Thursday, June 30, 2011

HIV Misdiagnosis Actionable

The District of Columbia Court of Appeals, sitting en banc, has held that a plaintiff who was told that he was HIV positive when he in fact was not, and suffered severe depression during the five years he dealt with the misdiagnosis, has a cause of action for the negligent infliction of emotional distress against the doctor and clinic.

The court expanded the "zone of physical danger" concept generally applied to tort actions:

...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence.

We conclude this is such a case...

The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well.

The decision was unanimous. (Mike Frisch)

June 30, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Candy And A Letter

The Indiana Supreme Court has imposed a 30 day suspension for criminal conduct described in the order:

In November 2009, Respondent went to a jail to visit a client awaiting trial for the murder of his wife. While there, Respondent gave the client candy and written material that had not been authorized by the jail authorities. The written material was a letter from the client's sister pertaining to conversations between the sister and a witness for the state. Respondent was charged with two counts of trafficking with an inmate, which were resolved by a pre-trial division agreement under which Respondent admitted the allegations.

(Mike Frisch) 

June 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 29, 2011

A Bar Dues Rant

As a member of the District of Columbia Bar, I have the honor and privilege of paying annual dues. This year, the ticket costs $237.

As a former Bar employee, I probably take a closer look at the annual budget than your average dues paying member. My cursory review suggests that this linked announcement is about all that a member can readily find out about how the Bar spends our annual dues.

A couple of things jump out at me.

Roughly one-third of District of Columbia Bar revenues go to fund the disciplinary system. This year, the Board on Professional Responsibility ("BPR") line item is a hair over $7 million out of a total of a hair over $22 million. The allocation covers the costs of Bar Counsel (the prosecutors) and the BPR office, which administers a system that is supposed to largely depend on the efforts of unpaid volunteers.

I took at look at the BPR budget when I wrote my analysis of the D.C. attorney discipline system. The BPR allocation rose from $2.23 million in 1994-95 to $4.69 million in 2004-05. Now it's gone up over $2.3 million more.

Are we getting bang for our buck?

I have not studied the issue, but my sense is that the workload of the BPR had actually decreased in recent years as the Court of Appeals by rule amendment has largely removed the (previously heavy) load of reciprocal discipline matters from BPR review. As for Bar Counsel, it certainly appears that there has not been any increase in prosecutions. To the contrary, I suspect (but have not confirmed through study) that the number of petitions (formal charges) is in decline.

The effort to find an answer to the above question brings me to my second point. The Bar must be far more transparent than it is at present about how it spends our dues money. I think that members are entitled to such transparency. In the digital world, that means providing a far more detailed budget online than the linked summary. Then, we could get answers about potential waste of mandatory dues.

It is noteworthy that the Bars are recession-proof. If you want to play, you have to pay. This fact should in no manner excuse the Bars (not just D.C.) from being accountable for how dues money is spent. At a minimum, a readily available (i.e. online) detailed budget should be the right of both bar members and the public they serve. (Mike Frisch)

June 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Your Lyrics?"

The Maryland Court of Appeals has held that a trial court does not have the discretion to permit a state's attorney to ask repetitive, prejudicial and harassing questions of a criminal defendant.

The defendant was charged with attempted murder. He was asked on cross-examination a series of ten questions about the lyrics of a rap song he had penned. Each question repeated a line from the song and then "Your lyrics?"

The court concluded that the questions served no purpose other than to suggest a propensity for violence on the part of the defendant.  (Mike Frisch)

June 29, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Courts Don't Let Friends Drive Drunk

A person who had lawfully consumed alcoholic beverages (two tall cans of beer) at her sister's house decided that she was too intoxicated to drive home. She asked her brother's friend for a ride. He agreed.

En route, the car was stopped because a license plate light was out. The driver did not have a valid license. The woman admitted to the police that she was too intoxicated to drive herself home.

She was charged and convicted of public intoxication. On appeal, she pressed a public policy defense that her conduct had been responsible and should not be considered criminal. The Indiana Supreme Court rejected the argument and affirmed the conviction.

Justice Rucker dissented and would overrule a prior case that held the inside of a car to be a public place for purposes of the public intoxication statute. He agreed with the appellant that she should not be convicted for doing the responsible thing. (Mike Frisch)

June 29, 2011 in Law & Society | Permalink | Comments (3) | TrackBack (0)

Busman's Holiday

A single justice of the Massachusetts Supreme Judicial Court has ordered a public reprimand of an attorney based on a 48 month suspension from practice before the Internal Revenue Service. The misconduct involved failure to file income tax returns.

The issue of reciprocal discipline for a suspension from practice before the IRS was raised by the attorney. The court held that the IRS is a "federal administrative body or agency" and thus any suspension implicates the Massachusetts rule governing reciprocal discipline.

Bar Counsel had sought a four-month suspension.

The court noted that the attorney had not been charged or convicted of any criminal offense, which weighed heavily in his favor. On the aggravation side, the attorney's conduct was willful. Further, he had 15 years experience as a tax lawyer.

As a matter of advanced disciplinary procedure, I would note that courts tend to have a less inclusive definition of a "disciplining court" for purposes of reciprocal discipline than the Massachusetts version relied upon by the court here. 

For instance, in the District of Columbia, reciprocal discipline can only be imposed based on the order of a tribunal as defined below

 As used in this section,
(1) “state” shall mean any state, territory, or possession of the United States.
(2) “disciplining court” shall mean (a) any court of the United States as defined in Title 28, Section 451 of the United States Code; (b) the highest court of any state; and (c) any other agency, commission, or tribunal, however denominated, that is authorized to impose discipline effective throughout a state.

D.C. App. R. XI, section 11(a).

Under such a rule, I believe that reciprocal (i.e. summary) discipline could not be imposed as a result of an IRS suspension. (Mike Frisch)

June 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Attorney Called For Traveling Violation

A public reprimand was imposed by the Oklahoma Supreme Court on an attorney who had submitted false travel claims to his law firm:

In February 2010, the Respondent submitted travel claims to his law firm in the amount of $1,722.74 and a request for a travel advance in the amount of $650. Both these amounts were to be billed to a client. At the time, Respondent was a partner at the firm of Sonnenschein, Nath and Rosenthall in their Kansas City, Missouri office. When attorneys at the firm discovered discrepancies with the travel claims, they reviewed them with the Respondent. Respondent admitted falsifying the claims and was terminated by the firm.

Respondent is licensed both by the states of Missouri and Texas. Disciplinary proceedings initiated first with the Missouri Bar Association when Respondent self-reported his actions. The Missouri Office of Chief Disciplinary Counsel deemed public reprimand to be the appropriate discipline. The Texas Bar Association also issued a public reprimand in response to Respondent's actions in this matter.

The attorney had self-reported the misconduct and made restitution. (Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Spousal Abuse Draws Lengthy Suspension

The New York Appellate Division for the First Judicial Department imposed a 36 month suspension of an attorney convicted in Virginia on charges of domestic violence.

The court cited mitigating factors:

In its report dated June 14, 2010, the Hearing Panel noted the following as factors tending to mitigate respondent's culpability: (1) respondent's long and exemplary work record and attestation to his good character from colleagues; (2) the connection of respondent's misconduct to a dysfunctional marital relationship that is now coming to an end through divorce; (3) the initiation of the altercation by respondent's wife; (4) the causal connection between respondent's abusive conduct and his intermittent explosive syndrome, a recognized psychological condition for which he is being treated, and was being treated before the incident; (5) the confinement of respondent's physical aggression to his personal life; and (6) the substantial criminal sanctions, including a period of imprisonment, that have already been imposed on respondent.


We find, in the exercise of our discretion, that respondent should be suspended for 36 months in view of the gravity of the offense of domestic violence and his prior history of similar misconduct. While respondent may not have engaged in physical aggression in his professional life, it cannot be overemphasized that his abuse of his spouse reflects adversely on his fitness to practice law.

The attorney had served as in-house counsel to a telecommunications company. (Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Superior Intellect Does Not Assure Competence

A Colorado Hearing Board has ordered a one year and a day suspension of an attorney for misconduct in the course of representing a criminal defendant. The board rejected the attorney's claim that he had complied with a limited representation agreement and provided competent legal services. One area of concern:

A final basis for concern is Respondent’s apparent view that he satisfies the responsibility of providing zealous representation because he can “outthink” his opposing counsel. As discussed above, although Respondent attended several hearings and conducted interviews on behalf of Robinson, there is little other evidence of legal work that Respondent performed on Robinson’s behalf, despite being paid $3,300.00. While Respondent may have a superior intellect, that alone does not assure compliance with Colo. RPC 1.1.

Another concern:

At the hearing, Respondent’s demeanor was erratic, while his testimony and arguments often were difficult to follow and at times were incoherent. The Hearing Board recognizes that the stress of defending oneself in a disciplinary hearing could contribute to such difficulties. Nevertheless, we are concerned that if Respondent continues to practice law, an underlying physical or mental condition could affect the quality of [his] representation of future clients.

The attorney thus must submit to an independent medical exam for reinstatement. (Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Year Of Monitored Sobriety Required For Louisiana Bar Admission

The Louisiana Supreme Court has denied a petition for bar admission of an attorney who has a history of alcohol and opiate dependency. The order sets forth a bright line for such applicants - a precondition is one full year of sobriety monitored by the Bar's counseling program. Although the applicant has claimed sobriety since 2005, he only recently had entered into a recovery contract with the Bar program.  (Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

In Memoriam

From the web page of the Ohio Supreme Court:

Former Columbiana County Common Pleas Court Judge J. Warren Bettis, who served as Disciplinary Counsel for seven years in the late 1980s and early 90s, died Thursday in Salem. He was 86.

Born in Salineville on Oct. 24, 1924, Judge Bettis was a disabled World War II veteran who served in the Pacific. He was selected as honorary parade marshal of this year’s Salem Memorial Day event.

Retiring Board of Commissioners on Grievances & Discipline Secretary Jonathan Marshall called Judge Bettis a “great American” for going ashore as a young Marine during the invasion of Iwo Jima.

Judge Bettis graduated from The Ohio State University, Xavier University and the Salmon P. Chase College of Law at Northern Kentucky University with a law degree. He served with the Public Utilities Commission of Ohio from 1963 to 1965, as Columbiana County prosecutor from 1965 to 1971, and as common pleas judge from 1971 to 1986.

He served with the Office of Disciplinary Counsel from October 1986 to September 1993 and in September and October 1997.

The Supreme Court of Ohio has the constitutional responsibility to oversee the practice of law in the state and has one of the most comprehensive disciplinary systems of any state in the nation. The Court has established three offices: Office of Disciplinary Counsel, Board of Commissioners on Grievances & Discipline, and the Clients’ Security Fund to exercise independent authority to assist the Court in meeting its responsibility as set forth in Section 5(b), Article IV, of the Ohio Constitution.

The Office of Disciplinary Counsel is authorized by the Supreme Court to investigate allegations and initiate complaints concerning misconduct, mental illness or substance abuse by attorneys and judges under the Ohio Rules of Professional Conduct and the Code of Judicial Conduct and to investigate and prosecute complaints under the rules governing the unauthorized practice of law.

Judge Bettis continued to serve the legal system well into his 80s. He served as a retired assigned judge in the Court of Claims of Ohio from 1993 to 2004, then as a magistrate from 2005 to 2007.

(Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

False Document Increases Sanction

The Indiana Supreme Court imposed a six-month suspension without automatic reinstatement in a matter involving an attorney who had failed to advise a client of her earlier suspension and neglected another client's name-change petition.

The court noted that the attorney is being treated for a previously undiagnosed condition but nonetheless concluded that the joint recommendation for lesser discipline was inappropriate because the attorney had submitted a false document in the disciplinary investigation:

Mental or emotional disability cannot excuse deliberate, deceitful behavior that compromises the integrity of the legal system, including the Commission's investigation of attorney misconduct. Dishonesty in any form and at any stage of the disciplinary process cannot and will not be tolerated. While we are cognizant of the contribution Respondent's untreated depression and anxiety made to her misconduct and we commend the steps Respondent has taken toward recovery, we nevertheless conclude that Respondent must be required to go through the reinstatement process before resuming the practice of law in this state.

(Mike Frisch)

June 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

The Classic Sense

An attorney was suspended for one year as a result of conduct described by the North Dakota Supreme Court:

 [The attorney's] course of conduct, including at least two instances of fraudulently affixing a client's name to a document and filing it with a court, failure to properly notify clients of a prior suspension, falsely certifying to this Court compliance with the notification requirements, repeated and flagrant failure to communicate with clients, and mishandling and refusing to return unearned client funds, all suggest a pattern of dishonesty to the courts and flagrant disregard of his clients' welfare. Under these circumstances, a significant suspension is warranted...

The court rejected the attorney's claim that assistant disciplinary counsel had violated a sequestration agreement by talking to witnesses after lunch:

[The attorney] contends he did not receive a fair hearing, because the assistant disciplinary counsel violated a sequestration agreement by communicating with witnesses after a lunch break. [He] provides no details or factual background regarding what occurred, but alleges in broad generalities that the assistant disciplinary counsel provided a "refresher course" for certain witnesses and that the witnesses were influenced and less favorable to [him] because of the communication. The hearing panel in its report acknowledged that the parties had informed the panel there was a sequestration agreement. 

 [He] provided no details regarding the specifics of the parties' agreement, and concedes in his appellate brief "that the sequestration of witnesses was not violated in the classic sense of the rule." Nor does [he] cite any supporting authority suggesting that a sequestration agreement or order precludes an attorney from communicating with witnesses during a break in the proceedings.

(Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Blithe Spirit Doesn't Work For Escrow Accounts

The Delaware Supreme Court found that an attorney had failed to adhere to the terms of a private reprimand and imposed a public reprimand a probation for one year.

The original misconduct involved failure to pay taxes and to ahere to recordkeeping requirements for entrusted funds. Here, the attorney had failed to maintain proper books and records and to supervise a non-lawyer employee. As the Board on Professional Responsibility  found

[T]here was no effort to read [] Rule 1.15; and [the attorney] apparently blithely went on, thinking his books and records contained all necessary information, and therefore his bookkeeping and his computer program were adequate. There was apparently no basis for him to have made that assumption.

The court agreed with the board that the Office of Disciplinary Counsel had not proven that the attorney's statements of compliance with recordkeeping obligations did not amount to misrepresentations. (Mike Frisch) 


June 27, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Unanimity In Wisconsin

With the usual 4-3 split, the Wisconsin Supreme Court ordered a public reprimand of an attorney for misconduct in a domestic relations matter.

The attorney made a misrepresentation regarding service on the opposing party and admitted that she had "cut corners" in the case. The court majority noted that the misconduct involved a single, contentious matter and that the attorney had an excellent reputation. Nonetheless

Courts are entitled to expect strict compliance with an attorney's fundamental duty to adhere to the truth.  Cutting corners in this instance was not only a disservice to her client but damaged the legal profession as well.  We determine Attorney...should be publicly reprimanded for her professional misconduct.  We conclude she should be required to pay the full costs of this disciplinary proceeding, which were $2,728.53 as of March 22, 2011.  No restitution was sought and none is ordered in this proceeding.

The dissenters would order briefs on discipline and restitution.

Let's keep an eye out for the split the next time the court has a bar discipline case involving domestic violence. (Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Moral Turpitude

An attorney convicted of two misdemeanor offenses was suspended for three months by the Georgia Supreme Court.

The offenses involved a dispute with a title examiner who had been employed by the attorney. The attorney claimed to have a written non-compete agreement with the title examiner. The attorney had not cooperated with law enforcement requests to obtain the agreement.

The State Bar had sought disbarment. The court noted that the offenses did not involve moral turpitude or conduct involving a client. The attorney had emotional problems at the time. (Mike Frisch)

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


An Illinois Hearing Board has filed a recommendation in a case in which a lawyer and his lawyer-client were jointly charged with filing a frivolous case.

The client had been employed as an associate attorney at a law firm. While there, he was assigned a medical malpractice matter. The clients in the med mal case executed a retainer agreement with the firm, not any individual attorney. Suit was filed in which the firm was listed as counsel.

The lawyer-client was discharged. The frivolous suit was brought by him against the med mal client. The hearing board found that the suit was brought in an improper effort to pressure the law firm to settle the lawyer-client's employment claim. They also filed a baseless suit against the law firm in federal court.

The hearing board proposes a six-month suspension for the lawyer-client and a nine-month suspension for the lawyer. The board expressed concern that they both don't understand that there was an ethical problem here. (Mike Frisch) 

June 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, June 26, 2011

Where Pheasants Sleep

The North Dakota Supreme Court has held that double jeopardy prevents a retrial of a DUI case. The court had declared a mistrial after the jury was sworn because:

After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day [the defendant] was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.

The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.

The court here held that the trial court failed to explore alternatives to the grant of a mistrial. (Mike Frisch)

June 26, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

Blogging Lawyer Gets Reciprocal Discipline

The Wisconsin Supreme Court has ordered reciprocal discline based on sanctions imposed in Illinois in the high-proflie case in which a public defender blogged about her cases.

The court summarized the misconduct:

Attorney...'s misconduct in Illinois consisted of publishing a blog with information related to her legal work from June of 2007 to April of 2008.  The public blog contained confidential information about her clients and derogatory comments about judges.  The blog had information sufficient to identify those clients and judges using public sources.

 In addition, Attorney...'s misconduct involved failing to inform the court of a client's misstatement of fact.  One of her clients told a judge, on the record, that she was not using drugs.  Later, the client informed Attorney...that the client was using methadone at the time of her statement in court.  Attorney...did not inform the judge of this fact or correct the client's misstatement.

The sanction is a suspension for 60 days.

Our coverage of the Illinois case is linked here. (Mike Frisch)

June 24, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hanging On

An attorney who admitted that he had "desperately hung on too long" to law practice has been suspended for one year by the Iowa Supreme Court.

The attorney was admitted in 1971.  He went on inactive status in July 2009 in the wake of an order from a federal bankruptcy court that had required him to cease his bankruptcy practice and so advise his clients. According to the court here, he "repeatedly violated this order."

The court's opinion describes an accumulation of ethics violations over the last decade of his practice. The court also noted a number of health issues that the attorney had suffered.

The court did not impose the sanction of a 2-3 year suspension proposed by its Grievance Commission. (Mike Frisch)

June 24, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)