Friday, July 29, 2011

The Wrong Purse

The Illinois Review Board has recommended a suspension of nine months and until further order of an attorney who, among other things, made a false statement concerning her bar status to a court. The attorney had been suspended for non-payment of annual registration fees.

The circumstances of the false statement:

[The attorney] appeared with her client, Cory Gallagher, on a criminal matter in the Circuit Court of St. Clair County on January 27, 2010. In the courtroom, Assistant State's Attorney Emma Curtis told [the attorney] that she was informed that Thompson was not licensed in Illinois and asked if [she] had her ARDC card. [The attorney] told Curtis that she was registered in Illinois and had left her ARDC card in a different purse. Later, [she] asked Judge Zina Cruse to continue Cory Gallagher's case. Judge Cruse also asked [her] if she was licensed in Illinois. [The attorney] told Judge Cruse that she was licensed and knew her ARDC number. When Judge Cruse asked [her] to produce her ARDC card, [She] stated that she did not have it with her. Judge Cruse then left the bench to check the status of [her] license on her computer. Judge Cruse returned with information from the ARDC website indicating that [she] was not licensed and ordered [her] to leave the courtroom.

Judge Cruse testified that [the attorney's] conduct was "certainly somewhat disruptive" because her courtroom was full of people. She further testified that Cory Gallagher approached the bench after [she] was ordered to leave to try to speak with Judge Cruse. She advised Gallagher that she could not speak with him and that he should determine what he needed to do about getting representation.

[The attorney] admitted that her statements to Assistant State's Attorney Curtis and Judge Cruse about the status of her license were false. She admitted that she knowingly made a false statement of law to a tribunal...

There was mitigating evidence of alcoholism and depression. (Mike Frisch)

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

Pro Hac Counsel May Represent Plaintiff In Legal Malpractice Case

A plaintiff who is suing Seyfarth Shaw for legal malpractice sought the asdmission of counsel pro hac vice in the litigation. Seyfarth Shaw opposed. The Massachusetts Supreme Judicial Court granted the motion.

The court rejected the firm's Rule 3.6 argument:

Rule 3.6(a) precludes a lawyer who is involved in the litigation of a case from making an out-of-court statement "that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." However, rule 3.6(b) "identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a)." Comment [4] to rule 3.6. See Matter of Cobb, 445 Mass. 452, 475 n. 7 (2005) ("Rule 3.6 ... concerning trial publicity, contains a safe harbor provision for certain extrajudicial statements"). See also Restatement (Third) of the Law Governing Lawyers, § 109(c), at 162-163 (2000) (same, discussing earlier version of rule).

Seyfarth Shaw focuses on Brewer's statement that Seyfarth Shaw "misstated the facts," and argues that Brewer, in using this phrase, was charging Seyfarth Shaw with lying in court papers, or, as Seyfarth Shaw puts it, using words "which describe Seyfarth as a law firm that, in its own self-interest, intentionally filed false submissions to courts." As such, the argument goes, Brewer was impugning Seyfarth Shaw's "character, credibility, and reputation," thereby placing the comment within the class of subjects "which are more likely than not to have a material prejudicial effect on a proceeding," Comment [5] to rule 3.6, and thus covered by the proscription set forth in rule 3.6(a).

We think Seyfarth Shaw's characterization of Brewer's statement exaggerates the level of the statement's negative impact, but in any event, Seyfarth Shaw's argument fails. Rule 3.6, adopted in the Commonwealth in 1997, replaced the more restrictive S.J.C. Rule 3:07, DR 7-107(G), as appearing in 382 Mass. 788 (1981). Rule 3.6 follows in substance the corresponding American Bar Association (ABA) Model Rule of Professional Conduct, as amended in 1994.

A review of the record establishes that Brewer's remark quoted in the National Law Journal falls well within these two exceptions. Brewer's statement that Seyfarth Shaw, "in an attempt to relieve itself of its responsibility to ... Converge," filed court papers "that not only misstated the facts, but stated the facts in a way" that supported Costigan's notion of PCG's successor liability, in large measure tracks directly the allegations of PCG's complaint.

The court also rejected the argument that local counsel could adequately represent the plaintiff.

The link looks like it does not work. The case is PGC Trading LLC v. Seyfathe Shaw LLP & others, decided today. (Mike Frisch)

July 29, 2011 | Permalink | Comments (0) | TrackBack (0)

"Case Conceptualization"

The Arizona Presiding Disciplinary Judge accepted a consent disposition of a reprimand and six-months probation on these facts:

 In multiple counts, Respondent was retained to represent debtors in United States Bankruptcy Court. Respondent and his wife, a non-lawyer, also owned and operated a law-related business, Bankruptcy Helpers, Inc., which acted as a call center and referred clients to lawyers employed by Respondent’s firm, the Gukeisen Law Group, as independent contractors. The independent contractors would sign prospective clients, collect a deposit "retainer" fee and then refer the matter to Respondent.

Respondent failed to differentiate between his law practice and law related business and failed to diligently represent and adequately communicate with clients. Respondent further charged an unreasonable fee when he accepted retainers from clients and then did not decline other work or reserve his time for clients. In many cases, no substantive work was performed and no documents were filed to justify the fees. Clients were told that the retainers represented charges for "case conceptualization," and for processing refunds. When clients requested an accounting and or terminated the representation, they were told by staff that the fees were non-refundable or that the funds were expended, even though no substantive work was performed.

Respondent’s knowing and negligent misconduct caused actual injury to clients and constituted grounds for the imposition of discipline pursuant to the Rules of the Supreme Court of Arizona and violated Rule 42, ERs 1.3, 1.4, and 1.5.

(Mike Frisch)

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

The Lure Of D.C.

The District of Columbia Board on Professional Responsibility has recommended a three-year suspension with fitness of an attorney who had practiced in the Superior Court taking court appointments until the court created a CJA panel and rejected his application. He then left for Canada, but

Respondent returned to the District of Columbia when he learned that the District of Columbia Rules of Professional Conduct would permit him to solicit clients. As the evidence during the hearing showed, he also believed that those rules allowed him to enter into agreements with clients that narrowly defined the extent and nature of his representation, without fully explaining those limitations to his clients, and permitted him (i) to refuse to provide any service beyond that set forth in the initial retainer agreement unless additional compensation was paid regardless of the consequences to his clients, (ii) to refuse to provide any services if his clients did not pay his full fee, and (iii) to keep whatever fee he was paid regardless of the level of work performed. In addition, Respondent did not recognize any obligation to assure that his clients were not harmed when he withdrew, or to at least minimize any such harm. Respondent also demonstrated a cavalier attitude toward his obligation to deal honestly and forthrightly with the courts. He failed to appear on time, dissembled, if not lied, to judges, and otherwise did not demonstrate the respect expected of lawyers when dealing with the courts.

The board indicated that if it "was writing on a clean slate"  it would impose disbarment.

 The case is In re Samad and can be found at this link. (Mike Frisch)


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

Compromise Verdict

A Louisiana Hearing Committee, in what it called a "compromise verdict" has proposed a three-year suspension of an attorney who had diverted money of his law firm for personal use:

[The attorney] self-reported his conduct to the Office of Disciplinary Counsel. Other than this infraction, which he duly admits, he has enjoyed a highly successful practice and has been regarded as a valuable member of the community. The attorneys and clients who appeared on his behalf testified regarding his trustworthiness, their acknowledgement of his mistake, and their sincere belief that [he] is a good man and that this conduct would not be repeated. He is especially regarded among the legal community with having a high degree of knowledge in the field of tax and property transactions and it is evident from listening to the testimony of both lawyers, clients, and CPAs that his opinions on those matters are well regarded and that he has been a valuable asset to the community and to the profession in the narrow field in which he practices. The committee found the testimony persuasive and significant in mitigating the baseline sanction of disbarment.

The committee also deems it important that no client funds or property were implicated in the conversion, that the public was not at risk due to [his] behavior, that no restitution is owed, that all financial disputes between [the attorney] and his former law partners have been confidentially compromised, and all litigation dismissed with prejudice.

Conversion of funds is a serious infraction, and the committee views the charges seriously and feels that a suspension from the practice of law is warranted. Although there was some support in the committee for a deferment for a portion of the suspension, the committee was not unanimous on that point. In a compromise verdict by the committee, the committee unanimously recommends the sanction of a three year suspension.

(Mike Frisch)

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

Thursday, July 28, 2011

Neither The Marriage Or the License Could Be Saved

An attorney who engaged in a pattern of deception was suspended for three years by the New York Appellate Division for the First Judicial Department.

The court described the circumstances:

In the spring of 2001, respondent and his wife jointly purchased a house in Pawling, New York. While they intended to use it as a summer home, they later decided to use it as their full time residence, which required substantial renovations. Respondent's wife demanded that the funds for the renovations come solely from respondent's earnings and refused to join respondent in applying for a line-of-credit loan.

In 2001, respondent applied for and later received a line-of-credit mortgage in his and his wife's name from Citibank for $100,000 ("the Citibank mortgage"). Respondent signed his wife's name to the loan application, misrepresenting to the bank that he was her attorney-in-fact by indicating next to her name that he had power-of-attorney (PA). Respondent's wife had not signed a PA form, nor had she authorized respondent to place her signature on the application or mortgage. The fraudulent mortgage was recorded with the Dutchess County Clerk's Office.

In 2003, respondent obtained a second mortgage in his and his wife's name from Charter One Bank in the amount of $366,000 ("the first Charter One Mortgage"). Respondent forged his wife's signature on a PA form without her permission, misappropriated the notary stamp of a partner (Stanley C. Rucheman), and falsely notarized the PA by forging his partner's name without his knowledge or permission. Respondent then caused the PA form to be recorded with the Dutchess County Clerk's Office.

Respondent subsequently executed a sworn affidavit falsely swearing that his wife had appointed him as attorney-in-fact, and that the forged PA was in "full force and effect." He used this forged PA to obtain the first Charter One mortgage and signed his wife's name to both the mortgage application and the mortgage. The first Charter One mortgage was filed in the Dutchess County Clerk's office. Respondent used the proceeds to fully satisfy the Citibank mortgage. In connection thereof, he sent a cover letter to Citibank in which he signed his wife's name and falsely indicated that he was her attorney-in-fact.

In 2004, respondent obtained another mortgage from Charter One in the form of a line of credit for $167,000 (the "second Charter One mortgage"). Respondent signed and initialed another PA form without his wife's permission, misappropriated the stamp of a co-worker (Beth Tractenberg), notarized the PA by forging the co-worker's name without her permission, and caused the PA to be filed and recorded with the Dutchess County Clerk's Office. Respondent used the forged PA to obtain the second Charter One mortgage by signing his wife's name to both the mortgage application and the mortgage without her permission and the mortgage documents were filed in the Dutchess County Clerk's Office.

Respondent's fraudulent conduct was discovered in the course of divorce proceedings commenced by his wife in 2006. Funds from the loans were allegedly used for familial purposes and deposited into respondent and his wife's joint account. Respondent has since assumed sole responsibility to pay the loans back and neither the banks nor the Dutchess County District Attorney's office have taken action against him with respect to his misconduct.

There were some sympathetic circumstances. Nonetheless:

Giving due consideration to these factors, we nevertheless find that this case is distinguishable from those in which attorneys received short suspensions. Respondent's misconduct in obtaining three mortgages, from two lenders, by fraud, over a period of three years was repetitive, deliberate and deceitful. While respondent strongly disputes that his multiple acts of forgery constitute an aggravating "pattern of misconduct," we disagree.

Significantly, respondent's misconduct included the misappropriation of the notary stamps of his work colleagues and the forgery of their signatures. This not only put his own career in jeopardy, but also adversely impacted his colleagues and his firm. We further note that while respondent stresses his cooperation and remorse, he had many opportunities to reconsider and admit his wrongful conduct, but did not do so, remaining silent until it was brought to light by others.

(Mike Frisch)

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

Wednesday, July 27, 2011

Jerome Carlin on the Solo Practitioner's Practice and Ethics: Lawyers on Their Own

Loto2 sm Posted by Alan Childress

At the Quid Pro project, we republished Jerry Carlin's classic sociological/ethics study of solo practitioners, Lawyers on Their Own. Through extensive interviews and empirics, he exposed what then was a hidden, and somewhat desperate, reality--and influenced this kind of research in the profession and its subgroups. Dr. Carlin, who became a full-time artist after serving as director of a legal aid association in SF, contributed the amazing cover art. And Bill Gallager, a law prof and ethics teacher at Golden Gate, wrote a new Introduction on the book's lessons and scholarly impact. I thought this would be of interest to blog readers. The book is a new paperback at Amazon, and also in ebook: Kindle, B&N Nook, Smashwords, and Apple iBooks formats.

Not on topic, but just fyi, Stanford Law Review and QP released to Kindle, Nook, and Apple formats the SLR's latest issue, which is a symposium on patent law and its future afterElectric-chair author approved  Bilski v. Kappos. Subjects include business methods and biotech IP, and the writers are such internationally known IP scholars as John Duffy and Mark Lemley. ...Also at Kindle, Nook, SW and Apple (and Aug 25 in print) is Michael Meltsner's account of how his team at the NAACP Inc. Fund took on the death penalty in a 9-year campaign, and won (for a while, at least). It's his book Cruel and Unusual, first published by Random House; it became our 50th book published since April 2010.

As to Mike's post on paying bar dues from the trust account, I recall that Nancy Rapoport once called such a move the bar equivalent of a kick-me sign.

July 27, 2011 in Books, Childress, Interviewing | Permalink | Comments (0) | TrackBack (0)

Righteous Indignation Doesn't Help

An Illinois Hearing Board has recommended a 60-day suspension (stayed on conditions) of an attorney who represented conflicting interests in six real estate transactions:

The charges in Count I are based on six real estate transactions in which Respondent represented one or both of the parties and also acted as an agent for Ticor, the title company that handled these transactions. The complaint is based on allegations that Respondent failed to adequately disclose the conflicts stemming from her own financial interests in these transactions and to obtain proper written disclosures as required by the Title Insurance Act, 215 ILCS 155/18. Respondent is specifically charged with the following misconduct: a.) failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation in violation of Rule 1.4(b); b.) representing a client where the representation of that client was materially limited by the Respondent’s responsibilities to a third person or by Respondent’s own interests in violation of Rule 1.7(b); and c.) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.

We find that all of the charges in Count I were proven by clear and convincing evidence.

Other counts involved representing both buyer and seller in some of the transactions:

...Counts II through V involved four of those same transactions where she improperly represented both the buyer and the seller. Respondent’s misconduct is aggravated by the fact that it was not an isolated act, but involved multiple instances of the same type of improper behavior. See In re Cutright, 233 Ill. 2d 474, 491, 910 N.E.2d 581(2009). Thus, she demonstrated a pattern of failure to comply with applicable ethical rules.

We also find it aggravating that, with respect to the charges in Count II through V, Respondent failed to show any real remorse or to display any indication that she understood or appreciated the nature of her wrongdoing. See In re Lewis, 138 Ill. 2d 310, 347-48, 562 N.E.2d 198 (1990). While she acknowledged her mistakes in failing to obtain the required written disclosures, she continued to deny that she had done anything wrong by representing both the buyer and the seller in four of these matters. Of particular concern to us is Respondent’s apparent failure to understand the reasons behind the prohibition on representing both sides in a transaction or to appreciate the potential problems associated with such a practice. Even in the face of these disciplinary proceedings, Respondent has still failed to demonstrate that she currently understands the rules regarding conflicts of interest and her ethical obligations there under. To the contrary, at one point during the hearing, Respondent indignantly implied that she should not be subjected to discipline beyond censure because she is a role model to her community. (Tr. 139-40). Such righteous indignation in the face of Respondent’s utter failure to grasp the existence, much less the seriousness, of Respondent’s engagement in blatantly obvious conflicts of interest is of serious concern.

The attorney is not presently practicing law:

[The attorney] currently holds the position of Program Director of Criminal Justice at Westwood College where her responsibilities include managing 12 criminal justice instructors, serving as liaison between students and administration, and teaching classes. She began working at Westwood as an adjunct instructor in 2006 while she was still operating [her firm]. Respondent also became an adjunct instructor at Westwood at this same time. In October of 2008, [she] accepted a full-time position at Westwood and began to take on fewer cases at [her firm]. After she accepted her current position as Director in 2009, this further reduced her ability to practice at the firm...

(Mike Frisch)

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

Defrauding Judge May Lose Pension

From the

The Pennsylvania Court of Judicial Discipline must decide whether a former Superior Court judge will lose his $81,000 annual pension because he was convicted of a $440,000 insurance fraud for which he's serving 46 months in federal prison.

The former judge, 62-year-old Michael Joyce, of Erie County, did not attend Tuesday's hearing in Harrisburg before the court which deferred ruling on the issue.

Joyce was convicted in 2008 of defrauding two insurance companies by exaggerating injuries from a low-speed auto accident in August 2001. He was also required to forfeit some items he spent that money on, including his home.

The Erie Times-News says the Pennsylvania State Employees Retirement System ruled in 2009 that Joyce could keep his pension, but the Judicial Conduct Board forced the issue by bringing it before the disciplinary court.

(Mike Frisch)

July 27, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Suspension Is Not Forever

The Minnesota Supreme Court has reinstated an attorney who had been suspended for at least three years in 2000 and an additional two years in 2002.

 The first case involved the following violations:

misappropriating client funds, fabricating and forging documents and making false statements under oath intended to conceal the misappropriation, submitting false police reports alleging that former clients who had filed an ethics complaint against him had burglarized his office and kidnapped him, and sending an anonymous threatening note to the district court judge assigned to hear the disciplinary proceedings with the intent to make it appear that the complaining former clients had sent the note...


The second case involved false statements to the court and to South Dakota in seeking bar admission and continuing to practice under a fictitious identity.


The petitioner must submit to periodic blood tests and other probationary conditions. He may not practice as a solo and must inform any firm that he practices with of the probation terms.  (Mike Frisch)


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

Conviction Warrants Temporary Suspension

A justice of the Massachusetts Supreme Judicial Court ordered a temporary suspension of an attorney convicted of attempted extortion, witness intimidation and filinfg a false police report. Each of the offenses were "serious crimes."

The bar proceedings will be stayed while an appeal of the convictions is pending. (Mike Frisch)

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

King Of The Wild Frontier

The Tennessee Court of Appeals has affirmed an order directing the person who had possession of Davy Crockett's original 1805 certificate of marriage to return it to Jefferson County. The license had been removed from the county courthouse in the 1930s:

Questioning the historical prominence of David Crockett around the time the license was taken, Mrs. Smith argues in her brief that Crockett was “largely forgotten” by the late 19th century but his legend was reborn when Walt Disney made a 1950s television series about the Tennessean. Assuming arguendo that Mrs. Smith is correct, she has stated in the record that her uncle, Harry Vance, was an “admirer of David Crockett” and a “David Crockett enthusiast” and that her father, Paul Vance, had an interest in David Crockett. Based on her own admission, the two individuals primarily responsible for removing the subject marriage license from the Jefferson County courthouse in the 1930s or 1940s were certainly aware of David Crockett and most likely recognized his historical significance. Accordingly, we reject this issue as lacking merit.

The license (the marriage never took place) apparently had been removed by the Mrs. Smith's uncle (a county bigwig) and given to her father. The court here found the circumstances of the removal lost to history but that the removal was an unlawful conversion of county property. The court noted that the county had kept it for 130 years or so.

The existence of the document came to light when Ms. Smith contacted the county historical society in the mid to late 1990s.  Eventually, a demand was made and Mrs. Smith refused to return it. This litigation followed.

The court found no error in the failure to admit Mrs. Smith's interview on Antiques Roadshow. The court also affirrmed contempt findings against her.

The court found the trial court could take judicial notice that Crockett had been a congressman from that district and had died at the Alamo.

Mrs. Smith returned the license in February 2010.

The trial court's view of the proffered explanation of the removal: "[T]hat dog just won't hunt." (Mike Frisch)


July 27, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 26, 2011

Don't Pay Bar Dues With A Trust Account Check

A Massachusetts attorney has been reprimanded for violations of the rules governing the operation of trust accounts. As reflected in the linked summary, the problems came to light when she paid her bar dues with trust account checks in 2009 and 2010.

A lesson there. (Mike Frisch)

July 26, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Public Censure For Faxing

From the web page of the Colorado Supreme Court:

The Hearing Board publicly censured [an attorney]. Respondent flouted the Twenty-Second Judicial District’s Administrative Order 94-03 by repeatedly faxing non-emergency pleadings for filing and by refusing to pay the fees associated with the court’s receipt and handling of those faxed pleadings. Respondent’s pattern of ignoring the court’s mandates and billing invoices, rather than pursuing available avenues to challenge or otherwise seek relief from the court’s orders, flagrantly contravened professional norms and constitutes conduct prejudicial to the administration of justice in violation of Colo. RPC 8.4(d).

The attorney is one of approximately 20 attorneys who live and practice in the district, which consists of Montezuma and Delores Counties in southwest Colorado.

The opinion is linked here. (Mike Frisch)

July 26, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fuzzy Line

Daniel Fisher in Forbes has this article on the difficulties presented to laypersons in understanding the contours of state rules governing unauthorized practice. He notes:

All 50 states have rules and laws prohibiting the unauthorized practice of law, ostensibly to protect consumers. Defenders of these laws  make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.

Fisher recounts a number of recent enforcement cases and notes a Kentucky matter:

For document-preparers like Tarpinian, determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.

But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out?

The Tarpinian decision is linked here. (Mike Frisch)

July 26, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

Turnabout Not Fair Play

An Illinois attorney has agreed to a reprimand in a matter involving allegations that she had breached her duty of confidentiality after being discharged by a divorce client who wished to set aside a settlement. 

The stipulated specifics after the attorney withdrew:

On November 2, 2007, [the client] filed a motion to set aside the oral settlement agreement in which she claimed that Respondent had not provided her with sufficient information to give informed consent to the agreement; that the agreement was unconscionable; and that Respondent coerced her into entering into the agreement. [The client] attached to the motion copies of six email communications between herself and Respondent in which they communicated regarding [her] divorce case.

Between November 2, 2007, and November 17, 2007, [the client's] husband's attorney, Ron A. Cohen, telephoned Respondent and told her that he intended to call her as a witness at the hearing on [the client's] motion to set aside the oral settlement agreement.  Respondent told Cohen that she had information that would refute [the client's] allegations of attorney coercion.

Shortly thereafter, Respondent caused copies of at least 32 distinct email communications between [the client] and Respondent or her employees to be sent to Cohen.  The materials sent to Cohen consisted of 519 pages, in part because they contained duplicate copies of some of the emails.  The correspondence included information pertaining to Respondent's representation of [the client] that was confidential or secret.

 Respondent did not contact [the client] prior to sending the materials referred to...above, to Cohen. At the time that she sent Cohen the emails, Respondent believed that she was entitled to use them to defend herself from [the client's] allegations that she had engaged in wrongful conduct pursuant to Rule 1.6(c)(3) of the Illinois Rules of Professional Conduct. Respondent considered the allegations to be false.  However, Respondent did not research the applicability or scope of that Rule prior to producing the emails to Cohen, and she did not take steps to redact the emails, obtain a court order authorizing the release of those emails, or require a subpoena for the production of those materials.

In these matters, the governing principles are clear: notify the client, require a subpoena and let a court decide what is discoverable. (Mike Frisch)

July 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disqualification Motion On Rule 3.7 Grounds Premature

The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to disqualify counsel, concluding that the motion was premature:

Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.01) generally prohibits an attorney from acting as an advocate before a tribunal where it is likely that the attorney will be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client, or where the attorney knows he or she is likely to be a witness on a significant issue of fact on the client's behalf, unless the testimony relates to enumerated subjects, not here relevant (see Goldberger v Eisner, 21 AD3d 401 [2005]; Broadwhite Assoc. v Truong, 237 AD2d 162, [1997]).

In determining whether to disqualify an attorney on the ground that he or she will likely be a witness, the court is guided, but not bound by, the standards set forth in Rule 3.7 (see S & S Hotel Ventures LTD. Partnership v 777 S.H. Corp., 69 NY2d 437, 445 [1987]), and whether to disqualify an attorney rests in the sound discretion of the Court (see Gulino v Gulino, 35 AD3d 812 [2006]). While discovery may establish the substance and necessity of plaintiff's attorney's testimony so as to permit disqualification under Rule 3.7, the court exercised its discretion in denying defendants' motion on the ground that it was premature at this early stage of the proceedings (see Kirshon, Shron, Cornell & Teitelbaum v Savarese, 182 AD2d 911 [1992]).

(Mike Frisch)

July 25, 2011 | Permalink | Comments (0) | TrackBack (0)


An ad hoc Hearing Committee in the District of Columbia recommends dismissal of all charges brought against a former attorney in the Office of General Counsel, Civil Rights Division of the United States Department of Agriculture ("USDA"). The charges involved primarily allegations of conflicts of interest and dishonesty.

The attorney had moonlighted as a fitness instructor and, later, working for a private firm consulting in EEO matters. Two of the consults involved USDA. The hearing committee found that these activities did not violate ethics rules.

The attorney taught a step aerobics class during lunchtime at USDA.

The committee found a closer question of dishonesty in filling out a USDA financial disclosure form. The committee found that the attorney was negligent, bordering on recklessness, but not dishonest in that regard.

The committee rejected the attorney's claim that the charges were barred by a Maryland disciplinary case on some of the same charges, finding that collateral estoppel did not apply. Maryland had charged the false statements.

The recommendation can be found at this link. The case is In re Donna Peterkin.

The recommendation is reviewed by the Board on Professional Responsibility. (Mike Frisch)

July 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practicing While Intoxicated

The Indiana Supreme Court has imposed a stayed 180 day suspension with probation in a matter in which the attorney was intoxicated in court. She had "slurred her speech and appeared unsteady on her feet." The attorney pleaded guilty to public intoxication and self-reported the conviction to disciplinary authorities.

The sanction was an agreed disposition. (Mike Frisch)

July 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not To Carp, Cavil, Censure, Or Castigate

Last month, the West Virginia Supreme Court of Appeals upheld as constitutional a statute that places a cap on damages in professional malpractice cases.

A circuit court judge sitting by designation recently filed a dissent. The judge raises some questions:

 Why should a circuit court judge, honored to be sitting as a temporary justice in the MacDonald case, take the time (and have the effrontery) to dissent?

It is not because of the way I was treated by the Court. The entire Court was most deferential in considering my opinions.

It is not because I seek to carp, cavil, censure, or castigate our Supreme Court of Appeals.

In fact, I cannot allude to this Court without exultation. I have immeasurable respect for our Supreme Court and in particular for Justice Robin Davis, one of the brightest and most dedicated persons who have ever served on our highest state court.

It is not because I want to take issue with the high quality of medical care in West Virginia and the fact that doctors and other medical professionals needed some legislative help to control exorbitant malpractice insurance costs.

I dissent because, by this counterintuitive decision in this decisively important case, the justices capitulated to the West Virginia Legislature’s political-and unconstitutional-mistreatment of medical malpractice victims, and by its decision, delivered the coup de grâce to the rights of thousands of West Virginians to be fully compensated for losses caused by the negligence of medical professionals.

Hot coffee, anyone? (Mike Frisch)


July 25, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)