Wednesday, November 30, 2011
The New Mexico Supreme Court has imposed a suspension of one year without automatic reinstatement of an attorney, rejecting the automatic reinstatement proposed by its Disciplinary Board. The court concluded that the series of complaints of misconduct in state and federal court "set forth a deeply troubling mosaic of ethical misconduct that...unquestionably calls for discipline and seriously calls into question [the attorney's] fitness to practice law."
Notably, the court was constrained to state that "resolution of these complaints was delayed inexcusably before the Disciplinary Board, which enabled [the attorney] to claim an appearance of innocence for far too long. As a result, this Court has undertaken substantial revisions to our disciplinary process to ensure that no such delays will reoccur." (Mike Frisch)
A disbarment decision by the Colorado Presiding Disciplinary Judge imposes the ultimate sanction where the attorney
...engaged in an elaborate scheme to defraud the prospective purchaser of a store owned by [the attorney's] wife. As a result of [his] dishonesty, the purchaser lost over five-hundred thousand dollars. [The attorney] neither paid a civil arbitration award nor participated in the disciplinary proceeding.
The store in question was a Subway sandwich shop. The sale went forward without the approval of the national frachiser of the Subway chain. The attorney's wife received wire payments totalling $350,000 and thereafter (with his knowledge) locked the purchaser out and took all the funds in his operating account. He then aided his wife in withdrawing the wired funds and left the LLC that had received the funds "essentially judgment-proof." (Mike Frisch)
From the web page of the Pennsylvania Disciplinary Board:
The Disciplinary Board has added a Google Search capability to its website, www.padb.us. The search window, located at the top of the Attorney Information, Consumer Information, and Look Up an Attorney pages (and most pages under those portals), allows a simple search on a name, term, number, or a multiword term, and has some Boolean search capability. The search will locate results on most pages such as the Recent Discipline, Disciplinary Reporter, Frequently Asked Questions, and news items. The Google search feature will retrieve some but not all results from the Attorney Registration database. To assure that users find all available information in the Attorney Registration database, we recommend using the flexible search feature built into the Look Up Attorney page in addition to or instead of the Google search.
It's nice to see a disciplinary system that actually wants consumers and other interested persons to find information about disciplined attorneys. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has dismissed a complaint alleging legal malpractice and breach of fiduciary duty against Dechert LLP premised on the following alleged facts:
In 2005, Marc Dreier, who was then an attorney, proposed to plaintiffs that they participate in a short-term note program to finance the purchase of foreign real estate assets. The designated borrower would be Dreier's clients, Solow Realty & Development Company, LLC, and affiliated companies controlled by real estate developer Sheldon Solow (collectively Solow Realty), and Dreier would be the guarantor. The parties executed two loans totaling $60 million in 2006, and, in 2008, Dreier proposed another $50 million loan transaction. For this last loan transaction, plaintiffs required Solow Realty and Dreier to retain independent counsel to issue a legal opinion as to whether Solow Realty and Dreier had carried out the necessary formalities to render the loan documents valid and binding on them. Ostensibly, Solow Realty and Dreier retained defendant for this purpose. Dreier furnished the necessary documents and information to defendant for the preparation of the opinion. All the documents to which Solow Realty was a signatory appeared to have been signed by Solow Realty, and some bore "what appeared to be" the signatures of Sheldon Solow and Solow Realty's CEO.
Plaintiffs contend that they relied on defendant's legal opinion that the loan documents were duly executed and delivered and that the loan was a valid and binding obligation on Solow Realty and Dreier. Plaintiffs wired $50 million to an attorney trust account set up at Dreier's firm. Several months later, Dreier was arrested in connection with another fraud scheme, and plaintiffs discovered that Solow Realty had no knowledge of and was never a party to the loan transactions and that Dreier had falsified the documents and forged the Solow Realty signatures.
The malpractice claim failed because there was no attorney-client relationship. As to the fiducuary claims:
Although there is no contractual privity between the parties, the complaint sufficiently alleges a relationship of "near privity" for the purpose of stating a cause of action for negligent misrepresentation or negligence. Plaintiffs allege that the particular purpose of the opinion letter was to aid them in deciding whether to enter into the loan transaction, that defendant was aware that they were relying on the opinion in making that decision, and that defendant evinced its understanding of that reliance by addressing the legal opinion to them. However, the complaint fails to allege (a) that plaintiffs informed defendant that its obligations were not limited solely to a review of relevant and specified documents or (b) that plaintiffs informed defendant that it was to investigate, verify and report on the legitimacy of the transaction. Absent such factual allegations, plaintiffs cannot establish that defendant breached a duty of care. As Dreier was Solow Realty's attorney and the guarantor of the loan, defendant had no reason to suspect that Solow Realty was not in fact a party to the loan transaction or that Dreier forged the signatures of its principal and CEO. We note that plaintiffs had previously made two large loans to Dreier, while represented by international firms that specialized in financial transactions. Prior to Dreier's arrest, plaintiffs never suspected fraud.
Moreover, the opinion, by its very terms, provided only legal conclusions upon which plaintiffs could rely. The opinion was clearly and unequivocally circumscribed by the qualifications that defendant assumed the genuineness of all signatures and the authenticity of the documents, made no independent inquiry into the accuracy of the factual representations or certificates, and undertook no independent investigation in ascertaining those facts. Thus, defendant's statements as contained in the opinion, were not misrepresentations. Finally, in accordance with the loan agreement, the opinion was reviewed by plaintiffs' counsel before plaintiffs accepted it. (citations omitted)
Tuesday, November 29, 2011
An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case.
The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.
The Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance." (Mike Frisch)
The Maryland Court of Appeals has denied the reinstatement request of a high-profile lawyer/lobbyist comviction of bribery in California. The conviction was later overturned, but the court nonetheless declined to reconsider its previous order accepting his disbarment by consent.
The Daily Record had this report in October 2008 on the argument before the court:
Cooke was disbarred by consent based on the 2004 conviction, which arose out of the failure of a publicly funded counseling clinic in Kern County, Calif. Cooke was accused of funneling half the fees he received from the clinic to the wife of its owner, some $57,000 in all. The state of California declined to prosecute either Cooke or his co-defendant on remand.
While Thursday’s proceeding was called an oral argument, the Web cast shows precious little in dispute. Figinski laid out the case in favor of his old friend and former law partner. [Bar Counsel] Grossman’s presentation was at least as compelling in Cooke’s favor as Figinski’s. Each pointed to prosecutorial misconduct in the underlying conviction.
Cooke’s innocent explanations for the payments to Bobbie Cumberworth — principally, that she was a legitimate consultant on special education issues — “were buried,” Grossman told the court, while inadmissible evidence was allowed in.
“I don’t know what the trial judge was thinking,” he said.
Given the chance to respond after Grossman, Figinski rose, stood at the microphone and paused briefly before saying, “I think I’ve said quite enough.”
He couldn’t leave it at that, of course, but the judges rewarded the sentiment with a hearty round of laughter.
The court gave no indication of when it would decide.
The court in its order gave no indication of the cause of the three-year delay between the argument and the decision. (Mike Frisch)
From the web page of the Ohio Supreme Court:
In a 7-0 decision announced today, the Supreme Court of Ohio declined to issue a writ of mandamus compelling a school district to provide copies of requested documents to a parent involved in a lawsuit against the district. The Court based its ruling on a finding that the requested documents were subject to the attorney-client privilege between the district and its lawyers, and therefore were not subject to disclosure under the state Public Records Act.
Angela Dawson, the mother of two students enrolled in the Bloom-Carroll Local School District who was pursuing a lawsuit against the district, submitted public records requests demanding that the district provide her with copies of 1) detailed invoices sent to the district by a law firm it had retained to defend against Dawson’s suit; and 2) copies of all correspondence the district had received from its insurance carrier appointing Janet Cooper as the district’s insurance attorney and describing the liability and exposure of the district and the insurance company related to the claims asserted in Dawson’s lawsuit.
The district provided Dawson with summaries of the law firm invoices noting the attorney’s name, the invoice total and the matter involved, but refused to provide copies of the detailed monthly billing statements that described the specific work performed, legal issues that were researched, and detailed communications among the attorneys, the district and its insurer. The district also refused to provide Dawson with a letter that the insurance company’s claims analyst had sent to the district and its attorneys regarding Dawson’s lawsuit, on the ground that the information it contained was privileged.
Dawson filed suit in the Supreme Court seeking a writ of mandamus to compel the district to disclose the requested documents. After an unsuccessful attempt to resolve the dispute through mediation, the Court issued an alternative writ directing the parties to submit evidence and written briefs, and ordered the district to provide copies of the disputed documents to the Court for in-camera inspection.
In today’s per curiam opinion denying the requested writ, the Court wrote: “R.C. 149.43(A)(1)(v) exempts ‘[r]ecords the release of which is prohibited by state or federal law’ from the definition of ‘public record.’ ... In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A), which provides a testimonial privilege, and by common law, which broadly protects against any dissemination of information obtained in the confidential attorney-client relationship.”
“ ... The school district refused to make the requested itemized attorney-billing statements available to Dawson because the statements contained detailed descriptions of work performed by the district’s attorneys, statements concerning their communications to each other and insurance counsel, and the issues they researched. The withheld records are either covered by the attorney-client privilege or so inextricably intertwined with the privileged materials as to also be exempt from disclosure. Therefore, the school district properly responded to Dawson’s request for itemized invoices of law firms providing legal services to the district in matters involving Dawson and her children by providing her with summaries of the invoices including the attorney’s name, the fee total, and the general matter involved. No further access to the detailed narratives contained in the itemized billing statements was warranted.”
“The February 9, 2010 letter from the school district’s insurance company to the district identifying Janet Cooper as the district’s attorney in Dawson’s due-process lawsuit against the district is also protected by the attorney-client privilege. The letter, which was addressed to the district and copied to the insurance counsel who would represent the district, evaluates Dawson’s claim and the extent to which the claim might be covered by the district’s insurance policy and instructs the district to cooperate with the insurance company and the attorney selected by the company to represent the school district to preserve its insurance coverage. In effect, the insurance company stands in the shoes of the district, and its letter naming Cooper as the district’s attorney in Dawson’s due-process lawsuit is covered by the attorney-client privilege.”
The Court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.
The court's opinion is linked here. (Mike Frisch)
The South Carolina Supreme Court has imposed a prospective suspension of six months on the following agreed facts:
In 2005, respondent and his wife separated and, in 2007, became involved in a contentious divorce. Between July 2007 and February 2008, respondent was charged with criminal domestic violence, two counts of trespassing, second degree burglary, stalking, and simple assault. As a result of these arrests, respondent was placed on interim suspension...The criminal charges involved matters with respondent's former wife and former sister-in-law.
All charges against respondent were later dismissed with prejudice and the solicitor issued a letter stating that, after thorough and complete investigation, he believed that the matters did not rise to the level of criminal wrongdoing and that all of the matters should be dealt with by the Family Court.
Respondent denies he committed any crimes as alleged by his former wife and former sister-in-law. However, he admits he could have used better judgment.
In 2010, after the criminal charges were dismissed, respondent filed a pro se action against the City of Columbia alleging false arrest. In the course of representing himself in the matter, respondent subpoenaed Witness A, a former neighbor and long-time friend of both he and his former wife, to give a deposition. Witness A was not a witness to any of the matters out of which the criminal charges against respondent arose; however, Witness A had provided an affidavit in support of respondent's former wife during the divorce proceeding. Respondent also subpoenaed two other former neighbors who had supported his former wife during the divorce proceedings. Respondent admits he subpoenaed the three witnesses to take their depositions as he believed that they might have information regarding the allegations of criminal wrongdoings made by his former wife. Respondent fails to explain why the testimony of any of these witnesses was pertinent to his suit against the City.
Over the course of two days, respondent deposed Witness A for over five hours, including breaks. Respondent admits he asked improper questions during the deposition. He further admits that there were times when he talked over the deponent and there were instances where he did not let Witness A finish his answer.
In addition, respondent admits he asked a number of improper questions of Witness A. In particular, he asked Witness A about his sexual orientation and whether he had been tested for HIV. He also asked Witness A whether he had Alzheimer's Disease when the witness' recollection was incomplete. Respondent admits the question should not have been asked in this fashion.
Respondent regrets and apologizes for his questions during the deposition. He submits that the stress of his divorce and of deposing a former friend who had sided with his former wife in their divorce caused his emotions to get the better of him.
Respondent has since signed a Settlement Agreement and Release and Stipulation of Dismissal concluding the matter against the City of Columbia and its police department.
The court noted:
Although we accept the Agreement, the Court is deeply concerned about respondent's emotional state and his ability to execute sound judgment. As evidenced by the facts presented in the Agreement and respondent's testimony during oral argument, respondent is obsessed with regaining his reputation in the community and with his ex-wife from whom he has been separated and/or divorced for approximately six years. Further, during argument, he initially refused to accept any responsibility with regard to the instances which led to his several arrests and, instead, characterized himself as the victim in each of the situations. Consequently, we order respondent to continue psychological counseling for two (2) years, require respondent's counselor to file quarterly reports addressing respondent's progress with the Commission, and authorize the Investigative Panel of the Commission to extend the counseling requirement at the conclusion of the two (2) year period if it deems it necessary.
The suspension was imposed prospectively because the deposition misconduct took place during the interim suspension. Given the allegations in the first matter, it is unfortunate that the attorney's last name is Hammer. (Mike Frisch)
Monday, November 28, 2011
The disciplinary case involving an attorney who advertised on Craigslist for a secretary with duties other than secretarial has been brought to closure with the following order of the Illinois Supreme Court:
The motion by the Administrator of the Attorney Registration and Disciplinary Commission to approve and confirm the report and recommendation of the Hearing Board is allowed, and respondent Samir Zia Chowhan is suspended from the practice of law for one (1) year and until further order of the Court.
Our prior coverage is linked here. The misconduct also involved a follow up e-mail to an applicant. (Mike Frisch)
A New York City civil court judge has been admonished for misconduct in connection with her campaign for judicial office.
A majority of the Commission on Judicial Conduct found that the judge reviewed and used a campaign palm card that included photos of her and another judge.
The other judge had been endorsed by the New York Times. The disciplined judge had not. The words "Endorsed by the New York Times" appeared on both sides of the card "in such a manner that it could be interpreted to mean that both respondent and [the other judge] had been endorsed by the Times."
The other judge raised concerns about the palm card prior to the election. The judge consulted with her father and her campaign manager and relied on their advice to continue to use the palm card.
A dissent would find the activity protected by the First Amendment:
As a Commission, our duty is to respect both the First Amendment and the quandry this system imposes on judicial candidates. It ain't pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That's the least the First Amendment demands and the least we can do to be fair to judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.
In this case, the referee has ably documented the reasons why [the judge] should not be disciplined for participating in the process we all require her to endure. Though she and we may wish that the palm card had been handled differently in retrospect, her hindsight and our aspirations are not a basis to find that she violated the rules.
The commission's press release is linked here. (Mike Frisch)
A Louisiana hearing committee has found no misconduct in two matters charged by the Office of Disciplinary Counsel.
One matter involved allegations that the attorney engaged in unauthorized Colorado practice. The hearing committee found that she had responded to the Colorado district court's invitation for a submission and that she represented that she was the litigant's Louisiana attorney:
Suffice it to say, Respondent unknowingly stepped into the trap unwittingly divined by [the Colorado judge] by complying with his orders to provide further submissions to the court...
She had sought no relief from the Colorado court.
The findings in the other matter were ordered sealed by the hearing committee. (Mike Frisch)
Thursday, November 24, 2011
The web page of the Massachusetts Board of Bar Overseers reports that an attorney was suspended for a year and a day for misconduct relating to his bigamous second marriage.
The attorney married Jacqueline in 1974. They separated in 1979. He was admitted to practice in Massachusetts in 1988.
He then met Sheila and married her in 1995. He had not gotten divorced from Jacqueline and falsely certified that the marriage was his first.
His child with Sheila was born in 2000.
Sheila was unaware of the marriage to Jacqueline until out-of-state divorce papers were served on her in 2001. She secured an annulment and was awarded sole custody of the child.
The summary reports that the attorney engaged in dishonest conduct not only in his false certification on the marriage documents. He also violated his duty of honesty toward his purported wife Sheila by concealing the truth from her.
The attorney also failed to participate in the bar proceedings.(Mike Frisch)
Wednesday, November 23, 2011
The Louisville Courier-Journal reports that Kentucky's Chief Disciplinary Counsel has been terminated from her position:
The Kentucky Bar Association’s chief disciplinary counsel, Linda Gosnell, who investigated the state’s fen-phen scandal and won the disbarment of several lawyers, has been ousted from her position.
Kentucky Bar Association President Margaret Keane said Monday night that “Gosnell is no longer employed by the bar association.”
Keane declined to elaborate.
Asked why she was forced out, Gosnell said in a phone interview Monday night: “You’ll have to ask the KBA. I’m not going to talk to you.”
Retired Judge Stan Billingsley reported Monday on his blog LawReader that Gosnell was fired.
He speculated that that she may have been ousted because of information revealed in the fen-phen case after a federal judge ordered an accounting of money collected from disbarred lawyers William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr.
Thanks to Rick Underwood for advising us of this situation. (Mike Frisch)
The Florida Supreme Court has ordered the removal from office of a Circuit Judge.
The misconduct involved a number of matters. One was an illegal $30,000 loan from his mother for his campaign for judicial office.The court found that he had gained office through illegal means.
After he was elected, he engaged in the unauthorized practice of law by representing his mother in a foreclosure action.
Another violation related to his interactions with a female subordinate employee. The judge was a cancer survivor. The employee had a child with cancer. He "injected himself" into the employee and her son's life in an unwanted and somewhat obsessive manner. His interest was not sexual but apparently a product of his loneliness.
A panel rejected additional charges of misconduct involving inappropriate remarks and unwanted physical contact with female subordinate employees.
The court declined to address the judge's Constitutional challenges to other charges relating to the conduct of his campaign. (Mike Frisch)
An attorney who attempted to smuggle drugs into a correctional facility has been suspended for two years by the Pennsylvania Supreme Court. The screening procedures at the facility found heroin and Xanax.
The facility uses an ion scan for visitors. As the scan was about to be done for a third time, a bag containing drugs was found at the attorney's feet. He denied that it came from him.
The attorney was attempting to deliver the drugs to a person he falsely identified as his client. A search of his car revealed additional drugs.
He was arrested and pled guilty to possession with intent to deliver a controlled substance. He was sentenced to 18-36 months and currently resides at Correctional Institute Laurel Highlands.
Presumably any visitors will show better judgment than the attorney displayed.
The suspension was imposed effective as of the date of an earlier interim suspension. The attorney consented to the sanction. One mitigating factor was that the attorney's own addiction was a cause of the misconduct. (Mike Frisch)
Tuesday, November 22, 2011
A recent opinion of the Florida Judicial Ethics Advisory Committee holds:
May a judge permit criminal arraignments to be broadcast nationally on television by a regular network?
May a judge be paid pursuant to a contract with a television network for a teaching segment which would involve explaining the law, sentencing choices, and interviewing different “players” in the court system?
The committee's conclusion:
...the proposed activity is proscribed by Canon 3(B)(9) which provides in part as follows:
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.
This Canon prohibits public comment, not only on the inquiring judge’s pending or impending cases, but on pending or impending cases in any court, if the comment might reasonably be expected to affect its outcome or impair its fairness. Teaching segments, such as suggested by the judge, may reasonably be expected to impair the fairness of the tribunal. Therefore, this Committee recommends that no judge should make public comments on pending or impending cases.
The Delaware Supreme Court has affirmed a Court of Chancery decision to deny a litigant access to a report prepared by outside counsel (Covington & Burling) for Hewlett-Packard Company in connection with an internal investigation into allegations of sexual harassment by former Chief Executive Officer Mark Hurd.
The allegations at issue came from attorney Gloria Allred on behalf of a client named Jodie Fisher, a former HP contractor. Hurd reached a confidential settlement and departed HP.
The company was then the subject of shareholder derivitave actions. The plaintiff here had filed an action seeking access to HP's books and records.
The court concluded that the plaintiff had failed to show that the report "is essential to his stated purpose, which is to investigate possible corporate wrongdoing." (Mike Frisch)
The Maryland Court of Appeals has reversed a conviction for sexual assault and assault because the court gave a so-called "anti-CSI effect" jury instruction.
The court was unpersuaded that the TV show has created a phenonenon that permits the use of such an instruction absent some need to cure "pre-existing overreaching by the defense...." The instruction "is fraught with potential for reversible error" and may diminish the requirement of proof beyond a reasonable doubt.
The instruction advises a jury that "there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case."
The court may revisit the issue if scholarly research establishes that there is a CSI effect. (Mike Frisch)
An attorney who had petitioned for reinstatement in South Carolina got disbarred for the effort.
The attorney had failed to advise South Carolina authorities of his disbarment in North Carolina:
Since we disbar petitioner/respondent from the practice of law pursuant to the reciprocal disciplinary provisions of Rule 29, RLDE, we deny his Petition for Reinstatement. Further, the Court is extremely troubled by petitioner/respondent's failure to inform the Committee that he had been disbarred by the North Carolina State Bar on September 9, 2010, one month before the hearing on his Petition for Reinstatement. While we recognize Rule 33, RLDE, did not specifically require petitioner/respondent to inform the Committee of the North Carolina Order of Discipline, petitioner/respondent affirmatively stated to the Committee "I haven't had any prior disciplinary orders except for this one [the Court's order suspending him from the practice of law in South Carolina]." This was patently untrue. Further, although he responded to numerous questions posed by the Committee about the bank fraud underlying his misprision of felony conviction, petitioner/respondent never advised the Committee that he had been disbarred in North Carolina as a result of his complicity in the bank fraud. Petitioner/respondent's statement and omission indicate a lack of honesty, candor, and integrity which, alone, constitute a basis for denying his Petition for Reinstatement...
The South Carolina Supreme Court has imposed a two year suspension retroactive to a previously imposed interim suspension.
The court apparently did not find a violation in the following alleged conflict of interest:
Respondent's parents divorced in 1981. Sometime after the divorce, a dispute arose as to whether Respondent's father had complied with the division of certain real property. Respondent initiated an action in which he represented his mother against his father. On January 6, 1997, the family court issued an order that required the father to transfer certain property to Respondent's mother. When the father did not comply, Respondent filed a Petition for a Rule to Show Cause in April 2001 to determine whether his father should be held in contempt for failing to deed the property as required by the order.
During the time that Respondent represented his mother adverse to his father, Respondent also represented his father in a legal malpractice action. Respondent's representation of his father began in 1999 and continued through the conclusion of the appeal in June of 2003. Additionally, an opinion by the Court of Appeals lists Respondent as the attorney for his mother and father in an appeal during this same time period.
Respondent testified both parents were aware of his dual representation and he had advised his father that the mother's case had priority. There is no evidence in the record to refute Respondent's testimony.
The court found that the attorney had created false evidence in a civil case and rejected his arguments concerning a number of alleged procedural irregularities in the bar process. (Mike Frisch)