Thursday, January 31, 2008

Losing Control

The New York Appellate Division for the Second Judicial Department disbarred an attorney for, among other things, allowing non-lawyers to exercise control over his law practice. He had entered into a written agreement with a business to give the company "complete authority to accept or reject personal injury clients for him and to establish legal fees...[he] agreed to accept 10% of any contingent legal fee that he received while [the company] took 90%." He had no prior disciplinary history and a number of character witnesses, but:

"The respondent explained his reasons for expanding his practice into the personal injury field, his initially unsuccessful forays into the personal injury field at a time when his practice was not going well and he was in the midst of a divorce, and his discussions with non-attorney/medallion cab entrepreneur Simon Garber, which, unfortunately, developed into the business arrangement which led to this disciplinary proceeding. Although the respondent had some ethical concerns about the agreement he entered into, he admittedly did not do enough to resolve those concerns. According to the respondent, his lackadaisical approach to 'this patently foolish arrangement' was in sharp contrast to the manner in which he had previously and subsequently conducted his law practice.

Notwithstanding the absence of harm to any clients and the respondent's professed lack of venality, he is guilty of serious professional misconduct including allowing non-attorneys to exercise control over his law practice, maintaining escrow funds in a non-escrow account, and falsely holding himself out as an partner with another attorney who has since been disbarred. Despite the respondent's characterization of his ethical breaches as isolated misjudgments, it is evident from the time frame of the charges and his total abdication of control over his practice to non-attorneys, that the misconduct involved was pervasive. Under the totality of the circumstances, the respondent is disbarred for his professional misconduct."  (Mike Frisch)

January 31, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Advanced Issues In Client Confidentiality

A recent ethics opinion from the Maine Board of Overseers of the Bar deals with the ethical propriety of using third-party vendors to process and store electronically held law firm data. The opinion concludes:

"With the pervasive and changing use of evolving technology in communication and other aspects of legal practice, particular safeguards which might constitute reasonable efforts in a specific context today may be outdated in a different context tomorrow. Therefore, rather than attempting to delineate acceptable and unacceptable practices, this opinion will outline guidance for the lawyer to consider in determining when professional obligations are satisfied.

At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. See ABA Ethics Opinion 95-398 (lawyer who allows computer maintenance company access to lawyer's files must ensure that company establishes reasonable procedures to protect confidentiality of information in files, and would be 'well-advised' to secure company's written assurance of confidentiality); N.J. Sup. Comm. Prof. Ethics Opinion 701 ('Lawyers may maintain client files electronically with a third party as long as the third party has an enforceable obligation to preserve the security of those files and uses technology to guard against reasonably foreseeable hacking.') ."

January 31, 2008 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Expert Witnesses In Bar Proceedings

A lawyer admitted to practice in 1955 was disbarred today by the Supreme Court of Washington. The court notes that the attorney is "no stranger to the disciplinary process" and that "the actions...mirror those in prior cases." The court rejected the suggestion that the attorney was denied the opportunity to call and examine expert witnesses:

"Mr. Burtch contends the hearing officer denied him the opportunity to call
expert witnesses to establish the standard of care in the legal industry and
interpretation of the RPC.  The WSBA argues that expert testimony on the RPC is
not admissible in disciplinary hearings.  Mr. Burtch was allowed to call Judge
Kirkwood, John Farra, and Steven Johnson as expert witnesses and was allowed
leniency to conduct questioning concerning their interpretations of the RPC.  Judge
Kirkwood's testimony was limited once it was established he has been retired from
the practice of law and the judiciary for 24 years.  John Farra's expert testimony
was limited after the hearing officer recognized that in a prior disciplinary
proceeding he asserted the position on behalf of Mr. Burtch that "'[i]t is obvious

that the rules of lawyer discipline are only general guidelines . . . .'"  In re Burtch,
112 Wn.2d at 21 (quoting Br. of Resp't at 14).  As we recognized in Mr. Burtch's
prior proceeding, the rules regulating a lawyer's conduct state the minimum level
below which no lawyer can fall, not general guidelines.  Because Farra did not
appear to respect this basic premise of our ethical rules, and Judge Kirkwood was
not familiar with current ethical standards, these witnesses may not have qualified as
experts and it was within the hearing officer's discretion to limit their expert

       Under Evidence Rule (ER) 702, an expert may testify if the testimony would
assist the trier of fact.  The party calling the expert must demonstrate that the
witness qualifies as an expert based on 'knowledge, skill, experience, training, or
education.' ER 702.  Mr. Burtch called two lawyers and Judge Kirkwood as expert
witnesses, and was given the opportunity to demonstrate their expertise.  Neither
lawyer had a specialty in ethics or any other specialty that would assist the trier of
fact in this case, the hearing officer, also a lawyer."

In sum, the court states:

"In Mr. Burtch's previous disciplinary proceeding, we found that mitigating
factors and Mr. Burtch's profession of learning valuable lessons from the charged
misconduct justified leniency.  Burtch, 112 Wn.2d at 28.  It is regrettable that today
we are discussing another decade of misconduct and ethical violations for similar
behavior.  It is clear that Mr. Burtch did not take the opportunity given him in the
last proceeding to rectify his behavior and has caused further injury to his clients. 
The Board was correct in disbarring Mr. Burtch.  We uphold its decision." (Mike Frisch)



January 31, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unlike A Fine Wine

I have previously noted my dismay at the inordinate amount of time bar discipline cases take in the District of Columbia, particularly in matters involving reciprocal discipline and/or criminal convictions. After all, once final discipline or a criminal sentence is imposed, it should not be too difficult to figure out the right result. Well, in a case decided today, the court dealt with an attorney who had pleaded guilty to felony insider trading in 2001. Final discipline was imposed in Virginia in 2002 and in California in 2005. After the criminal judgment was filed in D.C. in May 2002, it took almost six years to disbar the attorney based on the Virginia order and dismiss the criminal and California bar cases as moot.

The court is not to blame here--it entered the order two weeks after the case was submitted. The court is, of course, ultimately responsible for the system it created. (Mike Frisch)

January 31, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

NYC Fashion Week -- Today's Must-See Runway Show -- Has Connection to Legal Profession Blog

Posted by Alan Childress

I am still smarting from a student review I received yesterday that says I "should buy a comb and a mirror" if I teach morning classes (whereas I think -- the path of least resistance -- they should ban morning classes).  And I was not assuaged by the smiley face icon after the sentence.  So anyone who knows me would be surprised to find me and NYC's Fashion Week (much less "hipsterest" or "Olsen") in the same blog post (this one).  Still, here is a post from Fashionista blog, Who's Catherine Holstein?, featuring and picturing my sister in law Cate [with congrats to her and Victoria & Hattie]:

Catherine Holstein.jpg"When we were getting our Fashion Week thoughts together, we barely registered the name "Catherine Holstein" on the line up, but had a vague enough memory of her cute/retro designs in Teen Vogue to know it might be fun to go.

Then we noticed her slot's kicking off the hipsterest day of them all, also known as next Thursday.

Now, we hear her presentation was such a popular request for next week, it's officially closed off to any more people who think they can snag an invite.

One year ago, no editor could have picked this girl out of a line up of blonde designer wannabes, and now it looks like she might be the next leader of the Parsons Mafia.

Guess it pays to be friends with sisters whose names end in Traina or Olsen."

January 31, 2008 in Blogging | Permalink | Comments (0) | TrackBack (0)

A Second Probation

I had wondered in an earlier post whether there has been any attempt to study the success rate of probation in bar discipline cases. Here's another failed probation case-- the attorney had been placed on probation in October 2006. The conditions required that the attorney "abide by all of the terms of his criminal probation for driving while intoxicated and maintain abstinence from alcohol and other mood-altering chemicals." He thereafter "consum[ed] alcohol to intoxication, as verified by a breath test..." and failed to notify the bar of the violation of criminal probation. Sanction: public reprimand and two years' unsupervised probation, imposed by order of the Minnesota Supreme Court. The attorney also must maintain total abstinence and attend weekly AA meetings.(Mike Frisch)

January 31, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 30, 2008

Settlement Remorse

After trial had commenced in a domestic relations case, a settlement was reached between the parties. A few days later, the husband had second thoughts and directed his attorney to seek to have the agreement set aside. The lawyer filed the motion, which was denied. The husband then sued the lawyer for malpractice. The Idaho Supreme Court held that the husband was charged with full awareness of the terms of the settlement and was estopped from bringing the malpractice claim. (Mike Frisch)

January 30, 2008 in Clients | Permalink | Comments (0) | TrackBack (0)

Limited Indemnification

The New Jersey Supreme Court held that a private attorney who is serving as solicitor for a board of education is not entitled to indemnification in defense of a civil suit under a policy that provides for the indemnification of "any person holding any office, position or employment with a board of education." The attorney also served as secretary pro tem of the board and thus was entitled to indemnification to the extent he was acting in that capacity in connection with the claims brought against him.

There was a dissent in part that finds the majority interpretation "crabbed" and states "I cannot agree that [the attorney], who was appointed by the Board as Solicitor, who served it faithfully and was sued as a result, did not hold a position under the Board." (Mike Frisch)

January 30, 2008 in The Practice | Permalink | Comments (0) | TrackBack (0)

Arrest Leads To Discovery Of False Bar Application

An attorney who had failed to disclose a number of alcohol-related driving offenses was indefinitely suspended by the Kansas Supreme Court. The failure to disclose was discovered as a result of a post-admission arrest and conviction for driving under the influence. There was a disagreement between members of the Board for Discipline of Attorneys as to the appropriate sanction. The board majority rejected probation as a sanction because "[d]ishonest conduct cannot be corrected by probation." This is a truth that I fondly wish other jurisdictions would recognize.

A  board dissent would disbar:

"With respect to my perhaps more wise colleagues on the Hearing Panel, my recommendation would be for disbarment in this instance. Mr. O'Neill omitted six arrests and/or convictions which should have been disclosed on his application for admission to the Bar. The application was made under oath. This constitutes a violation of KRPC 8.1(a). While this violation may seem remote and may never have been discovered had the Respondent not been convicted of felony driving under the influence of alcohol, the pattern started by the Respondent by the omission of information in 1986 appears to be reoccurring by the Respondent's failure to report the October, 2005, driving under the influence of alcohol arrest pursuant to the informal monitoring agreement. The Respondent allowed his attorney at the disciplinary hearing to offer Exhibit A knowing that information contained therein was not accurate. This pattern of dishonest behavior toward his substance abuse problem, and attempt to conceal it, distinguishes this factual scenario from that in the case of In the Matter of Joseph M. Laskowski, No. 96,886 [282 Kan. 710, 147 P.3d 135 (2006)]. In that case, indefinite suspension was ordered by the Kansas Supreme Court. It is my opinion that the facts in the present case are more aggravated and that disbarment would be the appropriate discipline."

As always, the lesson is that disclosure at the time of the application for admission is preferable to post-admission discovery of a lack of candor. (Mike Frisch)

January 30, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 29, 2008

Bad Law Firm Rejection Letters

Posted by Alan Childress

A follow-up to our posts (Jeff's and then mine) on really bad letters of rejection sent by law firms or other prospective employers, or by law reviews:  here is a student blog's email from a Hawaii law firm or legal employer, which gives a reason for the rejection:

I regret, Hawaii has too many attorneys as it is, and the work just is not there, this is across the board….I suggest Hawaii is the worst legal market possible for any lawyer.

January 29, 2008 in Law Firms | Permalink | Comments (0) | TrackBack (0)

1Ls: Bouncing back from less than stellar grades

Posted by Alan Childress

In law schools, it's that time of year when many students are (understandably) concerned about their first set of law grades, and professors are beginning the educational process of deconstructing all this for curious students.  The truism that it is a marathon and not a sprint may be cold comfort, yet it is true (hence a truism).  Here is a good post on the subject from a law student at the Frugal Law Student weblog, and a somewhat painful endorsement of that advice from The Shark, a cal law blog.

January 29, 2008 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (0)

NY Times On Correlation Between Judges' Votes and Campaign Contributions

Posted by Alan Childress

Great story this morning in the New York Times, Looking Anew at Campaign Cash and Elected Judges, by Adam Liptak in his Tuesday column on legal matters.  This one is on correlating campaign finance for state court judges and their later decisional voting patterns.  This issue was already heating up because of the recent mess in the West Virginia Supreme Court noted by Mike here and also at Legal Ethics Forum, but surprisingly the Times does not explore that obvious and direct example.  Instead it deals with more subtle patterns found by statistical methodology in Louisiana and another notable example 73345828 from 2006 in Ohio. 

    The Times' Louisiana example features a study coauthored by my colleague Vernon Palmer, and quotes him to good advantage in the article.  Very interesting stuff, and all should look forward to Vernon's article appearing next month.  The "article's conclusions, to be published next month in The Tulane Law Review, are not pretty.  In nearly half of the cases they reviewed, over a 14-year period ended in 2006, a litigant or lawyer had contributed to at least one justice, sometimes recently and sometimes long before. On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time."

    Not pretty, indeed.

January 29, 2008 in Judicial Ethics and the Courts | Permalink | Comments (2) | TrackBack (0)

Depression Did Not Cause Misconduct

An attorney admitted to practice in 1964 and who had never been previously disciplined was suspended for eighteen months by the Wisconsin Supreme Court. The misconduct involved the mishandling of three probate estates. In one matter, he had failed to file fiduciary income tax returns for more than 6 1/2 years, filed a false final accounting, failed to appear at hearings and made false statements to a court. Another matter involved similar issues where the estate was open for 9 1/2 years as a result of the attorney's inaction. The third case also involved a lack of diligence and failure to timely deposit estate checks.

As to sanction, the court stated:

" The referee considered a number of factors, including Attorney Losby's testimony demonstrating sincere remorse.  Although Attorney Losby testified as to his past medical condition of depression, the referee found that the medical evidence failed to indicate any connection between Attorney Losby's medical condition and his misconduct.  Also, while the absence of prior discipline may be regarded as a mitigating factor, the referee considered that Attorney Losby's misconduct caused harm to the heirs of the estates.  We agree that the seriousness of Attorney Losby's misconduct warrants license suspension and the recommended 18-month license suspension is necessary to protect the public and deter similar misconduct."

The finding that dishonest behavior is not caused by depression is worth noting, as some courts tend to find that such a condition explains, if not justifies, all the ethical lapses. The court also ordered restitution as part of the sanction. (Mike Frisch)

January 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Overworked Public Defender Sanctioned

A part-time public defender for three South Carolina counties had an annual caseload of over 700 cases. He was the subject of eight complaints and defaulted on the ensuing bar charges. Thus, the hearing was limited to a determination of appropriate discipline. Over the objection of disciplinary counsel, the attorney was permitted to present evidence through a witness that some of the underlying criminal matters were favorably resolved. The South Carolina Supreme Court held that this evidence was improperly admitted. Noting that it was appropriate to give "some consideration to respondent's heavy caseload and the systemic problems with the public defender system" (quoting the sub-panel), the court concluded:

"We agree with the parties that a nine-month suspension, with participation in a law office management program and payment of costs, is the appropriate sanction for respondent.  We caution the Commission in the future to carefully weigh the continuance decision when, as in the present case, the parties present surprise evidence without prior notice to the obvious disadvantage of the other party."  (Mike Frisch)

January 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fees In Booze

In a case where the lawyer already is serving a lenghty suspension, an Illinois hearing board recommends a two-year and until further court order suspension for failing to act with diligence and to return an unearned fee. After personal service of the charges, the accused attorney failed to file a response. On the day of the hearing, he faxed an emergency motion to continue the hearing, claiming that he had not had actual notice of the hearing until his father told him about it and that he could not attend due to his father's medical condition. He also claimed that his father was "possibly having heart surgery" to a bar investigator. The father told the bar investigator that he knew nothing about the disciplinary hearing, had a scheduled doctor's appointment but no plans for heart surgery. Continuance denied. Default entered.

As to the fresh, client-related misconduct, the client had a misdemeanor battery charge and a related civil matter. The attorney asked for his fee in cash "because he was in the process of a divorce and wished to hide his money from his wife." He thereafter took fees in liquor rather than cash (the client owned a liquor store) and once in Vicodin. He misled the client into believing that he was working diligently on the case. (Mike Frisch)

January 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2008

Case Dismissed

The New York Appellate Division for the Second Judicial Department affirmed an order of the Supreme Court denying a motion to vacate dismissal of a legal malpractice claim. The plaintiff failed to establish a meritorious cause of action. Further, the plaintiff failed to file a note of issue within 90 days and had been warned that the case would be deemed dismissed for failure to comply. Reason for the failure to comply?  The court states:

"With regard to reasonable excuse, the plaintiff's counsel offered nothing more than that 'the failure to timely file the Note of Issue was due to law office failure.' However, 'a conclusory and unsubstantiated claim of law office failure will not rise to the level of a reasonable excuse' ...Thus, the plaintiff failed to establish a reasonable excuse for his failure to comply with the certification order. "

When a lawyer is retained to sue another lawyer for malpractice, it is a good idea to carefully follow the rules and procedures that apply to the claim. (Mike Frisch)

January 28, 2008 in Clients | Permalink | Comments (0) | TrackBack (0)

The Value of Litigation: Against Settlement and Mediation

Posted by Alan Childress

Back when he was just a pup of a newsman on MSNBC and did hilarious impressions of Reagan and others on Leno, Brian Williams predicted that Bob Dole could not beat Clinton:  to too many young people, Dole was that guy standing on his front porch  -- fist clinched -- yelling at you, "Get off my lawwwwnn!"

Jeff Lipshaw's rant on iPods and ambient noise in subways worries me that he has reached that stage in life where he is becoming That Guy.  It is worse than that.  If there is any meaningless legal rhetorical 781595_headphones device more overused than "rule of law," it is "slippery slope," but I will say it now.  Jeff's rant shows all the tragic signs of entering the slippery slope toward Bernard Goetz.  There are much worse things in the world than earspill, such as the analog carspill that causes physical vibration of my car (a battery?, I should ask my 1Ls), and there are much worse things than increasing deafness, which has saved many a marriage.  Long live earspill on the T!  Most of all, I laugh (mockingly, not "with" him) at the notion that Jeff seems to think the T should sound like a library (that is so Jeff), or that all the "ambient noise" he notes is somehow fatally worsened by the slightly marginal impact of tinny earspill.  Jeff is not Goetz, then, he is the earily gifted Horton, who hears The Who.

Which brings me to my point about Bernard Goetz.  Before his notorious vigilante subway stint, Goetz was once actually mugged. And then rather than watching the perp be prosecuted and brought to justice, he was forced to go through a mediation process with his mugger.  It is quite possible that Goetz was550783_boston_chinatown_t not snapped by subway crime or 'kids today,' but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve.  And let's be sure to do it in an efficient (cheap) manner. (Stoneridge, anyone?) The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W. Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases, 99 HARV. L. REV. 1808 (1986).  I could not find it free online, so you may have to read this one in your library (or the subway).

January 28, 2008 in Blogging | Permalink | Comments (0) | TrackBack (1)

Law School Plagiarism And Bar Admission

The Georgia Supreme Court denied bar  certification to an applicant who "had submitted a paper at the end of his second year of law school that was a virtually verbatim reproduction of sections of five previously published sources, none of which was cited in the paper." The Board to Determine Fitness of Bar Applicants "by clear implication did not believe his account" of the circumstances of the plagiarism. The applicant "has never accepted full responsibility for what he did, and he has not yet been rehabilitated."

Lesson? If there is something like this in an applicants past, bar admission will be denied absent an acknowledgment of the misconduct and evidence that he or she has undergone a sufficient moral rehabilitation such that the admitting court will have a reasonable degree of confidence that such behavior will not recur. (Mike Frisch)

January 28, 2008 in Professional Responsibility | Permalink | Comments (2) | TrackBack (0)

Harsh Result In Felony Drug Possession Case

An attorney admitted in Georgia in 2000 was convicted as a first offender of felony possession of N-N-dimethylampetamine, a controlled substance. He had served in the military for 18 years, has "received numerous awards and commendations and is currently a Major in U.S. Army Reserves" and had begun to wind up practice in June 2006. An evaluation revealed no serious substance abuse problem or "serious problem that would cause major difficulties in his professional work." He also has passed nine random drug screens over the past year. The "drug use was situational and not compulsive."

Sanction? The Georgia Supreme Court ordered a suspension of 24 months nunc pro tunc to January 29, 2007 with reinstatement conditioned on successful completion of the criminal case probation and the Lawyer Assistance Program. He may petition for review if the LAP director certifies that therapy is "no longer necessary." A dissent notes that the matter involves a felony conviction and would disbar. (Mike Frisch)

January 28, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Hand Wringing

I have often expressed dismay at the time and effort (and occasional bad results) that exemplifies the process of obtaining reciprocal discipline in the District of Columbia for misconduct established by another jurisdiction's disciplinary system. For better or worse, the Supreme Court of Georgia does not agonize over the final orders of a sister jurisdiction. In a reciprocal case from Arizona, where the attorney had been suspended for four years followed by two years probation, the court noted that there was nothing much in the record about the nature of the misconduct and that the lawyer had objected to reciprocal discipline. The court suspended the lawyer in Georgia until reinstatement is obtained in Arizona. In D.C., this case would have taken several years and at least one round of briefs. In the end, I'd bet that little in the way of final discipline would be recommended. (Mike Frisch)

January 28, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)