Thursday, January 31, 2013
Responding to a question certified by the Ninth Circuit, the Washington Supreme Court has held that a deputy sheriff who got a Whopper with cheese from a Burger King drive-thru and "observed what appeared to be a glob of spit on the meat patty" has a cause of action for emotional distress without suffering a physical injury.
The deputy touched but did not consume the loogie. He sued under the state products liability act.
The court held that the claim was properly brought "if the emotional distress is a reasonable response and manifest by objective symtomatology" to touching the contaminated food product.
DNA testing proved that the spit came from a Burger King employee, who was charged and got 90 days in jail.
There is a dissent. (Mike Frisch)
The Florida Supreme Court has amended its rules governing attorney advertising. Te court acted after receiving the results of an "extensive study by the Florida Bar."
The court adopted a new numbering scheme to avoid confusion with the now-former rules. It also modified the Bar's proposal on the use of titles by retired judges, executive and legislative branch officials.
More after we review the new rules. (Mike Frisch)
The Maryland Court of Appeals has imposed an indefinite suspension of no less than 90 days in matters arising from the attorney's relationship with a loan modification business.
The court agreed with Bar Counsel that the attorney violated Rule 1.5 (fees) by leading a complainant to believe that she was getting legal, as opposed to lay, services:
The retainer agreement between [the complainant] and the [law] firm explicitly detailed legal services that would be provided, including negotiation on her behalf, that, by [the attorney's] own testimony at the hearing, he never provided. In fact, [he] testified that he knew it was not possible to negotiate with the lenders on behalf of the borrowers early in this practice but "just never changed the document" to eliminate that language to reflect the actual legal services he was capable of providing.
The attorney admitted that he did not provide legal services to the complainant. (Mike Frisch)
A judgment on behalf of a Major League umpire against Wilson Sporting Goods was affirmed today by the District of Columbia Court of Appeals.
Umpire Ed Hickox was wearing a mask given to him by a Wilson representative, with "what the representative claimed was a new, safer design." He was injured while wearing the mask while working the plate at a Washington Nationals game when a ninth-inning foul ball hit his mask. He suffered a concussion and moderate loss of hearing.
The mask "had a newly designed throat guard that angled forward instead of extending straight down." The foul hit the throat guard and "the mask did not deflect the ball but rather temporarily trapped the ball, concentrating the ball's energy at the point of impact."
The court rejected Wilson's attacks on the expert testimony and that an assumption of risk instruction was improperly denied.
The court concluded that the evidence was sufficient to support the verdict. (Mike Frisch)
The District of Columbia Board of Professional Responsibility has recommended the disbarment of an attorney based on findings that he had recklessly misappropriated funds entrusted to him as a conservator.
The board noted that the hearing committee expressed concern about the delay in filing the ethics charges.
The matter was referred to Bar Counsel in 2003 by court order and the charges were filed eight years later. Although the delay was unexplained, there was no prejudice in defending the charges and no reduction of the appropriate proposed discipline.
One notable aspect of the case is that the board heard oral argument this month and issued a short report that adopted the hearing committee findings. I commend that approach.
The case is In re Lennox Simon and can be found through this link. (Mike Frisch)
Wednesday, January 30, 2013
The Wyoming Supreme Court has imposed a public censure of an attorney who failed to communicate with his client and was not prompt in responding to the ensuing bar complaint.
When disciplinary counsel wrote to remind him to respond, he sent a fax that ended with this explanation of the delay:
I so enjoy getting letters from the State Bar marked Personal-Confidential and I put it at the bottom of the pile instead of the top.
After another reminder, he gave a refund to the complaining client. (Mike Frisch)
An Illinois Hearing Board has reprimanded an attorney who disclosed confidential information in a court filing:
In 2010, Respondent, an associate attorney at the law firm of Greene and Letts in Chicago, Illinois, was the attorney responsible for all cases stemming from a contract the law firm had with the United States Department of Justice to represent the United States in debt collection cases involving student loans.
In July and August 2011, at Respondent's direction, one of Respondent's several non-lawyer assistants prepared complaints and corresponding exhibits alleging that defendants were indebted to the United States for failure to pay student loans.
At Respondent's direction, one of Respondent's several non-lawyer assistants logged on to the U.S. District Court for the Northern District of Illinois ("N.D. Ill.") Case Management/Electronic Case File ("CM/ECF") system to file the complaints and exhibits.
When logging on to the CM/ECF system, one of Respondent's several non-lawyer assistants, was required to check a box that declared that the filings were in compliance with Rule 5.2(a) of the Federal Rules of Civil Procedure ("Rule 5.2(a)"), which required that personal identifying information be redacted from all filings.
The exhibits that Respondent attached to the complaints were loan documents that contained the defendants' personal identifying information, such as social security number, date of birth, and account numbers. In numerous complaints and exhibits, defendants' personal identifying
information was not redacted, which cause the defendants' personal identifying information to be available to the public and viewable on the N.D. Ill. website home page.
The attorney also failed to properly suopervise the process of redacting the confidential information. (Mike Frisch)
The Wisconsin Supreme Court has revoked the license of an attorney who had a "lengthy disciplinary history."
The court summarized the problems:
Attorney [H]s return to the disciplinary process on multiple occasions with the same problems indicated a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations. The lack of acceptance of responsibility and lack of remorse was also demonstrated by Attorney [H]'s attempts to blame J.M. and his associate attorney for the delay in filing the new civil action. He also claimed that J.M. was withholding documents from him because he delivered more than two boxes of file documents to J.M. upon termination of the representation. The referee, however, found more credible the testimony of J.M. and his significant other that Attorney [H] had provided only two boxes of documents that purportedly represented the sum of Attorney [H]'s file on the J.M. representation...
...we determine that Attorney [H]'s license to practice law in Wisconsin should be revoked. We note that this is the fifth disciplinary proceeding against Attorney [H], and that he has now been disciplined for the same types of misconduct on multiple occasions. He has therefore demonstrated that he is unable to conform his conduct to the rules of professional conduct for attorneys in this state. As the referee noted, even when representing himself in this proceeding with his license status at issue, he failed to perform as a responsible attorney, ignoring the need to develop a defense substantiated by documentary evidence, to appear for court proceedings, and to file briefs, exhibit lists, etc., as requested by the referee. Moreover, of great importance to our determination is the referee's finding that Attorney [H] took $58,000 of his client's money and produced no benefit for the client. Indeed, he converted $28,000 of his client's money to his own personal uses without his client's knowledge. He has therefore demonstrated that he is not currently fit to hold a license to practice law in this state and to represent members of the public in important legal matters.
The court also ordered payment of costs and restitution. (Mike Frisch)
Tuesday, January 29, 2013
The Ohio Supreme Court has denied admission to a 2011 Chase College of Law graduate who was observed writing after time was called on the July 2011 bar examination.
Another applicant reported that she had written enough to complete full sentences twice, once on the first and again on the second day. The director of bar admissions had the applicant's tablemate confirm the late writing.
A hearing was held by the Board of Bar Examiners and a panel "concluded that [the applicant] had violated bar-examination rules by writing after time was called on at least two occasions and that she did not intend to violate the rule against writing after time was called." Her score was penalized but she nonetheless passed.
The character and fitness process did not go so well. The applicant "adamantly denied" the allegations and attacked her accusers. Her response to the allegations was "hostile" and she claimed it was an extreme hardship to attend the hearing.
The Board of Commissioners on Character and Fitness recommended against admission. The court here agreed.
The applicant will be allowed to reapply in February 2013. (Mike Frisch)
Monday, January 28, 2013
The North Carolina Supreme Court has held that the consultations between members of the General Assembly and lawyers employed by the Attorney General and two outside law firms (Ogletree Dinkins and Jones Day) in matters involving redistricting plans are protected by the attorney-client privilege.
Justice Jackson, for the majority, concluded that the General Assembly did not intend to waive privilege in such matters:
..we are unwilling to infer such a sweeping waiver unless the General Assembly leaves no doubt about its intentions.
Justice Hudson dissented, and noted that the enactment at issue stripped confidentiality from redistricting law. Without confidentiality, there can be no privilege:
Defendants seek to protect much of their legislative redistricting work from public scrutiny under the cloak of the attorney-client privilege; however, the statutory language could not be clearer in indicating that the privilege is inapplicable here, making waiver irrelevant.
The Wyoming Supreme Court has affirmed a district court judge's order reducing by half the payment to an attorney appointed to represent an indigent parent in a parental rights matter.
The court agreed with the district court that some of the attorney's billings were "patently excessive." For instance, the attorney had billed 47.57 hours for a Friday through Sunday.
In order to properly charge the claimed time, he would have to have not eaten, relieved himself or done anything else during the blocked time (citing an earlier case where that point was made).
On this record, we cannot escape the judgment that [the attorney's] litigation efforts became overkill.
The district court's 50% cut was an appropriately "practical means of trimming fat" from the fee application. (Mike Frisch)
From the web page of the Virginia State Bar:
The Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed amendments to rule 5.4 of the Rules of Professional Conduct.
Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main Street, Suite 1500, Richmond, VA 23219 or firstname.lastname@example.org, no later than the end of the business day on April 19, 2013.
view proposed rule (PDF)
This proposed rule amendment is intended to bring Rule 5.4, Professional Independence of a Lawyer, into alignment with Va. Code §54.1-3902(B)(1), which permits a nonlawyer to serve as the secretary, treasurer, office manager, or business manager of a professional entity that is authorized to practice law, notwithstanding the rule’s prohibition against a lawyer practicing in a law firm in which a nonlawyer serves as a corporate officer.
Saturday, January 26, 2013
The Illinois administrator has recently filed a complaint alleging misconduct by an attorney after she was disqualified in a guardianship matter.
The charges involve blogging about the case:
Between December 2009 and November 2011, the court made various findings of law in relation to the Sykes case, some of which involved [her former client] Gloria’s ownership in certain property. In or about November 2011, Respondent began writing and publishing two Internet web logs (“blogs”) devoted to discussing matters related to Mary Sykes’ probate matter. The two blogs were entitled, “marygsykes – An attorney blog concerning corruption and greed in the Probate Court of Cook County,” and “marygsykes,” respectively. Respondent posted her own writings as well as the writings of others on both blogs. Those writings included allegations that there was corruption in the probate court of Cook County, particularly in relation to Mary Sykes’ probate case, that Sykes was the victim of elder abuse, and that the GALs and the court had acted inappropriately with respect to Sykes’ estate, that they had violated the law, and that they had physically or mentally harmed Sykes.
Respondent’s blogs were open to the public and were not password-protected. Respondent knew or should have known that the contents of her blogs were continuously available to anyone with access to the Internet. Respondent a purported disclaimer on her blogs, which included the following language:
Sorry, but portions of this blog have to be entertaining so we can get the word out. There is most certainly a great deal of (stinging) truth in it, esp. for the GAL’s (sic), the probate court and a society that ignores (thereby condoning) the sleazy world of probate, and in particular the 18th floor of the Daley Center in Chicago, but everyone needs to understand, these are not pleadings, there is no Motion, Response and Reply set by any court, together with extended legal argument recorded by a court reporter and subject to a Motion to Reconsider if errors or new evidence is found.
The complaint then sets out the various posts and alleges
Respondent’s blog posts...that there was impropriety going on in relation to the Sykes case; that the GALs and the judges were corrupt; that the GALs and the court had engaged in financial exploitation or had financially profited in some way in relation to Sykes’ guardianship case; that the judge had inappropriately taken away Sykes’ rights; and that Stern, Farenga, and the judge had committed crimes, were false.
Respondent either knew that her statements...were false or she made the statements with reckless disregard as to their truth or falsity.
We previously reported on a complaint brought against an Illinois attorney who allegedly violation her duty of client confidentiality by blogging about clients and cases. There does not appear to be such a charge here.
Given that, I think that there may be a substantial First Amendment defense to this complaint. (Mike Frisch)
Friday, January 25, 2013
The New Jersey Supreme Court has reprimanded two attorneys based on the consolidated recommendation of the Disciplinary Review Board.
The circumstances are worthy of study in light of the state of the market in law jobs.
The attorneys were both inexperienced immigrants from Korea who had been admitted to practice in New Jersey (and one also in New York). Both had difficulty obtaining meaningful legal employment and were in the United States without permanent status.
They found legal work for a man named Jacob Kim, who operated several businesses and served as their employment sponsor for visa purposes.
According to the DRB:
By all accounts, Jacob Kim was a tyrant, who intimidated his staff and held respondents' immigration status over their heads, in order to have them engage in improper conduct.
Eventually, one of the attorneys broke away from Kim. This led to a disciplinary investigation and charges. The DRB noted that language difficulty impeded the attempt to unravel the situation. The attorneys offered differing versions of what had taken place and received mixed credibility reviews.
The DRB rejected charges of misconduct for "ghostwriting" pleadings but found that the attorneys had violated the rule that requires written fee disclosure to clients.
The case illuminates the ethical dangers that come into play when a desperate attorney takes a bad job. (Mike Frisch)
Thursday, January 24, 2013
The District of Columbia Bar has amended its rules to ensure that only a "bar insider" can become its leader.
The announcement from the Bar web page:
The Bar’s Board of Governors has approved changes in the Bar’s By–laws to remove the office of president–elect from the list of positions for which individuals may be nominated by petition and to set the threshold requirement for petition candidacies for the remaining elected leadership positions at a percentage of the active membership instead of an absolute number.
In its memorandum originally proposing the changes to the Board, the Bar’s Leadership Development Committee described them as “consistent with the Bar’s core value of visionary leadership and the strategic plan’s objective to develop an organizational culture that produces outstanding leaders who are committed to making the D.C. Bar the national leader in the legal profession for professional excellence, preeminent programs, and exemplary public service.”
The Bar’s By–laws provide that the Bar’s Committee on Nominations puts forth the names of at least two and no more than three active members for the offices of president–elect, secretary, treasurer, and vacancies on the Board of Governors as well as vacant positions for delegates to the American Bar Association House of Delegates. With the changes, individuals who are not named by the Committee on Nominations for any position other than president–elect may be nominated by obtaining the signatures of at least one–half of one percent of the active membership of the Bar based on a census of the Bar as of the first business day in the calendar year in which the elections are held. As of January 2, 2013, the Bar’s active membership was 72,042, making this year’s petition threshold 361 signatures. Previously, petition candidates were required to obtain the signatures of 100 active members.
The By–law changes also clarified that petitions must be submitted in accordance with procedures established by the Board and must contain handwritten, legible signatures accompanied by the D.C. Bar member identification number of signers.
In the end, this is no big deal, as it does not really matter who serves as the D.C. Bar's President and an outsider has a snowball's chance in hell of actually getting elected. Bar leadership positions serve as a resume builder but have little impact on the direction of the Bar.
What makes this petty rule change passing strange is that, to my knowledge, no one has ever won the president-elect position by petition. How does foreclosing the possibility serve the interests of the members of this mandatory organization?
It strikes me that an undemocratic (small "d") rule change to shut out persons who dare to seek a leadership position without the blessing of the "Bar" sets a very poor example for a profession dedicated to fairness, equal access to justice and the rule of law.
Maybe I'm missing something. Maybe the "core value of visionary leadership" should embrace all members and not just the favored few. (Mike Frisch)
"One of the most valued judges in New Castle County [Delaware]" has been publicly censured by the Delaware Supreme Court.
The judge's misconduct involved "unneccessary delay" in several family court matters. The "persistent conduct" caused needless anxiety to litigants and harmed public confidence in the judiciary.
The judge did not dispute the delays but blamed her assistant.
The Board of Examining Officer appointed by the court called the sanction determination "troublesome" and found no helpful Delaware precedent.
The court followed the board's recommendation on sanction. (Mike Frisch)
An attorney convicted of immigration crimes in federal court has consented to disbarment in Pennsylvania.
Philly.com described the August 2011 verdict in the criminal case:
As chairman of the Pennsylvania Governor's Advisory Commission on Asian-American Affairs, Korean-born Michael Choi of Huntingdon Valley was a well-connected lawyer. His Cheltenham practice grabbed headlines for class-action lawsuits about Agent Orange, the "No Gun Ri" massacre of the Korean War, and slave labor in Japan. He was a frequent guest on TV newsmagazines.
But to federal prosecutors in Philadelphia, Choi, 58, was the disgraced mastermind of a conspiracy that fraudulently obtained green cards for immigrant clients.
After three hours of deliberation Friday, the jury found Choi guilty of all charges except one count of tax evasion. He remains in custody, and sentencing is scheduled for Nov. 22.
He was sentenced to 30 months with conditions on release. (Mike Frisch)
A criminal defendant produced a handgun in court after the jury rerturned a guilty verdict. He was subdued by the assistant attorney general and a sheriff. As a result, he was charged with attempted murder of the two public officials.
The North Dakota Supreme Court affirmed the conviction, concluding that the prosecutor's characterization of the defendant's story as a "lie" was improper but not unduly prejudicial:
Here, [defendant] Chacano's story was a candidate for fair and reasonable criticism, but prosecutors should not "inject their personal beliefs into closing argument." Clark, 2004 ND 85, ¶ 11, 678 N.W.2d 765. Though "[a] prosecutor's closing argument may properly draw reasonable conclusions . . . from the evidence," the danger is the prosecutor's improper argument "may induce the jury to trust the government's view rather than its own judgment . . . when deliberating." State v. Rivet, 2008 ND 145, ¶¶ 4-5, 752N.W.2d 611 (citation omitted).
In Schmidkunz, we noted our concern for inappropriate prosecutorial comments on evidence by noting, "when a prosecutor comments personally on evidence . . . he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness." 2006 ND 192, ¶ 10, 721 N.W.2d 387. Prosecutors can argue inferences and what the evidence shows, but opining "[t]he Defendant's testimony is a lie," is improper because it goes beyond an inference. As we have said before, we do not "countenance an attorney calling a witness a liar." State v. Flohr, 310 N.W.2d 735, 737 (N.D. 1981); see also Fox v. Bellon, 136 N.W.2d 134, 139-40 (N.D. 1965) (holding it was improper and misconduct for a plaintiff's attorney in a civil trial to call the defendant a "liar," "pathological liar," and a "crook" in rebuttal argument to jury).
Even though the prosecutor's comment was improper, Chacano must still show it affected his substantial rights. On this record, he cannot make that showing. This was a single, isolated statement in the context of a jury trial...
The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a district attorney engaged in no ethical violation in representing a civil client.
The client was injured when she fell out of an inner tube connected to a boat. The boat driver was issued a citation charging misdemeanor criminal violations.
The district attorney recused his office from prosecuting the citations, continued to represent his client in the civil litigation and received a legal fee of $20,000.
The Office of Disciplinary Counsel charged that the district attorney engaged in a concurrent conflict of interest and conduct prejudicial to the administration of justice.
The board here found it significant that the district attorney (who was allowed a civil practice) had accepted the representation before he was aware of the citations (and resulting conflict).
Any ethics scholars out there disagree with the board's conflicts analysis? (Mike Frisch)
Wednesday, January 23, 2013
An attorney who last year was censured and had a lengthy suspension deferred "under conditions intended to assist [him] in maintaining his sobriety" was disbarred by the Oklahoma Supreme Court as a result of two alcohol-related instances of misconduct.
According to the court, the lenient treatment in the earlier case was imposed because witnesses felt that the attorney "had conquered his demons" but that he "fell off the wagon with a thud."
The first incident occured while the censure case was pending:
Belinda and James Roe live with their children in a home located in Logan County. At approximately 6:00 p.m. on May 19, 2012, they began hearing machine gun fire coming from an adjacent residence. When the shooting had been going on for one to two hours, the Roes called the property owner. They were advised that it was the renter and his attorney who were doing the shooting. At 10:00 p.m., the Roes decided to go next door and ask that the shooting cease as the couple and their children were getting ready to retire for the night.
One of the two intoxicated shooters was the attorney. He identified himself as an "agent" and the sheriff's office responded. He cursed and threatened to sue the responding deputy sheriff.
The second incident took place after the court's decision:
James J. Pasquali (Pasquali) is an attorney practicing primarily in Oklahoma County. On October 7, 2012, he decided to stop by a bar and off-track betting establishment, Thunder Roadhouse (Roadhouse). When he entered the Roadhouse, Pasquali recognized several people, one of which was [the attorney] Moon, who appeared to have been drinking. After greeting Moon, Pasquali offered to buy him a drink at which point Moon asked for a vodka and Red Bull. Pasquali then walked away from Moon and Moon's companion, James Randall Dodd (Dodd).
Some time later, Dodd and Moon joined Pasquali. Dodd confronted Pasquali telling him that he had a "problem" with him and demanding the return of a fee of one-thousand dollars ($1,000.00) paid to Pasquali for the representation of Dodd's son. At this point, Moon entered the conversation in an extremely aggressive and threatening manner. He threatened to kill Pasquali and have his daughters raped and killed. Moon told Pasquali that if he went to the police, he would kill him. He grabbed Pasquali's collar and threatened to run a pen through his neck and his remains through a shredder.The matter only began to diffuse when the bartender approached the group and asked if everything was all right. Pasquali was able then to leave the Roadhouse.
Pasquali, in shock at Moon's treatment and scared for himself and his family, called his law partner who advised him to contact the police. He did so along with the Oklahoma County District Attorney. When the police arrived, Moon and Dodd had left the premises. On October 29, 2012, Moon was charged in Oklahoma County with attempted extortion, threatening to perform an act of violence, and assault and battery.The court rejected claims of procedural and due process violations. (Mike Frisch)