Chairman, on a sentence that he pled to. He should have taken -- he’s lucky he didn’t get more time in prison. And it would be a travesty and an injustice for this justice system to allow him parole before his 30 percent on that 30 years.

Holding

In sum, Defendant made statements in the course of Plaintiff’s parole hearing before the parole board, then exercising a judicial function, that were relevant and pertinent to the issues involved. Thus, Defendant’s statements at Plaintiff’s September 19, 2019 parole hearing were absolutely privileged because “[i]t is generally recognized that statements made in the course of a judicial proceeding that are relevant and pertinent to the issues involved are absolutely privileged and cannot be the predicate for liability in an action for libel, slander, or invasion of privacy.” Lambdin, 559 S.W.2d at 792. Accepting all of Plaintiff’s factual allegations as true and viewing them in the most favorable light, Plaintiff has failed to state a claim for which relief can be granted. We affirm.

(Mike Frisch)

Second Offense

Dan Trevas has a summary of a bar discipline decision issued tnoday by the Ohio Supreme Court

The Supreme Court of Ohio today suspended a Cuyahoga County attorney for two years, with 18 months stayed, based partly on his felony conviction for using his client’s settlement funds to pay his own expenses.

In a per curiam opinion, the Supreme Court suspended Robert Smith III of Beachwood. The Court found Smith violated several professional conduct rules when he withheld for two years the settlement funds he received for a client, and for misappropriating money he owed to a medical center that treated many of his clients.

Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Chief Justice Sharon L. Kennedy concurred in part and dissented in part and would impose an indefinite suspension. Justice Jennifer Brunner did not participate in the case.

Second Conviction Leads to Additional Sanction
The Cleveland Metropolitan Bar Association filed a complaint against Smith in 2023 with the Board of Professional Conduct based on his most recent ethics violations. However, Smith was suspended 30 years ago after he was convicted in 1993 in federal court for theft of government property. He was suspended for two years and reinstated to the practice of law in 1995.

In 2014, Wilma Javey hired Smith to file a personal injury lawsuit against a Cincinnati area transit authority after she fell on a bus. Smith filed the lawsuit in March 2016. Nearly three years later, Javey agreed to settle the case for $12,000.

Smith deposited the settlement check into his client trust account. He then sent Javey a statement showing he was deducting $3,996 for his legal fees and another $840 in expenses. Javey told Smith she thought his fee was excessive and requested an itemized list of services he provided.

Smith sent her a list but did not give her any of the settlement. She filed a grievance against him. In April 2021, more than two years after the settlement, Smith agreed to waive his fee and provided Javey the full $12,000.

In the interim, authorities investigated the use of Javey’s funds while in Smith’s client trust account. Smith admitted the account balance dropped below the amount he proposed to pay to Javey. The settlement money was used during those two years to pay Smith’s business and personal expenses.

He was indicted in January 2022 for grand theft for retaining her settlement and spending it for his own purposes. He pleaded guilty to fourth-degree felony theft and was accepted into a diversion program that allowed him to avoid incarceration. He was placed on one year of community control.

Lawyer Withholds Payments to Medical Center
When representing injured clients, Smith often referred them to Chagrin Medical Center. Smith made arrangements with the center’s owner to delay the billing for the client’s treatment until after the cases were settled. In 2020, Chagrin was awaiting payment for 10 of Smith’s clients.

In the meantime, Smith settled the cases of four clients who owed money to the medical center, two in 2017 and one each in 2018 and 2019. Instead of paying the client charges owed to Chagrin from the settlements, Smith kept the money. The center’s owner filed a grievance against Smith in 2020. In April 2021, Smith paid Chagrin $10,108 to cover the costs of the four clients’ treatments.

Smith admitted he did not have the money in the client trust account to pay Chagrin promptly after those settlements because he used the funds for his business and personal expenses. Smith was asked to explain at his disciplinary hearing why he misappropriated the funds. He responded that he “guessed” it was out of desperation, and he was “trying to stay afloat.”

The bar association and Smith stipulated, and the board agreed, that Smith violated several rules, including failing to keep client funds separate from his own property, not promptly delivering funds to clients and others owed money, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board recommended the Court suspend Smith for two years. Part of the reasoning was that Smith had previously been convicted of a crime and suspended in the 1990s. The bar association and Smith suggested that less emphasis be placed on a 30-year-old conviction. They proposed that he be suspended for two years with 18 months stayed under certain conditions and that he serve 18 months of probation monitored by another attorney if he is reinstated to practicing law.

The Court found the partially stayed suspension was appropriate. In addition, Smith must complete six hours of continuing legal education on managing a law office and client trust account, and he must not commit any further misconduct. If reinstated, he must serve 18 months of monitored probation with an attorney who will aid him in adopting and implementing policies and practices to ensure he complies with professional conduct rules.

The Court also charged Smith with the costs of the disciplinary proceedings.

2023-0708. Cleveland Metro Bar Assn. v. Smith, Slip Opinion No. 2024-Ohio-4502.

(Mike Frisch)

Ghislaine Maxwell Conviction Affirmed

Ghislaine Maxwell's criminal conviction has been affirmed by the United States Court of Appeals for the Second Circuit

On appeal, the questions presented are (1) whether Jeffrey Epstein’s Non-Prosecution Agreement (“NPA”) with the United States Attorney’s Office for the Southern District of Florida (“USAO-SDFL”) barred Maxwell’s prosecution by the United States Attorney’s Office for the Southern District of New York (“USAO-SDNY”); (2) whether Maxwell’s second superseding indictment of March 29, 2021 (the “Indictment”) complied with the statute of limitations; (3) whether the District Court abused its discretion in denying Maxwell’s Rule 33 motion for a new trial based on the claimed violation of her Sixth Amendment right to a fair and impartial jury; (4) whether the District Court’s response to a jury note resulted in a constructive amendment of, or prejudicial variance from, the allegations in the Indictment; and (5) whether Maxwell’s sentence was procedurally reasonable.

We hold that Epstein’s NPA did not bar Maxwell’s prosecution by USAO-SDNY as the NPA does not bind USAO-SDNY. We hold that Maxwell’s Indictment complied with the statute of limitations as 18 U.S.C. § 3283 extended the time to bring charges of sexual abuse for offenses committed before the date of the statute’s enactment. We further hold that the District Court did not abuse its discretion in denying Maxwell’s Rule 33 motion for a new trial based on one juror’s erroneous answers during voir dire. We also hold that the District Court’s response to a jury note did not result in a constructive amendment of, or prejudicial variance from, the allegations in the Indictment. Lastly, we hold that Maxwell’s sentence is procedurally reasonable.

Epstein NDA did not bind New York federal prosector

Since 1789, while the number of federal districts has grown significantly, the duties of a U.S. Attorney and their scope remain largely unchanged. By statute, U.S. Attorneys, “within [their] district, shall (1) prosecute for all offenses against the United States; (2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned.” Again, the scope of the duties of a U.S. Attorney is cabined to their specific district unless otherwise directed.

In short, Annabi controls the result here. Nothing in the text of the NPA or its negotiation history suggests that the NPA precluded USAO-SDNY from prosecuting Maxwell for the charges in the Indictment. The District Court therefore correctly denied Maxwell’s motion without an evidentiary hearing.

New trial motion based on jurot non-disclosure of childhood abuse

Maxwell contends that she was deprived of her constitutional right to a fair and impartial jury because Juror 50 failed to accurately respond to several questions related to his history of sexual abuse as part of the jury questionnaire during jury selection. Following a special evidentiary hearing, the District Court denied Maxwell’s motion for a new trial.

We review a District Court’s denial of a motion for a new trial for abuse of discretion. We have been extremely reluctant to “haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.” While courts can “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed. R. Crim. P. 33(a), they should do so “sparingly” and only in “the most extraordinary circumstances.” A district court “has broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced” and is shown deference on appeal.

The district court did not abuse its discretion in denying the new trial motion. (Mike Frisch)

Sun Warrior

Ohio Disciplinary Counsel has charged an attorney with misconduct after his employment had been terminated by a law firm.

The firm employees had gathered outside their office to observe the April 8, 2024 solar eclipse.

Respondent allegedly parked his car across the street from the office and "had a shaved head and marked his face with paint."

Respondent retrieved a small axe or hatchet and metal baseball bat from the back of his car.

In the presence of the Maislin Law employees, respondent made threatening remarks, including asking Attorney Blake Maislin to come outside and face him in a duel.

Most of the Maislin Law employees retreated into the office building.

Teresa Mounce, respondent’s former legal assistant at Maislin Law, approached respondent.

She told respondent that he needed to calm down and leave. A few minutes later,

She told respondent that he needed to calm down and leave. A few minutes later, respondent left.

However, 5 to 10 minutes later, respondent drove past the Maislin Law building.

Staff from Maislin Law called the police, but they arrived after respondent had already left.

A text to Mounce that evening

I’m a Blackfeet Warrior. You want to do work? I will take scalps.

I was praying Blake would come out. I was praying that he would choose the bat since he likes baseball, so I could execute my plan and take his scalp and drink his blood in front of you and while I raged like a deranged starving cornered vengeful beast that prayed on its predator.

So don’t think that the jew [his former employer] whose dad was a judge and family was in the trucking industry, who I outweigh by 40 lbs of muscle, who I shaved my head in preparation for would ever have a chance in warfare.

I drew a bulls on my Adams Apple and jugular in case he chose the hatchet but would have fucking seriously pissed me off because I couldn’t take scalps until I brained him with that bat.
…
There is another device called a Molotov cocktail that I think would be tremendously effective during a big mediation, bring some innocents into it, to exponentially heighten the mother fucking horror.

Respondent is charged with violations of Ohio Rules 8.4(b) and (h). (Mike Frisch)

Blame Game

An Illinois Hearing Board recommends disbarment in a matter involving misappropriations from a host of clients

The allegations deemed admitted establish that Respondent dishonestly misappropriated almost $738,000 in 29 client matters, and failed to respond to the ARDC’s lawful demands for information in connection with its investigations regarding his conduct. By that conduct, Respondent violated Illinois Rules of Professional Conduct 1.15(a), 1.15(d), 8.1(b), and 8.4(c).

In aggravation, Respondent engaged in an extensive pattern of misconduct spanning several years and involving 29 separate matters in which he dishonestly misappropriated a staggering amount of client and/or third party funds; he was an experienced practitioner at the time of his misconduct; he harmed his clients by depriving them of funds to which they were entitled; he harmed the legal profession by causing his clients to lose trust in lawyers; rather than acknowledging and accepting responsibility for his wrongdoing, he blamed others, including his clients and former colleagues, for it, and showed no remorse whatsoever for the harm his misconduct caused; and he did not fully participate in or cooperate with the disciplinary process, in that he failed to file his answer to the Complaint and Rule 253 disclosures even after being given three extensions of time to do so.

The hearing board attached the Administrator's complaint. (Mike Frisch)

Settled Jurisprudence

The Georgia Supreme Court has disbarred an attorney

With regard to SDBD No. 7694,5 the facts show that Raines represented two minor siblings in a personal injury matter and, upon settling their claims in June 2021, received settlement checks in the amount of $20,000 and $23,000, which he deposited in his IOLTA account. In the months following the settlement, the siblings’ mother emailed and called Raines on numerous occasions to inquire about the settlement and disbursement of the funds. Raines only responded to some of the mother’s contact attempts and failed to disburse the settlement funds, telling the mother that he was working on reducing or eliminating the hospital liens that had been filed for the siblings’ treatment. However, Raines failed to take any action on paying the hospital liens. Additionally, Raines withdrew the siblings’ funds for his personal use—allowing the balance in the account to drop as low as $1.37 when, after attorney fees, the account should have held $27,838.68—and failed to maintain complete records. In May 2022—eleven months after settling the siblings’ claims Raines issued checks from his personal operating account to the siblings for $14,907.72 and $12,930.96; Raines did not disburse the funds to the siblings from his IOLTA account, nor did he satisfy the third-party interests in the settlement funds, as he failed to pay the hospital.

In another personal injury matter

upon settling their claims in September 2019, Raines failed to promptly disburse funds to the clinic to satisfy its third-party interests in the settlement funds and failed to respond to the clinic’s requests for payment. Moreover, Raines did not disburse funds to the clinic until August 30, 2022, and September 7, 2022, and did so only after the clinic filed a grievance with the State Bar.

Sanction

Upon reviewing the record, we agree with the Special Master that disbarment is the appropriate sanction for Raines’s intentional violation of Rules 1.15 (I) (a), 1.15 (I) (b), 1.15 (I) (c), and 1.15 (II) (b)  and that this sanction is consistent with prior cases disbarring lawyers for similar conduct.

(Mike Frisch)

Online Reviews Draw Bar Charges

The Illinois Administrator has charged an attorney with both giving himself favorable online reviews and posting a negative review of opposing counsel.

At all times related to this complaint, Avvo.com (“Avvo”) was a website which provided lawyer referrals and access to a database of previously answered legal questions. On any lawyer’s Avvo profile, clients may leave reviews of the lawyer’s services by providing a summary of their experience and rating the lawyer’s services between one and five stars.

Charges

Beginning in August 2019 and continuing to May 2024, Respondent submitted at least twenty-eight false five-star reviews to the Avvo profile for himself, Aaron Korson...

For example

Aaron Korson is the best attorney I have ever met. He works hard for his clients, he cares about how they do, he is kind and courteous and goes the extra mile for everyone. He is the best at divorce and child custody matters. I greatly appreciate him

Aaron is a great attorney to work with. I thoroughly appreciate the hard work and kindness he has shared with me

Aaron provided great services per usual. He is a hard and aggressive litigator. He knows how to stick it to the other person. I thoroughly loved his skills

Working with Mr. Korson has been an incredible experience. His dedication and effort are beyond words of gratitude. I deeply appreciate all his hard work-without his help, I could not have navigated through my divorce and child custody issues. Thank you, Mr. Korson

Charge

Respondent knew the reviews submitted to his Avvo profile between August 2019 and May 2024, as set forth...above, were false at the time he submitted the reviews.

Findlaw profile allegations

Beginning in June 2023 and continuing to May 2024, Respondent submitted at least ten false five-star reviews to the FindLaw profile for himself, Aaron Korson...

For example

Amazing Attorney Doing Gods Work. That’s how I describe Aaron Korson and his staff. He is an amazing attorney who won my case with ease and he has been a delight to work with. We are very grateful

Aaron managed to get me a child support trust. He froze over $300,000 of my ex's and got me a very favorable outcome. I can't thank him enough for all of his hard work. He has been a phenomenal attorney

More reviews

Beginning in December 2023 and continuing to May 2024, Respondent submitted at least six false five-star reviews to the FindLaw profile for his law firm, Chicago Family Attorneys, LLC (“CFA”)...

Opposing counsel in a domestic relations matter 

On October 18, 2023, Respondent posted a one-star Google review for Almanza’s law firm which stated: “An extremely rude practitioner. Steer clear.”

Respondent’s statements in his Google review of Almanza, as set forth... above served no purpose other than to embarrass, delay, or burden Almanza...

Also alleged

On October 21, 2023, at 11:27 p.m., Respondent emailed Almaza and stated: You realize that I have not had a single day with my mom who is sick WITH CANCER and UNDERGOING SURGERy [sic] without a ridiculous statement or stupid comment by you directed to me?

You have known that I have been out of the office for two days. I can't get one single day to my family.

I am going to show the ARDC this, I am going to show Judge Boyd when I ask for sanctions, and I will mention this in my review of your inappropriate behavior.

You are an absolutely terrible human being and I hope you and your loved ones have to endure the same harassment that I have undergone one day. (emphasis in original)

Charge

Respondent’s statement “You are an absolutely terrible human being and I hope you and your loved ones have to endure the same harassment that I have undergone one day” served no purpose other than to embarrass, delay, or burden Almanza.

Bad review

On November 14, 2023, at 10:23 p.m., Respondent submitted a one-star review to Almanza’s Avvo profile which said: “We hired Mark by recommendation but clearly he waa [sic] to inexperienced, emotional and did Not [sic] care about the seriousness of the case. He allowed the case to drag for years w/o filing any motions& [sic] was constantly inappropriate with his comments. If you or your loved one’s life is hanging in the balance, Do Not Hire this man!! He will do a poor job & bail on you.” The review was submitted by [email protected] and was associated with the IP address 185.217.168.115

The review submitted to Almanza’s Avvo profile, as set forth in paragraph 64, above, was false because Respondent submitted the review, not a current, former, or prospective client of Almanza.

Respondent also is charged with client related misconduct. (Mike Frisch)

Subpoena For Judge Denied In Bar Investigation

The Manitoba Law Society has denied a preliminary motion to compel the testimony of a justice at the discipline hearing on counts of alleged misconduct

 The facts that give rise to the citation arose out of a complex litigation file being managed in the Court of King's Bench. The member acted for one of the parties to the litigation and there was counsel representing the other parties. A case management conference, presided over by Justice Rempel, was held on March 20, 2023. The conference took place over a videoconferencing platform, operated by the court. The member recorded the conference. The Law Society alleges in count 1 of the citation, that the making of the recording was contrary to a court direction and was made without the "assent or knowledge" of the judge.

A second case management conference was held on May 9, 2023, and was not recorded. At this conference, an affidavit of documents prepared by the member was filed and the recording of the March 20, 2023 case management conference was listed. The judge took exception to the case management conference having been recorded and, by letter dated May 12, 2023, sent a complaint to the Law Society, with a copy to the member.

The justice notified the Law Society and an investigation was commenced.

Once the member was aware that the judge had made a complaint against him, he wrote to the judge on June 1, 2023, asking the judge to recuse himself. There was a subsequent case management conference held on June 9, 2023. This was recorded by the court. The transcript shows that the judge declined to discuss anything related to the Law Society complaint and indicated that he would not address recusal without a Notice of Motion and proper supporting materials being filed. A subsequent case management conference was held on June 23^rd and at that hearing the member filed a motion seeking recusal. This was then set down for a hearing to be held on September 15^th. The hearing was subsequently adjourned to no fixed date.

On September 8, 2023, the member wrote to the judge and copied several people including the Chief Executive Officer of the Society. Some of the statements in the letter describe the judge as a "hog" and an "accused"; he is stated to have

"improper[ly] interfere[ed] with access to justice" and that this had prevented the appeal of his "needless odd orders"; he is said to have acted in a manner that is "despicable and unbecoming." This letter forms the basis of the third count in the citation which alleges a breach of the duty to treat the court with candour, fairness courtesy and respect

Following its receipt of the copy of the September 8^th letter, the Law Society wrote to the member seeking an explanation. In his reply, dated November 27, 2023, the member asserts that Justice Rempel had said several things to the member during the unrecorded May 9, 2023 case conference, (and perhaps on other occasions), that were humiliating, embarrassing and discriminatory. For example, one complaint is that the judge "insulted my gender enquiring as to whether I was a he or she." This letter forms the basis for the fourth count in the citation which alleges a breach of the duty of candour, fairness, courtesy and respect, as well as a breach of the duty to not communicate in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of professional communication from a lawyer.

At issue here is the lawyer's subpoena for the justice's testimony

Based on these authorities, it is clear that the Law Society, a body emanating from the legislature (to paraphrase McLachlin, J.) has no power to compel testimony from Justice Rempel to explain or justify how he reached his decisions. The Law Society cannot compel Justice Rempel to answer questions regarding his decision not to record case management conferences over which he presided. It cannot compel testimony on his decision to decline to voluntarily recuse himself from the file. It cannot compel evidence from him on his refusal to address recusal at the June 9^th case conference. All of these decisions fall squarely within his judicial functions.

 However, the member goes further. He argues that there is an exception to the general rule of judicial immunity where the judge acts with bias, bad faith and malice.

I do not accept that there is an exception to judicial immunity in the face of bad faith or malice allegations.

(Mike Frisch)

Reinstatement Should Be Denied

A petition for reinstatement of a petitioner reciprocally disbarred in 2002 based on a 2001 Maryland disbarment should be denied, according to the report and recommendation of a District of Columbia Hearing Committee. 

Prior attempts

Between March 2021 and September 2022, Petitioner filed four more petitions for reinstatement (his third through sixth petitions), sometimes providing Disciplinary Counsel the draft petition and responses to the questionnaire before filing them with the Board. DCX 45; DCX 54; DCX 69; DCX 85; see, e.g., DCX 77; DCX 79. The Board dismissed all of these petitions because Petitioner failed to provide complete and accurate responses to the questionnaire. DCX 53; DCX 68; DCX 73; DCX 92.

Among other things, Petitioner concealed his involvement in multiple cases including criminal matters, civil actions, a bankruptcy, a tax matter, and moving traffic violations. DCX 48; Tr. 428-432 (Matinpour); DCX 103; see, e.g., DX 68 at 4-6. To the extent Petitioner later disclosed some of these cases in his subsequent responses, it was because Disciplinary Counsel found the court records on its own and presented them to Petitioner. Tr. 430-35 (Matinpour); DCX 103; Tr. 262 (Petitioner admitted not disclosing cases; claimed he "didn't have knowledge of them"). Compare DCX 48, with DCX 54 at 10.

Misconduct leading to disbarment

The conduct leading to Petitioner's disbarment was undeniably serious. While representing the Bantugs in an effort to avoid foreclosure of their home, Petitioner agreed to buy the home from them, and then continued to represent them in the effort to avoid foreclosure. When the effort failed and he was facing foreclosure on his residence (the Bantugs' house), he filed bankruptcy on the Bantugs' behalf, without their knowledge or consent. Worse yet, because they did not know about the bankruptcy petition, he forged their signatures, as well as the signature of his law partner, on all filings in the bankruptcy matter. In short, for his own benefit-to delay foreclosure-Petitioner filed a complete fiction in the bankruptcy court. The Bantugs did not want to file for bankruptcy, and Mr. McLemore was not their lawyer. This conduct violated Maryland Rule 3.3(a)(1) (candor toward the tribunal), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (engaging in conduct that is prejudicial to the administration of justice).

Apart from filing the entirely fictitious bankruptcy petition and related filings, Petitioner violated Maryland Rule 1.7(b) (conflict of interest) through his business transaction with his clients. He also engaged in the unauthorized practice of law in Maryland (Rule 5.5(a)) and used letterhead that failed to disclose that he could not practice in Maryland (Rules 7.1 (communications concerning a lawyer's services), 7.5(a) and (b) (firm names and letterheads)).

Disciplinary Counsel also proved by a preponderance of the evidence that Petitioner misappropriated Mr. Morales settlement checks. Petitioner argues that Disciplinary Counsel should not have been allowed to present evidence of the alleged misappropriation because Disciplinary Counsel did not make a proffer of the misappropriation evidence, as required by Board Rule 9.8(b)

Editor's note: the cited Board Rule excludes evidence of misconduct due to lack of notice. It is a ridiculous rule that is contrary the public interest and would, I expect, be rejected by the Court of Appeals if tested.

The committee found that Petitioner did not provide evidence to establish several of the criteria for reinstatement. (Mike Frisch)

Letters We Send Letters

A reciprocal public censure was approved by the Colorado Presiding Disciplinary Judge based on a sanction imposed in Arizona

This reciprocal discipline case arose out of discipline imposed on Bauer by the Arizona Supreme Court’s Attorney Discipline Probable Cause Committee, which issued an order of admonition with probationary conditions. The order issued June 18, 2024. Bauer’s discipline was premised on his decision to send demand letters on his client’s behalf to a court-appointed advisor’s lawyer, the Department of Child Safety, the opposing counsel in a family law case, a therapeutic interventionist, and a court-appointed psychologist without sufficiently researching the validity of the allegations in the letters, including unsubstantiated allegations of terrorism and other spurious claims. In the letters, Bauer requested that the recipients change their opinions or recommendations to the family court presiding in his client’s case; in exchange, Bauer stated that he and his client would not proceed with a lawsuit against the recipients.

If you are old enough to remember the great Perry Como, the title to this post may trigger a memory. (Mike Frisch)

School Days

The Circuit Court for Arlington County Virginia imposed an agreed six-month suspension based on stipulations of misconduct in two matters.

One involved a lawsuit against an Ohio school

After hearing Respondent on a podcast, Amy Gonzalez ("Complainant") and Andrea Gross ("Gross") retained Respondent to represent them in a potential civil claim against their children's school, Columbus Academy ("CA"), located in Columbus, Ohio.

Fees

On January 4, 2022. Complainant and Gross each paid Respondent a $10,000 advanced legal fee via credit card for a total of $20,000. Respondent did not deposit the $20,000 advanced legal fee in his trust account. Instead. he deposited it directly into his operating account.

The suit was filed in the Ohio Court of Common Pleas.

Respondent voluntarily dismissed the action after the school filed for dismissal for failure to state a claim on which relief could be granted.

Respondent did not immediately explain to Gross or Complainant that he would need to refile the defamation claim on or before, April 18, 2023 it would be time barred. See Ohio Rev. Code, §2305. l l (West 202.l ). Respondent maintains that, after receiving CA' s Motion to Dismiss and learning new information stated therein, he told Gross and Gonzalez that the defamation claim was meritless and that he could not, ethically, refile it.

He then advised the clients he would file an action in federal court

Respondent never provided Complainant or Gross a draft federal complaint.

The clients received no refund and filed a bar complaint

In his interview with the bar investigator, Respondent stated that he did not mean for Complainant and Gross to take seriously his statement that he would return the advanced legal fee to them.

The second matter involved a lawsuit against Duke University

On December 7, 2022, the parents of Y. Hicks ("Hicks" ) retained Respondent to file. suit on Hicks' behalf against Duke University. On December 12, 2022, Respondent filed a complaint on Hicks' behalf against Duke University. On December 19, 2022, Hicks' parents paid Respondent a $20,000 advanced legal fee. Respondent received the fee on December 21 , 2022, and deposited it in his operating account. Respondent told Foley the entire fee was earned by the time he received the fee.

Hicks told Foley that Respondent filed a lawsuit against Duke University but withdrew it without their permission. Hicks told Foley that Respondent told them the suit had been incorrectly filed. Respondent maintains the suit was withdrawn because Hicks no longer had standing and that he explained that to Hicks.

Hicks advised they have demanded a refund of their $20,000 fee, but Respondent has "ghosted" them.

I could not find an identifying reference to Foley in the document but there is a Virginia bar investigator with that last name. (Mike Frisch)