Tuesday, January 31, 2012

Fit To Practice

The Oklahoma Supreme Court has reinstated an attorney who had practiced exclusively in the criminal law area. The petitioner had resigned while facing disciplinary charges.

The court described the circumstances that led to suspension:

...In the hearing before the Trial Panel, [petitioner] testified that prior to her resignation she was working as a solo practitioner handling criminal cases. When [she] passed the bar exam, she was working for Paul Brunton and had been employed with his firm about eleven years, first as a secretary, then as a legal intern and upon passage of the bar as an attorney. Within months of her being sworn in, Mr. Brunton was appointed as Federal Defender by the 10th Circuit Court of Appeals. When this happened, she took over Brunton's practice, assuming not only his client list, but also the firm's monthly lease of $1300.

Though [petitioner] was well versed in criminal law, she had no practical experience related to managing the business aspect of a law firm.[She] testified that she accepted all court-appointment requests and never submitted vouchers to be reimbursed for that time. "...I just kind of felt like that was my contribution or my pro bono." [She] also testified that she often conducted her jail visits at night, after her children were in bed, in an attempt to squeeze more hours into each day.

Before long, [she] had taken on too many clients overextending herself both emotionally and physically. It appears that she set extremely high standards, pushing herself far beyond what any one person could handle. [She] reached an acute level of stress by 2004 when she began receiving notice of bar complaints. Rather than addressing the issues, [she] testified that she put the complaints in a drawer and refused to deal with them.

Yet, [she] continued to push herself. Just a few weeks before tendering her resignation, she drove to Denver to present oral argument in a case reassigned to her by the Tenth Circuit.

In her testimony, [she] discussed the reasons she waited more than five years to file for reinstatement, saying that she wanted to make sure she was ready and that she could handle herself being able to say no to clients. It is apparent [she] realizes that agreeing to take on more than she could manage was a dominant factor in the events precipitating her resignation. [Petitioner] testified that she has taken steps to avoid placing herself in similar circumstances by not engaging in criminal defense work and managing her time.

The court concluded that the criteria for reinstatement were satisfied. (Mike Frisch)

January 31, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: Don't Use Trust Funds As Collateral For Gambling Debts

The New Jersey Supreme Court agreed with its Disciplinary Review Board that an attorney engaged in an instance of knowing misappropriation and ordered disbarment. The attorney also had used his trust account funds "as a source of collateral to cover gambling debts."

The attorney used a trust check to cover a casino "gambling marker" of over $20,000.

He was admitted to practice in 2002 and had defaulted on the bar charges. (Mike Frisch)

January 31, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Judicial Immunity For Attorneys Conducting Judicial Sale

The Maryland Court of Appeals has held that two court-appointed trustees employed by a law firm who conducted the judicial sale of a condominium are not entitled to judicial immunity on claims of fraud and breach of fiduciary duties arising from the sale.

The trustees and the law firm (also sued on a theory of vicarious liability) are not considered to be judicial officers protected by immunity. (Mike Frisch)

January 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2012

Not Braveheart

The Indiana Supreme Court has ordered the suspension of an attorney convicted of felony obstruction of justice, possession of child pornography and voyeurism.

The Evansville Courier Journal had this earlier report:

[William] Wallace, 58, was indicted in June 2010 shortly after a former client of Wallace claimed the attorney videotaped sexual encounters she had with him without her knowledge. She said he suggested that he would forgive legal fees she owed him in exchange for sex. The woman reported that she only learned about the recordings after Wallace allegedly showed them to her boyfriend.

During an April 19, 2010, search of Wallace's house in Princeton, he tried to flee from the house to his garage with various DVDs and an external computer hard drive in his pants. A search of Wallace's computers uncovered child pornography. Police also found recordings of Wallace and the woman having sex.

The suspension was imposed pending final discipline for the convictions.

The Weekly Vice reported that he had run for the position of county prosecutor. (Mike Frisch)

January 30, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Weisselberg and Li on the White Collar Defense Bar in BigLaw and How it Has Changed

Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

[Alan Childress]

January 30, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society, Law Firms | Permalink | Comments (0) | TrackBack (0)

Expressly Prohibited By Law

The New Jersey Supreme Court has rejected a recommendation from its Disciplinary Review Board to dismiss all charges against an attorney who conducted a series of condo sales for a seller. The court imposed a reprimand.

The misconduct related to an increase in the state realty transfer fees ("RTF"). In 12 settlements, there was a "forced shifting of the RTF obligation from the seller to the buyers [that] involved [the attorney's] preparation of a written instrument containing terms that he knew were expressly prohibited by law." The court found the misconduct and imposed discipline based on its independent review of the record.

The attorney served as an officer of the seller, which was a retirement community.(Mike Frisch)

January 30, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2012

Gallagher on the IP Bar, its Practices, and the Effect on Real Copyright and Trademark Law

You may not catch it from the title, but William T. Gallagher's (Golden Gate U. Law) new paper posted to SSRN is firmly about the legal profession, the bar, and the practice of IP law. Using an empirical/interviewing methodology, Gallagher explores the construction of copyright/trademark law through day-to-day practice, cease and desist letters, and the stuff that never makes it to courts. A teacher of both Professional Responsibility/lawyer regulation as well as IP law, he has spent years collecting the data for this revealing study. His abstract:

    In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete precisely because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in daily life. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. Most IP scholarship is primarily doctrinal, focusing on published appellate cases. Even the growing empirical scholarship on IP focuses largely on published or, at least, filed cases. As in every other area of civil justice, however, most IP disputes do not result in litigation, and most litigation settles well before trial. Certainly, published appellate decisions and even filed cases represent only a small percentage of IP disputes. Thus, in order to more fully understand whether IP rights affect competition, chill free speech, diminish the public domain, or impede creativity, it is necessary to explore how IP claims are made and resolved in private negotiation rather than in litigation, which is the focus of this Article. It presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice.

[Alan Childress]

January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Hatfield on the History of Tax Lawyer Ethics

Michael Hatfield of Texas Tech has published to SSRN his study of the tax legal profession, in a historical context: "Legal Ethics and Federal Taxes, 1945-1965:  Patriotism, Duties and Advice." Its abstract:

Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.

[Alan Childress]

January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Ethics, Law & Business | Permalink | Comments (0) | TrackBack (0)

Saturday, January 28, 2012

High Profile Maryland Disbarment

The Maryland Court of Appeals has ordered the disbarment of former Prince George's County Executive Jack Johnson.

The Baltimore Sun reported:'

Former Prince George's County Executive Jack Johnson was sentenced...to more than seven years in federal prison after admitting to a wide-ranging pattern of corruption that permeated virtually every level of county government from health to housing and law enforcement to liquor laws.

Johnson, a 62-year-old Democrat, was arrested on extortion, bribery and evidence tampering charges in November 2010 while serving out the final weeks of his eight years as the leader of Maryland's second-most populous county.

(Mike Frisch)

January 28, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 26, 2012

Tales From The Gulag

The Iowa Supreme Court has links to a number of documents relating to proposals to revise Iowa's attorney advertising rules. The most recent documents consist of 47 pages of comments on the proposed rules.

My friend Norman Bastemeyer, the former Administrator to the Iowa Supreme Court Board of Professional Ethics, used to refer to Iowa as the "Advertising Gulag"because it has the most restrictive (and likely unconstitutional) rules of any jurisdiction. Is that about to change? (Mike Frisch)

January 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Theories Of Relativity

The Florida Judicial Ethics Advisory Committee has recently opined:


Whether a county judge whose child works in the state attorney’s office in the same county is automatically disqualified in all criminal cases?

ANSWER: No, but the parties should be informed that the child works for the state attorney.


The inquiring county judge is assigned to a trial division and routinely presides over felony and misdemeanor jury trials.

The inquiring judge’s child will soon graduate from law school and seek employment in the same county with the state attorney’s office.  The inquiring judge acknowledges that “[the child] could not and would not handle any cases assigned to my division.” But the inquiring judge asks whether this family relationship would disqualify the inquiring judge from presiding over any and all criminal cases. 


A minority of the Committee agrees that disqualification is not required solely because the child of a judge is employed by the state attorney’s office but does not agree that a bright line rule requiring disclosure is necessary. It would be more appropriate to advise the judge   that the judge should disclose the judge’s relationship if the judge believes that the parties or their  lawyers may consider the circumstances of the employment relevant to the issue of disqualification. This is consistent with the Commentary to Canon 3 E (1). The judge should be aware of any unique circumstance that may be relevant to the issue of disqualification. This Committee has just opined that the mere fact of employment, without more, is not sufficient for disqualification and, therefore, may not be relevant to the issue.

(Mike Frisch)

January 26, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Misrepresentation For Unkept Promises To Cooperate

An attorney who had previously been reprimanded, censured and suspended for three months has been suspended for one year and until further court order by the New Jersey Supreme Court.

The attorney engaged in serious neglect and related violations in two matters. He also failed to cooperate in the disciplinary proceedings. The Disciplinary Review Board declined to find that his unkept promises to cooperate amounted to false statements, concluding that he likely intended to cooperate but did not follow through.

The suspension was imposed consecutively to an interim suspension. (Mike Frisch)

January 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Misconduct Motivated By Desire To Visit Mother

The New Jersey Disciplinary Review Board has imposed a reprimand of an attorney who had forged the name of an attorney on the addendum to a real estate contract. The disciplined attorney represented the buyers; the forged name was that of the lawyer for the sellers.

The motive?

The attorney wanted "to insure that his travel plans to Korea to visit his mother were not interrupted and to accommodate the buyers." (Mike Frisch)

January 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Latex Allergy Must Be Accommodated By Preschool

In a 5-2 decision, the Maryland Court of Appeals reversed the Court of Special Appeals and found that a parent who suffered from an allergy to latex was discriminated against by her child's preschool for its failure to accommodate her condition by refusing to use non-latex products in its diaper changing of the child. The school responded by asking her to withdraw the child. The court held that the condition was a handicap that the school had not reasonably accommodated.

The dissent agrees that parenting is a "major life activity" but questions the "reasonable accommodation" analysis of the majority. The dissent also suggests that the court majority has failed to consider the potential broad impact of this decision. (Mike Frisch)

January 26, 2012 in Law & Society | Permalink | TrackBack (0)

Indefinite Suspension For Second Disciplinary Offense

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today imposed an indefinite suspension against the law license of [a] Cincinnati attorney...for multiple violations of the Rules of Professional Conduct.

In a 7-0 per curiam decision, The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [he] had commingled client funds in his possession with his own funds, overdrew and made other improper use of his client trust account, neglected a legal matter entrusted to him by a client and failed to cooperate with disciplinary authorities during the investigation of his misconduct. Because [he] failed to respond to inquiries from the Office of Disciplinary Counsel regarding his conduct or to appear for scheduled depositions, the disciplinary board reviewed  the complaint against him through default proceedings.

In imposing an indefinite suspension as the appropriate sanction, the Court cited the aggravating factor that [his] license was previously suspended in 2007 for cocaine use and related criminal charges, and noted that he pleaded guilty to a misdemeanor charge of possession of drug paraphernalia in April 2011 and was sentenced to two years of community control.

The Court specified that any future reinstatement of [his] law license will be conditioned on his compliance with at least a two-year substance abuse recovery contract with the Ohio Lawyers Assistance Program (OLAP) and any OLAP treatment recommendations, compliance with the terms of his community control, and completion of continuing legal education course work relating to client trust accounts.

The opinion is linked here. (MIke Frisch)

January 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

I Love D.C.

Readers of this blog may recall my advocacy in favor of agreed, i.e., stipulated dispositions in the District of Columbia bar disciplinary system. Today the D.C. Court of Appeals approved four such proposed dispositions. It's a great day to be a member of the D.C. Bar.

Two of the cases involved petty theft matters.

In In re Nakell, the attorney stole two books from a North Carolina bookstore in the 1990s. The disciplinary case in North Carolina resulted in a finding that he had not engaged in dishonesty for personal gain (perhaps the books were part of a quest for self-growth?). He concealed the books in a newspaper and relinquished them when confronted. The court approved a stayed six-month suspension and probation for three years.

In re Royer involved the failure to pay for a $19 cab ride. After a remand to explore possible alcoholism, the court approved a suspension of 30 days, which the attorney has already fully served.

In In re Beane, the court approved the summary reinstatement of a suspended attorney. In In re Mance, the court approved a six-month suspension with fitness of an attorney with a prior disciplinary record for neglect and related offenses.

The opinions may be found at this link.

A great day! (Mike Frisch)

January 26, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

Sit Down You're Rocking The Boat

An attorney has been publicly censured by the Tennessee Board of Professional Responsibility for a direct criminal contempt in the Jefferson County General Sessions Court. He "interrupted court proceedings, became argumentative with the presiding judge, and failed to take his seat when ordered to do so."

The censure recites that the attorney disrupted a tribunal and engaged in conduct prejudicial to the administration of justice.

The Criminal Court of Appeals affirmed the contempt conviction and provides details of the conduct.

The title to the post is from Guys and Dolls. (Mike Frisch)

January 25, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Non-Refundable Fee Must Be In Writing In Tennessee

The Tennessee Board of Professional Responsibility has issued a public censure who represented a client charged with criminal offenses. The attorney charged a non-refundable fee of $9,000 but did not put the agreement in writing. When the client discharged the attorney and sought a refund of a portion of the fee, the attorney refused.

The board stated that, since January 1, 2011, non-refundable fee agreements must be in writing. (Mike Frisch)

January 25, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Client Too Many, One Insight Too Few

The Minnesota Supreme Court has imposed a public reprimand and probation of two years in a case involving an attorney's simultaneous representation of "a plaintiff and a third-party defendant in the same lawsuit; and...after withdrawing from representation of the third-party defendant client, continu[ing] to represent the plaintiff without obtaining written, informed consent to the former client."

The attorney also did not express remorse for his ethical lapse: "His brief to our court...demonstrates his lack of remorse. [He] not only persists in his assertion that no conflict of interest existed, but also cites as a mitigating factor Client B's 'deceit' and 'withholding material information.' This attempt to deflect blame highlights [his] lack of remorse and insight into his own conduct." (Mike Frisch)

January 25, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2012

Pay The Lawyers Before The Hospital

The Delaware Supreme Court has held that an attorney is entitled to take a contingent fee prior to the execution of a lien for medical expenses.

The law firm represented a client in a personal injury action. The hospital bill was for over $160,000. The client received compensation in an amount under $20,000. The hospital sought to take the full amount as payment. The court found that the common law charging lien of the attorney requires that the fee be paid in preference to the hospital's lien. (Mike Frisch)

January 24, 2012 | Permalink | Comments (0) | TrackBack (0)