Thursday, May 31, 2012
The New York Court of Appeals has held that a plaintiff suing for legal malpractice in a criminal case may not recover non-pecuniary damages.
The court found no "compelling reason" for a contrary result, which would have "negative, and at worst, devastating consequences for the criminal justice system" by discouraging attorneys from undertaking court-appointed criminal defense work. (Mike Frisch)
A report on a case involving a suspension from the Utah Bar Journal:
On January 31, 2012, the Honorable Samuel D. McVey, Fourth Judicial District Court, entered an Order of Discipline: Suspension suspending Allen F. Thomason from the practice of law for a period of one year for violation of Rules 3.3(a) and (d) (Candor Toward the Tribunal), 4.4(a) (Respect for Rights of Third Persons), 8.4(b), (c), (d), and (e) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
The Complainant and his wife, had been having domestic problems and were seeking a divorce. Mr. Thomason befriended the wife and attempted to assist her with a DUI. Mr. Thomason went to the marital home on one occasion and had words with the husband. After a domestic dispute in which police were called and the wife was told to leave the home, Mr. Thomason went to the marital home on behalf of the wife and removed the locks from the doors. The husband went to the home to see if his wife was gone and saw the locks had been removed. He went into the home and encountered Mr. Thomason. After the two had words again, the husband left the home and called the police. The husband then asked his mother if she would go to the marital home and retrieve his camcorder and camera. When the mother went to the marital home to pick up the camera, Mr. Thomason confronted her and blocked her from leaving the room. Mr. Thomason told her that he was a judge and she was under arrest. After several minutes, the mother put down the camcorder and was allowed to leave the room. When the officers arrived Mr. Thomason refused to wait near the curb as instructed by the police. Mr. Thomason declared several times that the responding police officers were "under arrest." Mr. Thomason made threats against the officers, claiming that he was a judge, and held more arrest authority than the officers. Mr. Thomason was cited for "Interfering w/Legal Arrest", a violation of Utah Code Section 76-8-305, for his interference with the officers' investigation. The Provo City Justice Court held a trial where Mr. Thomason was found guilty of interfering with a legal arrest. Mr. Thomason appealed the conviction and later entered into a Diversion. After the incident at the marital home, Mr. Thomason filed an Ex Parte Stalking Injunction against the husband, claiming that he had been assaulted when the evidence did not support this. The Ex Parte Stalking Injunction obtained by Mr. Thomason caused harm to the husband. Mr. Thomason exhibited a lack of candor in his filings with the court. Mr. Thomason attempted to delay the stalking injunction hearing so that the husband would not be able to participate in hunting season. Mr. Thomason also sent several e-mails to the husband's divorce attorney that contained numerous misrepresentations. Mr. Thomason threatened to file Judicial Conduct complaints against the police officers when he had no grounds to do so. Mr. Thomason threatened to file civil suits against the Complainants unless they dropped their Bar complaint. Mr. Thomason made unfounded accusations of unethical conduct against the husband's attorney.
Wednesday, May 30, 2012
The Illinois Review Board has proposed a suspension of 30 days of an attorney who failed to disclose her financial interest in real estate settlements:
The relevant facts are not in dispute. [the attorney] was admitted to practice law in Illinois in 2001. In 2005, she and attorney Dortricia Penn opened the Law Offices of Penn & Scott. Respondent concentrated her practice on civil matters, including residential real estate transactions. Both Respondent and Penn were title agents for Ticor Title.
Prior to April 2008, when counsel for the Administrator inquired about her compliance with the Title Insurance Act, 215 ILCS 155/18, Respondent was not aware that, when acting as both attorney and title agent, the Title Insurance Act required her to disclose to her clients in writing that she had a financial interest in their real estate transactions and to obtain her clients' written consent. Respondent admitted that she did not provide written disclosures or obtain written consent in six transactions when she acted as attorney and title agent. Her clients in those transactions were Karen Van, Farrah Bledsoe-Whitlow, Cousandra Armstrong, Percy Wicks, Nathaniel Maxwell, and Talisa Jackson. Respondent received a total of $6,981 in title fees from the six transactions.
As to sanction:
We have considered in mitigation that Respondent has no prior discipline and that her misconduct did not result from an improper motive but from a lack of awareness of her professional responsibilities. That said, we consider in aggravation Respondent's failure to recognize that her conduct was improper. The Hearing Board found that Respondent did not seem to understand the rules pertaining to conflicts of interest or the reasons for those rules. She maintained that there was nothing wrong with her conduct. Respondent's failure to recognize obvious conflicts of interest is cause for concern and convinces us that a suspension is necessary to protect the public and ensure that Respondent is aware of and understands her ethical responsibilities to her clients.
The Virginia State Bar Disciplinary Board has accepted an agreed disposition and imposed a 3 1/2 year suspension of an attorney-advisor with the federal Bureau of Prisons. He was advanced to the position of Senior Litigation Counsel in 2006.
The attorney was admitted in Virginia in 1988 and is not licensed in any other jurisdiction. He was suspended for failure to pay bar dues on five separate occasions for a total of 128 months.
The suspension issue came to light in 2008 and was reported to the Department of Justice's Office of Professional Responsibility ("OPR"). The attorney admitted that he made a series of six false statements to OPR in a March 2007 interview.
OPR concluded that the attorney violated his obligation to maintain an active law license as a condition of employment. OPR further found he violated his duty of candor. DOJ thereafter suspended him for two 25-day increments --a total of 50 days.
This misconduct drew a more severe internal DOJ sanction than the misconduct in the Ted Stevens prosecution, which takes over 600 pages for OPR to describe.
Does that say anything about the nature of internal regulation? Clearly, the Virginia bar authorities took the matter far more seriously than did OPR. (Mike Frisch)
The panel report addresses possible campaign violations by a judicial candidate.
One count alleges that the candidate's former spouse loaned her campaign $25,000. A second count contends that the judge used her bailiff to solicit campaign contributions. A third count involves her campaign materials.
The panel report deals with the interpretation of the phrase "domestic partner." Domestic partners may make loans to campaigns for judicial office. The panel found that the judge and her ex-husband have a "close friendship" but do not live together or have a sexual relationship. Thus
...the definitions of domestic partners and the common understanding of the term can be summarized as two unmarried individuals who live together in a romantic, marital type relationship and who either choose to, or unable to, be legally married.
The panel rejected the charges involving the bailiff and requested that the matter be expedited "as the campaign is ongoing." (Mike Frisch)
Tuesday, May 29, 2012
The Michigan Attorney Discipline Board has affirmed a hearing panel's revocation of the license of a special legal consultant.
Under Michigan's rules regulating practice, a "special legel consultant" may engage in limited practice on matters of a foreign jurisdiction where the consultant is licensed. The attorney here was permitted to offer professional advice on matters involving interpretation of Nigerian law.
He entered his appearance as counsel in a civil matter involving allegations of negligence and breach of contract. The matter did not involve issues of Nigerian law.
The board noted that he also had a website that advertised his availability in a number of areas of domestic law. (MIke Frisch)
The Idaho Supreme Court has affirmed the grant of a new trial to an attorney and his girlfriend who were found by special jury verdict to have breached fiduciary duties to a former client by purchasing half of his stock in a closely-held corporation for less than fair market value.
The stock was for a resort property on the shore of Lake Pend Orielle and was held in equal shares by two couples. The stock of one couple was purchased by a man with the wonderful name of Jerry Berry.
The attorney, who practiced bankruptcy law, visited the resort and made Mr. Berry's acquaintance. Berry consulted him about a possible bankruptcy but did not pursue that option. Later, Berry wished to purchase the other 50% of the stock, with money lent by the attorney in part and his girlfriend in part. The attorney thought he would be repaid on sale of the resort, but the sale did not happen.
Berry was diagnosed with pancreatic cancer, triggering events that led Berry to transfer the stock to the attorney and girlfriend to repay the obligation and the attorney to take control of the corporation. Berry died in November 2006.
The attorney then had the locks to the resort changed and did not give a key to Mrs. Berry. He approached her the day after the memorial service with a proposed special resolution and shortly thereafter was elected corporation president by 2-1 majority vote of himself and the girlfriend, who was elected treasurer by the same margin.
As they say, litigation followed, initiated by Berry's widow.
The court here found that the trial court's instructions on the attorney-client relationship were "clearly inadequate." The district court "did not err in holding that there was insufficient evidence to sustain the verdict that when [the attorney] purchased the stock he breached his fiduciary duty to Mr. Berry arising from an attorney-client relationship."
The court noted a dearth of evidence of an attorney-client relationship between Berry and the attorney after the 2000- 2001 consultation. The stock purchase took place in 2006.
The court and a concurring opinion were unimpressed by the attorney's "shabby" treatment of Mrs. Berry, which may have contributed to the jury's verdict.
Justice Jones, concurring, opines that while plaintiff's case raised "some smoke, it did not produce the actual fire necessary to support the verdict" against the attorney and the girlfriend. (Mike Frisch)
The North Carolina State Bar has filed a complaint alleging ethics violations by the former Durham County District Attorney.
The complaint charges that the DA directed an investigator to make misleading statements to prison authorities in order to obtain visitation records of three inmates and engaged in ex parte contacts with a judge to obtain the records. The complaint alleges that the DA sought confidential information that she was not entitled to.
The complaint further alleges that the DA filed a complaint against a judge and "made repeated statements about the honesty, integrity and fairness of [the judge]." The complaint contends that the DA falsely or recklessly called the judge corrupt.
ABCNews had this report.
This isn't the first time the Durham district attorney's office has been embroiled in controversy in recent years. Cline replaced Mike Nifong, who resigned in disgrace after prosecuting three Duke University lacrosse players falsely accused of rape. Nifong was later disbarred.
Governor Beverly Perdue named a retired Superior Court Judge A. Leon Stanback, Jr. as the interim Durham DA earlier this year.
Cline has appealed her removal and she continues her fight to gain access to emails belonging to Judge Hudson. There cannot be a special election to replace her until she has exhausted her appeals.
In a series of disciplinary matters involving an attorney who "was struggling with substance abuse," the Georgia Supreme Court was sharply critical of the "piecemeal adjudication of [the two] disciplinary matters [that] not only wastes this Court's resources at a time when those resources are already significantly strained, but also may result in the imposition of disciplinary penalties that ill fit the totality of an attorney's misconduct, and should be avoided in the future."
The court noted that the special master found that the attorney "is in a prolonged recovery from the illness of alcohol and substance abuse which led to his wrongful conduct" and accepted the recommendation for a public reprimand with terms.
The court noted that the attorney's recovery and restitution to harmed clients was a "very special circumstance" and ordered that the attorney participate the the State Bar's lawyer assistance program.
The court had previously rejected a petition for voluntary discipline. (Mike Frisch)
The Georgia Supreme Court has imposed a review panel reprimand of an attorney who represented a client who "[b]ecause his profession required extensive travel, [the attorney] had some difficulty reaching the client to review and sign documents connected to the case."
As a result of the difficulty, the attorney twice signed the client's name to documents. The documents he signed "were identical in substance to those actually signed by the client..."
The relatively lenient sanction notes that the special master found that the attorney had no prior disciplinary history and made efforts to correct his misrepresentation before the original signed documents were filed. (Mike Frisch)
Monday, May 28, 2012
The District Attorney for Albany County has been censured by the New York Appellate Division for the Fourth Judicial Department for comments about a judge made in an electronic mail message to a news reporter.
The DA was prosecuting alleged illegal sales of prescription drugs by individuals operating out of a Florida pharmacy. After the judge dismissed charges and disqualified the DA's office, the offending e-mail described the judge's action as a "get out of jail free" card and called the judge's decision a "dangerous loophole."
The court held that the first statement was objectively false and the second reckless and misleading, amounting to conduct prejudicial to the administration of justice.
Saturday, May 26, 2012
The Indiana Supreme Court has publicly reprimanded an attorney for threatening a bar complaint against another lawyer.
The attorney ("SAB") had represented a couple who purported to be husband and wife. SAB settled a trade defamation claim for $10,000 and applied the proceeds to a debt owed to him by the husband. SAB later represented the husband in a divorce against the wife. The reprimanded attorney represented the wife.
The reprimanded attorney sent a letter to SAB raising the possibility of ethical violations and offering him a "window of opportunity" to make a settlement offer before filing a bar complaint and an action in state court. (Mike Frisch)
Friday, May 25, 2012
The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to recuse a trial judge:
Plaintiff filed the instant recusal motion after the court dismissed the complaint. Thus, the trial court lacked the authority to grant the motion absent proof of actual prejudice or biased actions, rather than the mere appearance of impropriety, and there is no basis for mandatory disqualification or recusal. The trial court's generalized comments comparing judicial salaries to first year attorney salaries as recently reported in the news, coupled with an attendant joke that he might have to seek employment with defendants' counsel's law firm, stand in stark contrast to the facts in Caperton v A.T. Massey Coal Co., Inc. (556 US 868 ), relied upon by plaintiff, in which the president and chief executive officer of a corporation appearing as a defendant before the judge against whom recusal was sought had contributed some $3 million to his election campaign and at issue was a $50 million judgment against the defendant corporation. Here, there is no basis to conclude that actual bias or prejudice existed. No evidence was offered to show that the trial judge had any relationship with defendants' counsel outside of the courtroom, that the trial judge was seeking, or intended to seek employment with the law firm, or that the court was in anyway biased in favor of defendants.
Moreover, where, as here, a party inexplicably withholds an allegation of bias until after the court adversely rules against it, denial of the recusal motion is generally warranted and the courts' discretion in so ruling will not be disturbed. Plaintiff's claims of bias are undermined by his continued participation in the court proceedings for nearly a year after the disputed comments were made, without complaint. Furthermore, the dismissal of plaintiff's "amended" action was soundly based upon a prior federal district Court decision which this Court previously found disposed of plaintiff's fundamental arguments. (citations omitted)
The Kansas Supreme Court ordered a suspension of an attorney of two years, nunc pro tunc to a March 2010 interim suspension, for a false statement made about a judge who was mediating the attorney's own divorce.
The attorney was engaged in a bitter contested divorce. She also was suffering from significant health and emotional issues, having been hospitalized six times for heart trouble and having a pacemaker installed.
She claimed that the judge/ mediator used profanity by stating that she was 'wasting his fucking time," made comments about her panties and asked who she was "boinking." The judge admitted that he had used profanity, although in the context of repeating the claims of the parties.
The false statement was that the judge appeared to be masturbating under the bench during the proceedings.
The attorney had filed a judicial complaint and a civil lawsuit that made this allegation.
The court noted that the instances of false allegations were not isolated ones and had been reported in the media.
Pitch News had this report on the judge's response to the attorney's complaint (Mike Frisch)
The Iowa Supreme Court rejected a proposed suspension of at least six months and imposed a public reprimand on an attorney who had a substantial rcord of prior discipline.
The attorney represented a client in a forclosure action. He arranged to purchase the property from the client, agreeing to pay off the mortgage and sell the property back to the client after she obtained financing for the purchase.
The court found that the attorney did not violate the "business transactions with client" rule because he terminated the attorney-client relationship prior to the deal. He did, however, violate the rule prohibiting adversity with a former client in a substantially related matter. He also had failed to timely cooperate with the bar investigation.
The court rejected the sanction proposed by the Attorney Disciplinary Board because the misconduct took place in the time period prior to its 2007 order of a 30 day suspension. (Mike Frisch)
An attorney who neglected a client matter, failed to cooperate with the ensuing bar investigation and back-dated correspondence to the Office of Lawyer Regulation to make it appear that she had timely cooperated has been suspended for 60 days by the Wisconsin Supreme Court:
After careful consideration of the report and recommendation, the record in this matter, and the written statements of the parties, we accept the referee's recommendation regarding suspension, restitution, and costs. The misconduct at issue here was serious, and Attorney...offers no legitimate excuse for her failure to diligently represent her clients and her failure to provide them with information about their cases, fees, and expenses in spite of their numerous requests that she do so. Nor does she offer a legitimate excuse for her failure to fully and honestly cooperate with the OLR's investigation into her conduct. Given the length of time over which the misconduct occurred and the number of instances of misconduct involved, Attorney...'s excuses for her behavior ring hollow. The fact that, as the referee noted, Attorney...expresses little remorse for her misconduct suggests that Attorney...may not appreciate the seriousness of her misconduct. A period of suspension is necessary in this case to impress upon Attorney...the seriousness of her professional misconduct and to protect the public from similar misconduct in the future.
It being Wisconsin, there is a dissent (here, from Chief Justice Abrahamson):
As a result of the per curiam opinion, Attorney...will be able to resume the practice of law in Wisconsin with the passage of 60 days. She will not have to make any showing that she has taken steps to avoid similar misconduct in the future.
Any discipline imposed on Attorney...should, in my opinion, require her to demonstrate to this court, before she resumes practice, that she has made efforts to remedy the causes of her repeated failures to serve her clients. Attorney...must demonstrate that she is competent to practice law.
For the reasons set forth, I dissent. I conclude that a 60-day period of discipline, with automatic re-admission to the practice of law, is not adequate to protect the public in the present case.
The Iowa State Public Defender refused to pay a court-appointed guardian ad litem for 6.3 hours of travel time to attend court proceedings. The travel was necessary after a change of venue that had resulted from the death of the ward's parent.
The Iowa Court of Appeals rejected the Public Defender's contention that it was not obligated to pay the guardian and ordered the $378 payment. (Mike Frisch)
Thursday, May 24, 2012
The West Virginia Supreme Court has held that a condition of parole that prohibits the parolee from being in the presence of or associating with felons, including her own husband, was within the power of the court to order.
The parolee had contended that the provision infringed on her rights of marriage.
The court here noted that the parolee had engaged in her criminal activity (manufacture of methamphetamine) along with her husband and that her use of the drug had been fueled by insecurities resulting from her perception of her husband's views about her weight. (Mike Frisch)
WorldCom settled a claim brought by the State of Mississippi with respect to delinquent tax liability for 100 million dollars. The company also paid 4.2 million to a private charity and 42.2 million to the private law firm that had represented the State. On request from the State Auditor, the private charity turned the money over to the State; the law firm refused to do so.
The Mississippi Supreme Court reversed the grant of summary judgment to the firm firm, holding that, when the Attorney General pays special assistants, they must be paid from the AG's contingency fund or from other funds approved by the AG's office. Further, public funds (such as the court holds these payments were) must be paid into the state reasury.
Neither requirement was met in the case. (Mike Frisch)
The Minnesota Supreme Court has reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.
The judge's retention was disclosed to the defendant during the course of the trial. The defendant sought recusal but the judge denied his motion.
The court held that the evidence of guilt was sufficient. However, a "reasonable examiner" would question the judge's impartiality under the circumstances. (Mike Frisch)