Wednesday, April 30, 2014

Remand Of Covington & Burling Disqualification Order

The Minesota Supreme Court has remanded the order that had disqualified Covington & Burling in civil litigation

This case presents several issues regarding disqualification of legal counsel because of a violation of Minn. R. Prof. Conduct 1.9(a) arising from a conflict of interest with a former client. These issues include who has standing to appeal a district court order granting a motion to disqualify, the legal standard for determining whether Rule 1.9(a) has been violated, and whether the right to seek disqualification can be waived. Appellant State of Minnesota retained appellant Covington & Burling, LLP (Covington) to represent it in a natural resource damages (NRD) case against respondent 3M Company involving the manufacture and disposal of perfluorochemicals (PFCs). Covington previously had represented 3M in legal and regulatory matters related to 3M’s fluorochemicals (FC) business from 1992 to 2006. Covington first appeared on behalf of the State in this action in January 2011. In October 2012, the district court granted 3M’s disqualification motion. Both the State and Covington appealed. The court of appeals dismissed Covington’s appeal for lack of standing and affirmed the disqualification of Covington. We granted Covington’s and the State’s respective petitions for review. For the reasons that follow, we affirm in part, reverse in part, and remand to the district court.

The holding

Here, the district court concluded, based on the evidence in the record, that Covington obtained confidential information in its prior representation of 3M, and the district court presumed that the information was shared with all Covington attorneys. But the district court did not meaningfully assess Covington’s claims that this information was no longer confidential either because the information had been disclosed to regulatory authorities and the public or because 3M waived the attorney-client privilege by initiating a separate, concurrent lawsuit against Covington for breach of fiduciary duty and breach of contract. The district court also did not analyze whether there is a substantial risk that any remaining confidential information would materially advance the State’s position in the NRD case. Therefore, the district court abused its discretion by failing to consider all legally relevant factors before concluding that the matters are substantially related...

Because we conclude that the district court did not consider legally relevant factors in conducting its disqualification analysis under Rule 1.9(a) and we conclude that a party can waive the right to seek disqualification of opposing counsel, we remand this case to the district court for its full consideration of these issues in a manner consistent with this opinion. The decision whether to reopen the record on remand rests within the discretion of the district court.

The ABA Journal had reported the trial court's order. (Mike Frisch)

April 30, 2014 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

The Rights Of Associates

The Indiana Supreme Court has imposed a public reprimand of an attorney for making an agreement that limited the ability of associates to notify clients of their departure

In October 2006, Respondent hired an associate ("Associate") to work in his law firm. As a condition of employment, Associate signed a Confidentiality/Non-Disclosure/Separation Agreement ("the Separation Agreement"). If Associate left the firm, the Separation Agreement provided that only Respondent could notify clients that Associate was leaving, prohibited Associate from soliciting and notifying clients that he was leaving, and prohibited Associate from soliciting and contacting clients after he left. The Separation Agreement also included provisions for dividing fees if Associate left the firm that were structured to create a strong financial disincentive to prevent Associate from continuing to represent clients he had represented while employed by the firm.

In October 2012, Associate informed Respondent that he was leaving the firm. At the time, Associate had substantial responsibility in representing more than a dozen clients ("Associate's Clients"). Respondent insisted on enforcing the terms of the Separation Agreement regarding these clients. Respondent sent notices to Associate's Clients announcing Associate's departure. Not all of the notices explained that these clients could continue to be represented by Associate if they so chose, and the notices did not provide clients with Associate's contact information. The Separation Agreement provided that Respondent would provide Associate's Clients with his contact information only if they requested it, and Respondent provided the information to any such clients who specifically requested it.

Despite the provisions of the Separation Agreement, Associate sent out notices to Associate's Clients that explained that the client could choose to be represented by Respondent or by Associate, and that included Associate's contact information. In response, Respondent filed a complaint against Associate seeking to enforce the Separation Agreement. A settlement was reached through mediation.

Immediately after the Commission began its investigation in this matter, Respondent discontinued his use of the Separation Agreement...

The court

The Court concludes that Respondent violated Indiana Professional Conduct Rule 5.6(a) by making an employment agreement that restricted the rights of a lawyer to practice after termination of the employment relationship. For Respondent's professional misconduct, the Court imposes a public reprimand.

(Mike Frisch)

April 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

On The Side

An attorney who had engaged in a "side practice" forbidden by his law firm policies and failed to report the income for tax purposes was suspended for nine months by the New York Appellate Division for the First Judicial Department.

In August 2012, the Departmental Disciplinary Committee (Committee) charged respondent with, inter alia, maintaining a side law practice for approximately 11 years without his law firm's knowledge and in contravention of firm policy...Respondent was also charged with failing to declare the income earned from his side law practice to federal and New York tax authorities...

The attorney admitted the allegations.

As to sanction

The findings of liability, which are amply supported by the record, are not challenged by respondent and are hereby confirmed. Respondent was not the subject of criminal or tax collection proceedings and took the initiative to resolve his tax liability (albeit after he became the subject of a Committee investigation). In addition, respondent's misconduct is mitigated by an unblemished disciplinary record over his 24-year career, his full cooperation with the Committee's investigation, expressions of remorse, and pro bono legal work. We find, under the circumstances, that a ninemonth suspension is warranted.

(Mike Frisch)

April 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Off The Books

The New York Appellate Division for the First Judicial Department granted a motion to suspend an attorney who was alleged to have engaged in law practice while suspended for failure to register, pay dues and complete CLE.

The [Departmental Disciplinary Committee] began its investigation into respondent's conduct after it received a November 22, 2013 complaint letter from an attorney reporting that respondent "may have been and may still be engaged in the unauthorized practice of law." Specifically, the complaint indicated that respondent represented a client in the purchase of a restaurant. According to the complaining attorney, when he attempted to commence a lawsuit in Nassau County against respondent, and others, on behalf of respondent's former client, he was told by OCA that respondent had neither registered nor paid registration fees since his admission in 1958.

Note --the attorney was unregistered for over thirty years.

The bar filed a motion to suspend

The DDC argues that this Court has repeatedly held that failure to register or re-register and pay registration fees constitutes professional misconduct warranting discipline, citing our mass suspension cases. As proof that respondent has actively engaged in the practice of law, the DDC has provided a printout from a "cursory search of" the Unified Court System's (UCS) eCourts website. The DDC contends that this printout demonstrates that respondent actively represented clients in Civil and Supreme Courts from the late 1970s through the 1990s and into the first few years of this century.

Respondent has not served a response and as of March 26, 2014, the UCS public attorney registration website continues to show that he is not registered. Respondent is approximately 80 years old, and appears not to have engaged in any other misconduct. However, he readily admits his ongoing failure to register, pay fees, and earn the required CLE credits. In light of these conceded facts, and respondent's acknowledgment to the DDC investigator that he is aware of his obligation to register with OCA and earn CLE credits, and given respondent's default on this motion, the DDC's motion to immediately suspend respondent should be granted and respondent suspended from the practice of law until further order of this Court.

(Mike Frisch)

April 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Flight Delayed

A recent public reprimand is summarized on the web page of the Massachusetts Board of Bar Overseers:

On June 4, 2013, the respondent entered a plea of nolo contendere in the Circuit Court of the Twelfth Judicial District, Sarasota County, Florida, to disorderly conduct in violation of Fl. Stat. 877.03 and possession of cannabis, less than 20 grams, in violation of Fl. Stat. 893.13(6b). The conviction arose from the respondent’s conduct in physically resisting a search by TSA officials and breaching TSA security procedures at the Sarasota, Florida, airport. The court accepted the plea, withheld adjudication on both charges, fined the respondent $500 on the disorderly conduct charge and $250 on the charge of possession of cannabis, and imposed court costs and the cost of prosecution.

The respondent’s disorderly conduct conviction violated Mass. R. Prof. C. 8.4(b) and (h). In mitigation, the misconduct was not related to the practice of law. In aggravation, the underlying conduct involved the respondent’s resisting a TSA search at the Sarasota airport, proceeding through a TSA scanner without authority, and entering the airport concourse. The entire screening area was briefly shut down, disrupting other passengers in the screening area.

Massachusetts Lawyers Weekly reported that the attorney is managing director of a medical malpractice law firm. (Mike Frisch)

April 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

What Guilty Plea? Let Him Back In!

The District of Columbia Board on Professional Responsibility recently issued a report that reflects its deeply held values.

The case involves an attorney who pleaded guilty to Improper Photography or Visual Recording in Texas. He may have the charges dismissed on completion of a period of community service in the distant future. He also has served 30 days in prison.

The Texas adjudication was reported to the District of Columbia Court of Appeals, which suspended him as a result of the guilty plea to a "serious crime." The court referred the matter to aforesaid Board, pursuant to its rules, for a moral turpitude recommendation.

If the crime involves moral turpitude per se, disbarment is automatic. If not, the matter is referred to a hearing committee to consider whether the facts involved aforesaid turpitude.

The Board chose a third option -- it ignored the court's order to  consider moral turpitude and told the court it should immediately reinstate the attorney.


Because he might wind up not convicted someday.

So, the Board proposes, the court should ignore that the attorney had pleaded and remains guilty because the plea may eventually be vacated.

The Board  also sees fit to ignore the plain language of the Court's rules, which require suspension on a plea of guilty (emphasis is  mine):

Rule XI, section 10(b) Upon the filing with this Court of a certified copy of the record or docket entry demonstrating that an attorney has been found guilty of a serious crime or has pleaded guilty or nolo contendere to a charge of serious crime, the Court shall enter an order immediately suspending the attorney, notwithstanding the pendency of an appeal, if any, pending final disposition of a disciplinary proceeding to be commenced promptly by the Board. Upon good cause shown, the Court may set aside such order of suspension when it appears in the interest of justice to do so...

Rule XI, section 10 (d) Upon receipt of a certified copy of a court record demonstrating that an attorney has been found guilty of a serious crime or has pleaded guilty or nolo contendere to a charge of serious crime, or any crime that appears to be a serious crime as defined in subsection (b) of this section, Bar Counsel shall initiate a formal proceeding in which the sole issue to be determined shall be the nature of the final discipline to be imposed. However, if the Court determines under subsection (c) of this section that the crime is not a serious crime, the proceeding shall go forward on any charges under the Rules of Professional Conduct that Bar Counsel may institute. A disciplinary proceeding under this subsection may proceed through the Hearing Committee to the Board, and the Board may hold such hearings and receive such briefs and other documents as it deems appropriate, but the proceeding shall not be concluded until all direct appeals from conviction of the crime have been completed.

The attorney here pleaded guilty to a felony serious crime -- that is why the Court suspended him.

Where on these facts does the board come up with the option of doing nothing except for advocating to vacate the interim suspension and referring the case as an original matter to Bar Counsel?

Maybe we should do nothing when any D.C. attorney is convicted of any crime. After all, there might be a pardon someday.

Click2 Houston had this brief report on the beneficiary of this gift

A Houston man was arrested on charges of improper photography. Investigators said he hid a camera at work and took photos of his colleague.

Officers arrested Darrell Fuller on Friday.

Court documents showed the victim spotted an inappropriate photo of herself on his computer.  She called police, and investigators said they found a hidden camera and more photos of her.

The case is In re Darrell Fuller and the Board report can be found at this link.

As the ABA Journal reports, it's been a good day for attorney upskirt photographers.

For the integrity of the profession, not so much. (Mike Frisch)

April 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2014

"A Strong Positive"

A lawyer's troubles with the bar began in an unusual way, according to a recent complaint filed by the Illinois Administrator:

On June 23, 2011, Respondent was arrested in Kane County, Illinois in the apartment of a new client. At the time of his arrest, Respondent was in possession of cocaine and a crack pipe. He was charged with possession of a controlled substance.

The criminal charges led to an agreement with the Illinois Bar to defer prosecution with probationary conditions.

That also did not go well:

On November 25, 2013, Respondent met with Commission Senior Counsel and Director of Probation Services and a Commission Senior Paralegal and Probation Officer, for his initial probation meeting with the Commission. At that meeting, Respondent disclosed the following:

a. that he had moved his residence to a new location in October 2013; and that he had been at a party within the previous two weeks where someone had put alcohol in Gatorade bottles without his knowledge and he drank from one of the bottles.

At no time during that meeting or at any time after he signed his Rule 108 Affidavit and prior to the November 25, 2013 meeting, did Respondent disclose that he had used cocaine since signing the Rule 108 Affidavit.

During the November 25, 2013 meeting, Respondent was directed to submit to a random drug test at Quest Diagnostics on the day of the meeting. Respondent submitted to the random drug test on November 25, 2013.

On December 2, 2013, the Commission received the results of Quests' five-panel test run on Respondent's November 25, 2013 specimen. The results were positive for cocaine metabolites, in what was described by a scientist at Quest as a "strong positive." The scientist also stated that based on the test results, Respondent would have had to have used cocaine, in some form, within three days of the testing date.

Following receipt of the test results, the Commission Probation Officer spoke on the telephone with Respondent who advised her that he had smoked cigarettes laced with cocaine on Saturday, November 23, 2013.

 The complaint alleges the attorney violated the conditions of the deferred prosecution agreement. (Mike Frisch)

April 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Audit Leads To Suspension

The Iowa Supreme Court has suspended an attorney for at least six months and until further order for ethics violations that were discovered when several escrow account checks bounced.

When the auditors came

Morris told the auditors he had no employees and revealed he personally performed all banking functions for the trust account. The auditors discovered Morris kept no general ledger for the account and no separate ledger evidencing for each client the source of all funds deposited, the names of all persons for whom the funds were held, or the record of charges and withdrawals pertaining to each client. Morris produced for the auditors some trust account bank statements in their original envelopes, a loose-leaf checkbook with a check stub register for the account covering the period from January 2009 through May 3, 2010, a handwritten list of clients, and two pages of "trust account sheets" generated by Morris for the auditors.

Morris, who was cordial and helpful in his interactions with the auditors, produced no documentary evidence for the auditors tending to show he kept running trust balances for individual clients or that he regularly reconciled the trust account. The bank records he made available to the auditors evidenced numerous deposits and disbursements that could not be attributed to specific clients and documented several account overdrafts for the years 2008 and 2009.

The audit revealed a shortfall of over $11,000.

There was mitigating evidence. The attorney practiced law with his brother, whose sickness and death greatly concerned him, as well as his mother's health issues. (Mike Frisch)

April 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

Hricik on Judges Having "Friends" and Other Tech Issues of Judicial Ethics

David Hricik (Mercer, Law) has posted to SSRN a useful paper for judges, but also for the rest of us interested in how their ethics are affected by new technologies (and how to deal with lawyer ethics of using tech). It is titled Technology and Judicial Ethics and its abstract is:

This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including "friending" lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.

[Alan Childress]

April 25, 2014 in Abstracts Highlights - Academic Articles on the Legal Profession, Judicial Ethics and the Courts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Censure For False Statement To

A false statement to a third party resulted in an attorney's public censure by the New York Appellate Division for the First Judicial Department.

Here's the story

Shortly after her admission in 2006, respondent opened her own practice and also practiced as of counsel to a New York law firm. Respondent specializes in consumer fraud actions. In November 2010, respondent commenced a proposed class action in Texas on behalf of plaintiff Terry Smith against the online dating service Respondent, who is not admitted to practice in Texas, associated herself with local counsel to enable her participation in the action. Respondent did not personally draft the complaint but had input in its drafting. Except for one occasion, respondent did not appear in the Texas court; however, she did participate in discovery and communicated on several occasions with the Texas defense counsel.

On July 5, 2011, respondent placed a telephone call to's customer service department to obtain the name of a supervisor to depose. Respondent, using a false name, left a voice message and falsely identified herself as a journalist calling from a business journal for a story. A public relations coordinator returned the call later that day. When respondent answered, she used her real name, but when the coordinator stated she was returning a call from the business journal, respondent again used the false name. Respondent was unable to obtain the name of a supervisor, because she did not provide sufficient journalistic credentials in response to the coordinator's inquiries. Realizing she had acted improperly, respondent promptly disclosed her actions to defense counsel. In explaining her actions, respondent claimed that formal discovery would have been ineffective because defense counsel had submitted nonresponsive answers to her prior discovery requests.

On March 15, 2012, the Texas state court issued an order compelling plaintiff Terry Smith to produce certain discovery documents. When plaintiff did not produce the documents, defendant moved for fees and costs and to have plaintiff declared pro se, based on respondent's failure to be admitted pro hac vice. On April 23, 2012, the court held a hearing on the motion at which respondent appeared telephonically. A month before the hearing, plaintiff's local counsel withdrew from the action. Notwithstanding its withdrawal, the local counsel informed respondent that it would still sponsor her pro hac vice application. However, counsel withdrew that offer, just days before the hearing.

On April 25, 2012, the Texas court ruled that respondent had engaged in the unauthorized practice of law by participating in Smith's lawsuit without having satisfied Texas' rules for pro hac vice admission and directed, among other things, that respondent file a complete pro hac vice application, with proper support, on or before May 3, 2012 or the court would enjoin her from further participation in the action. The order also awarded $10,000 in costs and fees,  jointly and severally assessed against respondent, her New York firm and plaintiff, payable to defense counsel. On May 11, 2012, the court enjoined respondent from further participation because she failed to file a complete pro hac vice application.

Respondent, through local counsel, appealed the district court's order of April 25, 2012 to the Court of Appeals for the Fifth District of Texas. The court dismissed the appeal on the grounds that, under Texas law, it was not subject to appellate review. The appellate court also ordered respondent to pay's costs in defending the appeal as sanctions for filing a frivolous appeal. In October 2012, the court granted defendant's motion for summary judgment dismissing the action and did not rule on respondent's motion to reconsider the prior order.

During these disciplinary proceedings, respondent acknowledged the Texas court's April 25, 2012 order but disputed that she had engaged in the unauthorized practice of law. Respondent also acknowledged that she had not paid the $10,000 and did not intend to do so because, in her view, she was not given a proper opportunity to appeal. These proceedings also brought to light two federal actions that respondent commenced against in Texas.

Respondent was admitted pro hac vice in one of the actions but not the other. The Committee argued that respondent intended to mislead when she testified at her deposition that she had been admitted pro hac vice in both actions. Respondent testified that she was also involved as counsel in actions pending in Pennsylvania and Florida, but was not admitted to practice law in these jurisdictions.

(Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Suspended Attorney Found In Contempt

One issue that we do not often see addressed in court opinions concerning bar discipline is compliance with orders of suspension.

In a case decided today, the Florida Supreme Court held an attorney in contempt for failing to comply with an earlier order of suspension in a guardianship

Townsend’s argument that he was not the attorney in the guardianship case, and that he was not required to notify the guardianship court of his suspension, is unreasonable. It is apparent that Townsend was the attorney in the case, even if he never filed a formal notice of appearance. Accordingly, we conclude that Townsend was required to notify the guardianship court of his suspension in case number SC07-81, and he failed to do so. Thus, we hold Townsend in contempt.

The referee had rejected a contempt finding on three alleged counts. The court agreed with the referee on two out of three and remanded for a sanction analysis on the sustained count. (Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judging Ethics In South Carolina

The South Carolina Advisory Committee on Standards of Judicial has issued several recent opinions.

A full-time magistrate may serve as vice-president of the alumni chapter of a college fraternity but should be careful to avoid support for invidious discrimination.

A probate judge may not serve on the advisory board of a local bank but can be on the board of a closely-held real estate company.

And when the judge's spouse is a political candidate

A  Circuit Court Judge wishes to be involved in a spouse’s political campaign. The  judge wants to attend candidate forums and debates, as well fund-raising and/or  non-fund raising activities for the spouse’s political campaign.  Additionally, the judge wants to be present  with the judge’s spouse on election night.   The judge also wants to have his or her name and/or picture, without  title, appear on the spouse’s campaign ads and fliers.


  1. A  judge may attend fundraising and/or non- fundraising activities of a spouse’s  political campaign.
  2. A  judge may attend a spouse’s candidate forums and debates.
  3. A  judge’s name and/or picture may appear on a spouse’s campaign ads and fliers,  provided that the judge’s title is not included.
  4. A  judge may be present on a spouse’s election night.

(Mike Frisch)

April 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Retaliation Against Former Client, Other Misconduct, Leads To Disbarment

An attorney who, among other things, violated his duty of confidentiality by placing his client's medical records in public pleadings has been disbarred by the District of Columbia Court of Appeals.

The key findings

The Board [on Professional Responsibility] accepted the Hearing Committee’s findings that respondent represented Ms. Nunnally in an employment discrimination suit from September 12, 2005, until she discharged him on November 28, 2008. In connection with that representation, respondent filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to Ms. Nunnally, neglected to file certain motions which effectively prevented Ms. Nunnally from presenting evidence for her retaliation claims, introduced Ms. Nunnally’s confidential medical records into the public record, and sought and received a six month postponement of Ms. Nunnally’s trial without her consent.

After Ms. Nunnally discharged respondent on November 28, 2008, he threatened her and refused to release her case file to her. She then filed a complaint against respondent with Bar Counsel and initiated an arbitration claim before the Attorney/Client Arbitration Board ("ACAB") seeking repayment of some of the fees she had paid him. In response, respondent submitted to Bar Counsel and ACAB inconsistent bills that he had never given Ms. Nunnally and that inflated what she owed him according to their initial fee agreement. After ACAB entered an award to Ms. Nunnally of $11,000 against respondent, he filed a civil suit against her in Superior Court on the basis of the same falsified billing records that ACAB had rejected. Respondent submitted similar falsified billing records to the Bankruptcy Court, where he filed another claim against Ms. Nunnally. Respondent repeatedly submitted Ms. Nunnally’s confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the attorney

...represented Tenedia Davis and her minor daughter in a personal injury action. Because respondent failed to identify any fact witnesses in the joint pretrial statement, he was unable to put any fact witnesses on at trial to establish that the defendant had caused Ms. Davis’s daughter’s injuries, and the court entered judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told this court at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

(Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Billing Fraud Charges Against Chicago Attorney

The Illinois Administrator has charged an attorney with the following

Between approximately 1991 and September 2013,  Respondent was a partner at a law firm ("the firm") in the firm’s Chicago  office. Between at least January 1, 2012 through July 31, 2013, Respondent was  the partner responsible for the preparation and submission of bills relating to  the firm’s representation of a large, publically-owned client ("the client") in  a series of matters, including an inquiry by a federal regulatory agency, a  series of related shareholder matters, and a lawsuit filed in federal court. The  amounts the firm billed the client on those matters were a function of the hours  worked by the firm’s attorneys ("the billers") and those billers’ hourly rates.

During the period set forth in paragraph one,  above, in preparing the bills relating to the client’s matters, Respondent  altered the firm’s internal records, including pre-bills (also called "pro  formas"), either by increasing the hourly times charges for individual billers,  by moving time from a biller at a lower hourly rate to a biller at a higher  rate, or by increasing the amount of time recorded by a biller. The result of  these actions was to increase the amount of fees billed to the client on the  final bills.

Between January 1, 2012 and July 31, 2013, the  firm’s billers recorded 19,092.3 hours on the client’s various matters. During  that same period, Respondent sent bills to the client that falsely stated that  the billers had spent 19,951.3 hours on the matters, an increase of 859 hours.  Respondent’s alterations to the firm’s billing records had the effect of  increasing the amount billed to the client by $251,863.

Respondent knew that his statements concerning  the amount of time spent by the firm’s billers, and about the value of their  services (referred to in paragraph three, above), were false, in that those  statements inflated both the amount of time purportedly spent by the firm’s  billers and the value of their services.

At no time did the client authorize Respondent  to charge it a premium above the amount determined by multiplying the billers’  hourly rate by the number of hours they worked on a matter, nor did it authorize  Respondent to move time between billers, to increase the hourly rates the firm  charged for the billers’ time, or to charge the client for more hours than the  billers actually worked.

In reliance on Respondent’s statements  concerning the time expended by the firm’s billers and the value of the services  provided by the firm, the client paid the amounts claimed as fees in the bills  it received from Respondent.

The complaint alleges violation of Rules 1.5 (fees) and 8.4(c) (dishonesty). (Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Attorney Alleged To Have Stolen From Daughter's Education Expenses Account

The North Carolina State Bar has filed charges against an attorney, alleging that he withdrew funds from an account that was to be held as custodian to pay solely for his daughter's education and related expenses.

The account was set up as part of a divorce settlement in 1994.

The attorney is alleged to have used $82,000 for his own purposes, including paying for a European vacation and elective plastic surgery for his (presumably) new spouse. (Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Desire To Adopt Leads To Lengthy Suspension

A Colorado Hearing Panel has ordered a three-year suspension in a rather unusual case involving false statements

[The attorney]  engaged in misconduct in the course of seeking to adopt her second cousin’s baby. She circumvented proper channels for the adoption by falsely listing her own husband as the birth father on the baby’s birth certificate, and she later filed a petition for stepparent adoption in which she referred to her husband as the birth father. She also counseled her husband to falsely aver that he was the birth father in a related filing.

As to sanction

In this case, Respondent flouted a cardinal principle: that lawyers must tell the truth in their professional and personal lives. She should answer for this misconduct by submitting to a significant sanction. But Respondent’s misconduct occurred as she was wrestling with painful personal circumstances, rather than in the course of representing a client. Moreover, her misconduct represents an aberration when viewed in light of her otherwise fine character and her commitment to using her legal training for the benefit of children in need. Under these circumstances, the Hearing Board determines that a threeyear suspension is the fitting sanction.

(Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Domestic Violence Draws Probation

More from Colorado

In February 2013, [attorney] Gillum and his girlfriend got into an argument after drinking together, and Gillum’s girlfriend decided to try to find a cab. Gillum drove after her in his car. He pushed her down, grabbed her hair, and kicked her two or three times on her shins. He then grabbed her purse and struck her across the face with it, causing a black eye and a lump on her head. Fortyeight hours later, after learning that the police were looking for him, Gillum turned himself in to police.

On March 26, 2013, Gillum pleaded guilty in Denver General Sessions court to one count of assault and one count of disturbing the peace, both misdemeanors. He received a twoyear supervised deferred judgment on both counts. Prior to the incident in question, Gillum had not hit the victim or threatened her with violence. Gillum has abided by the terms of his probation and the victim’s restraining order.

The agreed sanction was a stayed 60-day suspension and three years probation, which is quite lenient given the violence. (Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Attorney General To Suspended Attorney

 A disciplinary summary from the web page of the Colorado Supreme Court

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Edward T. Buckingham III (Attorney Registration Number 08218) for eighteen months. The suspension takes effect May 21, 2014.

Buckingham was the Attorney General for the Commonwealth of the Northern Mariana Islands. On February 20, 2014, he was found guilty of the following crimes: (1) use of public supplies, services, time, and personnel for campaign activities; (2) use of the name of a government department or agency to campaign and/or express support for a candidate running for public office; (3) three violations of misconduct in public office; (4) theft of services; and (5) conspiracy to commit theft of services. Buckingham’s sentences for these offenses ranged from six months to one year imprisonment, all suspended. He paid a total of $14,000.00 in fines and was placed on one year of unsupervised probation.

Through this conduct, Buckingham violated Colo. RPC 8.4(b), which proscribes criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

(Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: If Your Case Settles, Tell The Court

The New Jersey Appellate Division sharply criticized counsel who had failed to timely advise the court that the case had settled.

We were on the eve of filing a comprehensive opinion on the many issues raised in this appeal when, on April 9, 2014, respondent's counsel advised the matter had settled. Upon further inquiry, we learned the parties reached a settlement months ago. Despite our discretion to file an opinion when notified at such a late hour, we have decided not to file our opinion on the merits and now write to dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted.

But no sanctions

Because of the enormous amount of time needlessly expended in this matter, we have seriously considered the imposition of sanctions against both counsel pursuant to Rule 2:9-9, but instead have determined that the publication of this decision is sufficient deterrent to repetition. It is within our discretion to issue an opinion when notified of a settlement shortly before an opinion is scheduled to be released, and we have done so many times. We nonetheless dismiss this appeal.

(Mike Frisch)

April 23, 2014 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Not In Indiana

An Illinois attorney not barred in Indiana has agreed to an order barring him from practice in the Hoosier State.

The Indiana Supreme Court entered the order based on these facts

 Franciscan Alliance Inc. ("Franciscan") is a nonprofit corporation with its headquarters in Mishawaka, Indiana. Franciscan operates 11 hospitals in Indiana and two in Illinois. In late 2011, Respondent was hired by Franciscan to assist with obtaining payment for medical care provided to patients who had been injured in accidents.

Respondent furnished Franciscan hospitals with his letterhead stationery. The hospitals sent a letter using Respondent's letterhead and his firm's signature block ("Discharge Letter") to injured patients when they were discharged. The Discharge Letter stated that Franciscan had partnered with Respondent "to help you have insurance pay your hospital bills related to the accident." The Discharge Letter stated that this service was provided at no cost to the patient, that an experienced team of patient advocates and attorneys would work with the patient to gather relevant information, and that the team would then contact the proper parties to get the patient's hospital bills paid.

The Discharge Letter obscured the relationship between Franciscan and Respondent, as well as the purpose of Respondent's services, it implied that Respondent was offering the patient a service for which he would normally charge, and it created the impression that Respondent was offering to advocate on behalf of the patient even though Respondent was actually advocating on behalf of Franciscan.

If the patient did not respond to the Discharge Letter, Respondent's practice was to send a second letter, and if necessary, a third letter, with an enclosed questionnaire. In these letters, Respondent indicated that he was acting on behalf of the hospital that had retained his office.

Since the initiation of an investigation by the Commission, Respondent has ceased the use of the Discharge Letter. Respondent has formed Hospital Reimbursement Services Inc. ("HRS") to provide services to Franciscan, discharged patients now receive communications on Franciscan letterhead, and Respondent no longer identifies himself as a lawyer when communicating with patients and third parties in conducting HRS business.

The sanction

The parties propose the appropriate discipline is for Respondent to be indefinitely barred from acts constituting the practice of law in this state, including temporary admission, solicitation of clients, and identifying himself as a lawyer in the course of conducting HRS business in Indiana and/or on behalf of Indiana entities, until further order of the Court, plus the costs of this proceeding. The parties agree that HRS should not be barred from providing medical billing services to Franciscan as long as Respondent does so in circumstances that are distinct from providing legal services to clients.

(Mike Frisch)

April 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)