Wednesday, October 31, 2012

New York Pro Bono Rule Information Links

The web page of the New York Court of Appeals has posted information concerning the impending pro bono requirements for newly-admitted members.

The posting has links to the necessary forms as well as general information about the rule. (Mike Frisch)

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

Character Letter Helps

The Ohio Supreme Court found that an attorney had violated his trust account responsibilities but that mitigating factors warranted a stayed suspension of one year.

The court cited the attorney's 30 years of discipline-free practice, prompt restitution, full cooperation and good character and reutation in his communbity. There were no overdrafts or other harm to clients.

The court noted that the attorney's practice was limited due to his full time employment as a township administrator.

Further, the president of his largest client "submitted a letter praising [his] character and integrity over the course of their 20-year working relationship and stated that his company intends to continue that relationship despite [his] violations of the Rules of Professional Conduct."

The attorney has corrected his practices "to ensure that he does not repeat his past mistakes." He also watached a webcast that explained proper trust account procedures. (Mike Frisch)

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

Collision Course

From the Ohio Supreme Court web page:

The Supreme Court of Ohio has indefinitely suspended  the  law license of Galloway attorney Mark  J. Squeo for giving false and misleading information to the driver of a car  involved in a collision with a car in which Squeo was a passenger, and for continuing  to practice law while his license was under administrative suspension for  failing to complete required continuing legal education coursework and failing  to comply with state attorney registration requirements. 

In a 7-0 per  curiam opinion announced today, the court adopted findings by the Board of Commissioners  on Grievances & Discipline that Squeo falsely held himself out as a  licensed attorney, and engaged in conduct involving fraud, deceit, dishonesty  or misrepresentation and conduct that reflects adversely on his fitness to  practice law when he gave false information to the other driver at the  scene of a 2009 traffic accident.

The court  also adopted findings by the disciplinary board that despite the continuous  suspension of his law license since 2003,   Squeo engaged in the unlicensed practice of law by identifying himself  as a licensed attorney and filing documents with the Franklin County Recorder  on behalf of two different clients in 2004.

The court  also found that by failing to respond to repeated requests for information from  the Columbus Bar Association, and failing to appear for a scheduled deposition  or for a hearing on the misconduct charges brought against him, Squeo violated  the professional conduct rules that require attorneys to provide information  requested by disciplinary authorities and otherwise cooperate with  investigations of alleged attorney misconduct.

Under the terms of the suspension imposed today,  Squeo will be ineligible to apply for readmission as an attorney until at least  October 2014.

The driver was the attorney's son.

The opinion is linked here. (Mike Frisch)

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

Tuesday, October 30, 2012

Book Review Bad Idea For Judge

A recent opinion from the Florida Judicial Ethics Advisory Committee:


May a judge accept an invitation from a university editorial board member to critique a book written by the lead defense attorney of a well-publicized criminal case, when the defendant in that case remains a party in pending proceedings arising from issues raised in the criminal case?

ANSWER: Yes.  However, given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case, the Committee advises the inquiring judge to decline the invitation.


The inquiring judge was asked by a friend who sits on a university’s editorial board if the judge would consider submitting a critique of a book written by the lead defense attorney of a recent well-publicized criminal case.  The case was heavily tracked by the media, including “gavel to gavel” coverage locally and on the internet during the month-long trial.  The inquiring judge advises that the university editorial board intends to publish the proposed critique in an online journal.  The university editorial board also intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.

     As of the date of this opinion, the counts upon which the defendant was convicted remain pending on appeal.  Also, civil lawsuits arising from issues raised in the criminal case remain pending against the defendant.  The book’s author is not an attorney-of-record in any of those case.

The reasoning:

...the inquiring judge must be mindful of the fact that, once the judge has submitted the proposed critique, the judge has lost control over how the proposed critique is used.  As the inquiring judge advises, the university editorial board intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.   It is possible that the book’s publisher or the criminal defense attorney will use the proposed critique to advance their private interests.  An argument could be made that the judge, recognizing this possibility, indirectly lent the prestige of judicial office to advance the private interests of the book’s publisher or the criminal defense attorney in violation of Canon 2B.  See Fla. JEAC Op. 96-25 (judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would violate Canon 2B because it “would lend judicial prestige to the commercial interests of that station”).

Based on the foregoing, although the Committee recognizes that the inquiring judge could accept the invitation to write the proposed critique, the Committee advises the inquiring judge to decline the invitation given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case.

(Mike Frisch)

October 30, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Baseball Bat Beating Of Client Draws License Annulment

The West Virginia Supreme Court of Appeals has annulled the law license of an attorney convicted of felony unlawful wounding.

The attorney beat a client (Mr. Gump) with a wooden baseball bat and chased after the client with the bat down a residential street, continuing to hit his defenseless victim on the ground. The client suffered "significant injuries."

The court rejected the attorney's offered mitigation suggesting that the client was a drug addict who demanded money from him.

Digital Journal had this report on the criminal case.

In another violent incident, the attorney was convicted of two counts of wanton endangerment. There he had used a propane tank to break the window of a car occupied by his then-wife and her juvenile child.

To complete the picture, the attorney converted funds owed to Mr. Gump's grandfather (also Mr. Gump). (Mike Frisch)

October 30, 2012 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Indigent Counsel Plan Upheld

The New York Court of Appeals has rejected a claim by county bar associations to New York City's  2010 system for providing counsel to indigents in cases where there is a conflict of interest.

The court held that "the City may assign conflicts cases to institutional providers, that its ability to do so is not contingent on the consent of the county bar associations and that the City's proposed indigent defense plan does not run afoul of the County Law or Municipal Home Rule Law."

At issue were two plans for indigent representation that did not include the assent of the bar associations.

Chief Judge Lippman wrote a dissent, joined by two judges:

The City may have very sound reasons for the changes it proposes, but as it goes about altering, perhaps irretrievably, the network of indigent defense service providers that has been in place for some 47 years, it would seem than than ordinarily important to insist upon compliance with the limitations contained in county Law, section 722, among them that bar association consent be obtained as a condition of a City plan purporting to rely on "a plan of a bar association." This is not simply a question of logic and manners. The purpose of the statute is to assure that there will be quality reptresentation for indigent defendants...and toward that end the Legislature has, quite reasonably, required localities to act cooperatively with the bar associations whose members are to be drawn upon for their professional services. If the panels are to be retained and usefully administered as a representational resource, it would be prudent and natural that it would be according to a sustained plan devised not only by the City but also in part by legal professionals concerned first and foremost with the delivery of quality representation. That is, in any event, what the statute requires and what municipal discretion therefore is not appropriately invoked to excuse.

(Mike Frisch)

October 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2012

Close Relationship Interrupted By Gunfire

A Massachusetts attorney has been indefinitely suspended as a result of his conviction of weapons offenses.

During the course of a "heated argument," the attorney "fired a gun in the direction of a woman with whom he had a close relationship."

The attorney was sentenced to three to five years in prison followed by probation. He had been suspended since the incident. The court imposed the suspension as of the date of the interim suspension.

The Salem News had this report. (Mike Frisch)

October 29, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, October 27, 2012

Rebecca Aviel Earns Zacharias Prize

Touro Law Center's Samuel Levine let us know that the recipient of this year's Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism. The award will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at the Palace Cafe on Canal Street.

Get the molten chocolate dessert, Sam! [Alan Childress]

October 27, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

A Dead Issue

The Massachusetts Supreme Judicial Court has remanded with orders to vacate a decision revoking the license of a funeral director and embalmer.

The facts:

After an adjudicatory hearing, the Board of Registration of Funeral Directors and Embalmers (board) issued an order permanently revoking Troy J. Schoeller's licenses to do business in the Commonwealth as a funeral director and embalmer. G.L. c. 112, §§ 61, 84. The disciplinary action arose after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller. Schoeller did not reveal any confidential or private information about any deceased person or bereaved family members whom he had served. Rather, the board found that Schoeller had violated an ethical regulation prohibiting an embalmer from "comment[ing] on the condition of any dead human body entrusted to his or her care," 239 Code Mass. Regs. § 3.13(7) (1998), and that he had used unprofessional language in his descriptions of dead bodies. By doing so, the board concluded, Schoeller had "engaged in gross misconduct and unprofessional conduct which undermines the integrity of the profession." Schoeller filed a petition in the county court, pursuant to G.L. c. 112, § 64, seeking review of the board's order. The single justice reserved and reported the case without decision.

The board's action violated First Amendment protections:

...while there may be circumstances in which the board can appropriately seek to limit the speech rights of licensed funeral directors and proscribing all "undignified" comments, the board has "traveled in the constitutionally unacceptable direction," Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 201 (2005), of banning a substantial amount of protected speech. The board cannot apply § 3.13(7) to restrict such a wide range of speech, nor may it limit that speech by relying on a generalized notion of the integrity of the funeral services profession.

The case is Schoeller v. Board of Registration of Funeral Directors and Embalmers, decided today. (Mike Frisch)

October 26, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Thursday, October 25, 2012

Letter To Prosecutor Violated Defense Attorney's Duty Of Confidentiality

The Illinois Review Board has recommended a six-month suspension of an attorney for misconduct in the course of defending two criminal cases.

In one case, the client had denied any involvement in a murder for which he had been charged. Five days before trial, the client's story underwent a dramatic change and was revealed to the attorney.

The attorney violated his duty of confidentiality by disclosing the new story to the prosecutor:

The next day Respondent faxed a letter to Assistant State's Attorney, Duke Harris. In the letter, Respondent described in detail the shooting scenario that [his client] Mays had disclosed to Respondent. He informed Harris that his client and Shaw went to Spinks' apartment. Spinks opened the door, but when he saw the defendant and Shaw, he tried to close the door. Mays tried to "put his arm through the door to get in." According to the letter "the door hit the gun which Shaw had in his hand and it discharged" killing Spinks. The Respondent hoped the letter would persuade Harris that a lesser offense charge would be more appropriate for Mays. Respondent explained to the Hearing Board that his letter was "an attempt to get a plea agreement" and to let the assistant state's attorney know what testimony "my client would have to offer," presumably against Shaw. He did not consider that the letter could be viewed as an admission by Mays to the crimes of home invasion or felony murder. He told the Hearing Board that he did not know the felony murder law. On August 27, 2009, in an effort to persuade two witnesses to talk to him the Respondent also sent letters to Kathleen Faber and Roger Brown, in which he disclosed the information Mays had told him about the shooting scenario.

On August 28, 2009, Respondent received an e-mail from Assistant State's Attorney Harris informing the Respondent that Harris was going to file additional charges of home invasion and felony murder against Mays. On August 31, 2009, he did so filing a motion to file the additional charges against Mays. Respondent objected, claimed he was surprised by the new charges and requested a continuance of the trial. At the hearing on the motion, the prosecutor argued that the letter was "tantamount to a confession to a felony murder", that the charges could not come as a surprise to Respondent, and that it was therefore appropriate for the State to add the additional charges. The court agreed and granted the State's motion. The court denied Respondent's request for a continuance.

The attorney attempted to withdraw on the morning of the trial. The court denied the motion and the defendant was convicted.

In the disciplinary case, the attorney conceded that he did not have the client's informed consent to the disclosure. (Mike Frisch)

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

Phone Conversation Created Attorney-Client Relationship

The New York Appellate Division for the Third Judicial Department imposed a stayed one-year suspension of an attorney for misconduct in two matters.

In a criminal case, the attorney had a telephone conversation with the girlfriend of his client in a criminal matter. The conversation established an attorney-client relationship with the girlfriend, who had her own criminal exposure. He then used confidential information she had given him to cross-examine her. The conduct violated conflicts of interest rules.

In the second matter, he failed to have a required written retainer agreement with a matrimonial client. (Mike Frisch)

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

Law Of Stepniece Disqualification Explored

A recent opinion from the Florida Judicial Ethics Advisory Committee:


1. If a judge’s stepniece is employed as an attorney with  the Public Defender’s Office, is the judge’s disqualification required in all  criminal cases in which a public defender is involved?


2. If a judge’s stepniece  appears before the judge, is the judge per  se disqualified pursuant to Canon 3E, Code of Judicial Conduct?

ANSWER: No. Disqualification may be  required, however, depending upon the relationship between the judge and the stepniece.

3. Should the judge disclose  that the judge’s stepniece is appearing before the judge as an attorney in a  criminal case?



The inquiring judge currently presides over  a criminal division, and attorneys with the Public Defender’s Office regularly  appear before the judge.  When the judge  was a child, the judge’s mother remarried a person who, by a previous marriage,  had a child (stepsister to the judge).   The stepsister never lived with the judge, and the stepsister has a  child (stepniece to the judge). The judge’s stepniece just passed the bar and  is an attorney with the Public Defender’s Office.  The inquiring judge has not advised this  Committee of how close of a relationship the judge has with the stepniece.  The judge’s stepfather is deceased.

(Mike Frisch)

October 25, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Ethics Opinion On Confidentiality And In-House Counsel Claims Against Employer

A recently-issued opinion of the District of Columbia Bar Legal Ethics Committee concludes:

An in–house lawyer may not disclose or use her employer/client’s confidences or secrets in support of the lawyer’s claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer’s conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer’s confidences or secrets insofar as reasonably
necessary to respond to the employer/client’s contention. An in–house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer’s claim.

(Mike Frisch)

October 25, 2012 in Clients, Current Affairs, General Counsel | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 24, 2012

Shame Now The Name Of the Game: Judge Censured For Sharing Digital Image

The Michigan Supreme Court has publicly censured Circuit Court Judge Wade McCree based on a consent agreement.

The misconduct involved the judge's use of his cell phone to make a digital image of himself after completing a half-marathon. The image was shown to a number of people, including those "who worked in or passed through his courtroom."

The image was provided to a reporter for a television station. As a result, the judge was interviewed. He treated the interview in a "flippant" manner and said, "There is no shame in my game."

The interview and image "spread rapidly around the internet and became the subject of jokes and ridicule."

The judge is sorry now. The image is not part of the court's order.

Here it is, courtesy of (Mike Frisch)

October 24, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Public Protection Requires Disbarment

The North Dakota Supreme Court has accepted findings of misconduct but rejected a proposed three year suspension in a matter involving misappropriation of entrusted funds.

The court imposed disbarment, rejecting the arguments of the Office of Disciplinary Counsel for a lesser sanction because of the attorney's conduct after the misconduct was uncovered:

Disciplinary counsel argues there must be an incentive for attorneys to admit violations, cooperate in the disciplinary process, and take steps to undo the damage they have caused. We agree. As a result, disciplinary counsel further argues that McDonagh's cooperation and restitution outweighs the seriousness of his violations and the presumptive sanction of disbarment. We disagree. For example, in Disciplinary Bd. v. Mahler, the disciplinary board recommended an attorney be disbarred for a trust account and fee violation. 2012 ND 124, ¶ 1, 819 N.W.2d 489. Mahler deposited a $2,500.00 retainer into his operating account rather than into a trust account, and spent the retainer money before any fees were earned. Id. at ¶ 3. He also charged a higher fee than agreed to, and failed to diligently represent the client. Id. Mahler admitted the underlying facts and consented to discipline. Id. at ¶ 5. We rejected the recommended sanction of disbarment, ruling it was "inconsistent with and disproportionate to discipline imposed in similar circumstances." Id. at ¶ 8.

In this case, the recommendation was a three year suspension for much more serious violations than Mahler's by an attorney who also admitted the violations and cooperated with the investigation. While it is important to promote cooperation and restitution, the protection of the public and the profession is paramount. We must weigh the seriousness of McDonagh's violations and be consistent in the imposition of disciplinary sanctions for the same or similar violations. McDonagh engaged in a very serious pattern of deceit, including forging documents, lying to business associates, and misapplying client funds. In this case, the aggravating factors outweigh the mitigating factors, and disbarment is the appropriate sanction.

As a former disciplinary counsel, I find the issue of providing incentives to cooperate with the bar to be one worthy of further discussion. If an attorney truly self-reports (i.e. reveals misconduct when there is no likelihood of discovery), I think that a court might treat such conduct as a basis to avoid disbarment.  (Mike Frisch)

October 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Run For Office Ends With Suspension

The Pennsylvania Supreme Court has accepted a consent disposition and imposed a two-year suspension of an attorney who violated the state election code.

The attorney pled guilty to 17 counts of filing nominating petitions that "contained forged signatures of electors, and/or forged signatures of fictitious individuals, and/or false statements made by Defendant in signing affidavits of circulator."

The petitions were in connection with the attorney's efforts to obtain a variety of elected offices, both as Republican and Democrat. The positions included District Attorney, District Judge and Judge of the Court of Common Pleas. (Mike Frisch)

October 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

Lawyer At First Sight

An Arizona disciplinary panel has recommended that a petition for reinstatement be denied.

The attorney had accepted a six-month suspension in 2007 and was required to petition for reinstatement due to the time lapse.

The panel found that his application was "incomplete" and that he had intentionally omitted multiple unfavorable documents from the application.

Also, the panel rejected a doctor's evidence in support of reinstatement.

 For example:

[The doctor] also stated that [petitioner's] four divorces only reflect poor judgment skills regarding women, but not the practice of law, but never explained why such recurrent theme might not become a stressor again. The discounting of a stressing factor previously identified by the doctor, but now declared a nonfactor, was puzzling and simply not credible.

 The doctor has the wonderful name of Jack Potts. Perhaps the good doctor should set up a Nevada practice.

The particular stress that led to the suspension was the result of the attorney's July 2005 marriage to "a woman he met on a dating website that he had known for only 9 days." He testified that the marriage reflected his poor judgment.

The attorney came to believe that his new wife had "sought him out because she needed legal assistance with child custody suits pertaining to her four children" and later learned that she was an exotic dancer.

He and his wife obtained restraining orders against each other and the attorney "was arrested three times in a period of three or four months, once for violating a restraining order and twice for false charges of domestic violence." (Mike Frisch) 

October 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Failure To Pay Child Support

An attorney who failed to pay court-ordered child support has been suspended for a year and a day by the Colorado Presiding Disciplinary Judge.

The unpaid obligation was approximately $15,000. The attorney had not paId or arranged a plan for satisfying the arrearages.

He had been on interim suspension. (Mike Frisch)

October 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Pure Hearts And Empty Heads"

The Delaware Supreme Court has affirmed a trial court holding applying an objective standard to the determination whether a Rule 11 violation has taken place.

The court extended an earlier decision "to bar judges from sanctioning attorneys except where the attorney's conduct prejudically disrupts the administration of justice in a particular case."

The trial court had issued two sua sponte orders to show cause to an attorney concerning his representations to the court in representing a client in an asbestos suit. A $25,000 penalty was imposed on the attorney.

The court here reaffirmed the objective standard: "Delaware demands more from attorneys than pure hearts and empty heads."

However, the trial court did abuse its discretion in imposing sanction. The first contempt order involved his incorrect citation of a case, where he relied on a faulty memory; the second a failure to make a "thorough" argument.

Neither lapse rose to a sanctionable level: "The practice of law imposes many informal penalties on attorneys who do not make thorough arguments. Rule 11 sanctions are not among them."

The court vacated the sanction, noting that its holding "is not intended to leave a judge confronted with an attorney's problematic behavior without recourse. The Office of Disciplinary Counsel is well equipped to investigate attorneys and recommend appropriate action."  (Mike Frisch)

October 23, 2012 in Bar Discipline & Process, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

No Private Sanction

The Rhode Island Supreme Court has ordered a public censure of an attorney without pled nolo contendere to charges arising from a motor vehicle accident.

The charges  involved two felony counts of leaving the accident scene and a misdemeanor driving under the influence of liqour. He was sentenced to probation in the criminal case.

The court noted that the attorney had asked for private discipline. In the court's view, the case was "very similar" to one decided in 2011 in which a public censure was imposed: "We see no reason to impose a lesser sanction in this case." (Mike Frisch)

October 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)