Friday, April 29, 2016

Why People Hire Lawyers

The Nebraska Supreme Court has held that a legal malpractice case may go forward

In 2011, the district court dissolved the marriage of Brenda R. Rice and Dale E. Rice. Attorney Terrance A. Poppe represented Brenda in the dissolution action. Later, Dale died and Brenda made a claim for the death benefits under life insurance policies owned by Dale. The court determined that Brenda was not entitled to the benefits, because she waived her beneficiary interest under the property settlement agreement. Brenda sued Poppe for legal malpractice, alleging that he had failed to advise her that the property settlement agreement waived her beneficiary interest in Dale’s life insurance policies. The trial court sustained Poppe’s motion for summary judgment, reasoning that Poppe had no duty to advise Brenda of the legal effect of an unambiguous agreement. We conclude that Poppe, the summary judgment movant, did not establish a prima facie case entitling him to judgment as a matter of law. We therefore reverse the judgment and remand for further proceedings.

The story

In August 2011, the district court dissolved Brenda and Dale’s marriage. The court approved the property settlement agreement and incorporated it into the decree.

Dale died a week later. Brenda tried to claim the death benefit for two term life insurance policies owned by Dale, only one of which, with a death benefit of $250,000, concerns this appeal. The personal representative of Dale’s estate argued that Brenda had waived her right to the death benefits in the property settlement agreement. The trial court agreed and ordered Brenda to withdraw her claim. Brenda appealed.

We affirmed the determination that Brenda had waived her interest as a beneficiary of Dale’s life insurance policies in Rice v. Webb.  There, we explained that divorce does not affect a beneficiary designation in a life insurance policy. But a spouse may waive a beneficiary interest in the divorce decree. Synthesizing paragraphs VI, IX, and X of the property settlement agreement, we concluded that Brenda unambiguously gave up her right to claim the death benefits...

As to potential malpractice

Brenda argues that Poppe committed malpractice by not asking what her and Dale’s intentions were concerning their life insurance beneficiary designations and failing to explain the effect that the property settlement agreement would have on those designations. She contends that the “intricate rules of construction which may render a written settlement agreement that has been incorporated into a decree ‘unambiguous’ to members of the Nebraska Supreme Court do not apply equally to the uninitiated layperson.”  Poppe responds that he had no duty to inform Brenda that she was waiving her beneficiary status, because the “fact she was doing so was readily apparent from the clear language of the Agreement.” 

 Poppe owed Brenda a duty to reasonably advise her about the property settlement agreement’s effect on her interests. And, as the summary judgment movant, he had the burden to produce evidence that he did not breach that duty. The general standard of an attorney’s conduct is established by law, but whether an attorney’s conduct fell below the standard in a particular case is a question of fact. Expert testimony is generally required to show whether an attorney’s performance conformed to the standard of conduct. An attorney moving for summary judgment must generally make a prima facie case by producing expert testimony that his or her conduct did not fall below the standard of care.

The court surveyed cases from other jurisdictions

These cases show that attorneys are not always insulated from malpractice liability because their clients read or ought to have read the documents themselves. Instead, they “stand only for the proposition that for purposes of determining when an action for alleged legal malpractice begins to run, a client must know what lay persons of ordinary intelligence are deemed to know.” We would not have discussed the statute of limitations at all in Interholzinger and Nichols if the fact that the plaintiffs signed the documents was an absolute bar to recovery. A rule that insulates attorneys from liability as a matter of law on the theory that clients ought to know what they are signing ignores the fact that laypersons often hire attorneys because they lack the knowledge and skills needed to understand the transaction.

We conclude that reasonable minds could disagree concerning whether Poppe’s failure to advise Brenda about the effect of the property settlement agreement on beneficiary designations was the proximate cause of Brenda’s loss.

(Mike Frisch)

April 29, 2016 in Clients | Permalink | Comments (0)

California Earthquake

Andrew Strickler at Law360 reports

California’s top disciplinary trial counsel, Jayne Kim, announced her pending resignation Thursday following a tumultuous five-year tour.

The resignation of the bar’s chief prosecutor comes despite a trustee vote in December approving Kim’s appointment for a second term. The bar said in a statement that she had previously voiced a desire to leave the Office of Chief Trial Counsel.

“Jayne has only stayed on as chief trial counsel this long because the board asked her to see us through a period of tremendous evolution and transformation,” said bar president David Pasternak. “Our new leadership team is now solidly in place and has profited tremendously from her steady hand at the helm of the OCTC.”

Kim, who was a state bar prosecutor before leaving to be an Assistant U.S. Attorney in Los Angeles, took the top counsel spot in 2011 under then-director Joseph Dunn.

Facing a disciplinary system with large case backlogs and pledges by Dunn to right the course, Kim promised a “zero/zero” goal of no backlogged disciplinary cases and a zero-tolerance approach to attorney disciplinary breaches.

But by the fall of 2014, Dunn had been fired and filed suit against executive director Craig Holden and the bar, alleging he was terminated for exposing a “massive cover-up” of ethics breaches and the removal of backlogged disciplinary cases from public records. The suit pointed to Kim as a central player in the alleged purge.

The bar later argued that an investigation and report prepared by Munger Tolles & Olson LLP found serious misconduct justifying Dunn's firing, including misleading the board about travel expenditures.

Last summer, Dunn lost his bid to keep his state court action out of arbitration. That led to a decision by a JAMS arbitrator earlier this month thatgutted Dunn’s claims.

While Dunn’s Labor Code claim against the bar was tossed with leave to amend, arbitrator Hon. Edward A. Infante found a breach of fiduciary duty claim related to the firing was futile.

Infante also tossed with prejudice Dunn’s allegations that Holden and the board of trustees breached their fiduciary duty to not leak information from a confidential report to the press. He granted Dunn leave to amend the same claim against the bar.

Dunn’s attorney, Mark J. Geragos of Geragos & Geragos PLC, said then that his client would take advantage of the leave to amend and said the defendants would be at a scheduled arbitration in August.

Assistant Chief Trial Counsel Gregory Dresser will serve as acting chief trial counsel during the search for a new chief.

“This is the right time for me to move on,” Kim said. “In declining to seek reappointment I leave with a strong sense of accomplishment and confidence that the bar is on the right track to become an exemplary model of a mission-driven agency.”

— Additional reporting by Dani Meyer and Michael Lipkin. Editing by Ben Guilfoy.

Casey Sullivan at Findlaw's California Case File had a story on January 2016 reappointment of Ms. Kim. (Mike Frisch)

April 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Consecutive Suspension For Neglect Of Court-Appointed Clients

The Wisconsin Supreme Court has suspended  for an additional year an attorney already suspended for two years

Attorney Hicks focused his practice primarily on representing indigent defendants in criminal cases through appointments either by the Office of the State Public Defender (SPD) or the court in which the case was pending. After acknowledging the appointment, Attorney Hicks often ignored his clients' requests for information for substantial periods of time and often failed to follow through on necessary actions for the clients' defense. When a grievance was subsequently filed with the OLR, Attorney Hicks either failed to provide any initial response to the OLR or he failed to respond to the OLR's requests for further information.

The referee considered his explanation

he had alleged that during 2012 and early 2013, he had been suffering from significant health problems. Attorney Hicks asserted that those medical conditions had prevented him from working as many hours as he needed to represent his clients properly. The referee found, however, that aside from his personal testimony at the sanction hearing, Attorney Hicks had not offered any evidence to support his claims that he had suffered severe medical problems and that those conditions had been a cause of his failures to serve his clients properly.

The referee rejected Attorney Hicks' claim that his medical conditions had prevented him from meeting his ethical obligations to his clients. The referee noted that there was no testimony that Attorney Hicks had been forced to take a leave of absence or had been unavailable in his practice for extended periods of time. On the other hand, there were extended periods of time during these representations when Attorney Hicks had little or no contact with his clients. Further, Attorney Hicks also again claimed in his plea of no contest that he had an overwhelming caseload during the relevant time period. The referee noted that Attorney Hicks had been able to handle many other criminal cases in which there were court hearings. Given that fact, the referee could not accept that Attorney Hicks' medical conditions had actually caused the lapses in diligence and communication for the four clients whose cases were the subjects of this proceeding.


we conclude that an additional one-year suspension is an appropriate level of discipline to impose in this case. We make that one-year suspension consecutive to the two-year suspension imposed in Hicks II.

(Mike Frisch)

April 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 28, 2016

Workers' Comp Fee Schedule Unconstitutional In Florida

The Florida Supreme Court has ruled unconstitutional mandatory fee schedules in workers' compensation matters

This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process. See art. I, § 9, Fla. Const.; U.S. Const. amend. XIV, § 1.


The right of an injured worker to recover a reasonable prevailing party attorney’s fee has been a key feature of the state’s workers’ compensation law since 1941. Through the 2009 enactment of a mandatory fee schedule, however, the Legislature has created an irrebuttable presumption that every fee calculated in accordance with the fee schedule will be reasonable to compensate the attorney for his or her services. The $1.53 hourly rate in this case clearly demonstrates that not to be true.

We conclude that the mandatory fee schedule is unconstitutional as a violation of due process under both the Florida and United States Constitutions. Accordingly, we answer the rephrased certified question in the affirmative, quash the First District’s decision upholding the patently unreasonable fee award, and direct that this case be remanded to the JCC for entry of a reasonable attorney’s fee.

Justice Canady dissented

The fee schedule in section 440.34, Florida Statutes, embodies a policy determination by the Legislature that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer or carrier is required to pay to the claimant. This policy violates none of the constitutional provisions on which the petitioner relies. Accordingly, I dissent from the majority’s invalidation of this statutory provision.

In reaching the conclusion that the statute violates due process, the majority fails to directly address the actual policy of the statute. Instead, the majority assumes—without any reasoned explanation—that due process requires a particular definition of “reasonableness” in the award of statutory attorney’s fees. The definition assumed by the majority categorically precludes the legislative policy requiring a reasonable relationship between the amount of a fee award and the amount of the recovery obtained by the efforts of the attorney. Certainly, this legislative policy may be subject to criticism. But there is no basis in our precedents or federal law for declaring it unconstitutional.

As did Justice Poulson

Applying this well-established precedent, the facial challenge at issue here fails, even assuming that adequate and reasonable attorney’s fees are constitutionally required. There are some workers’ compensation cases where “the amount of benefits is substantial, but the legal issues are simple and direct, and do not require exceptional skill, knowledge, and experience.” Murray, 994 So. 2d at 1057 n.4. In these high pay-off, low-effort cases, the statutory fee schedule could provide reasonable compensation for a prevailing claimant’s attorney. After all, section 440.34(1), Florida Statutes (2009), provides that the attorney’s fee must equal 20 percent of the first $5,000 in benefits, 15 percent of the next $5,000, 10 percent of the remaining during the first 10 years of the claim, and 5 percent after 10 years. Therefore, because there are a set of circumstances under which the attorney’s fees provision could be constitutionally applied, the provision is facially constitutional under our precedent.

April 28, 2016 | Permalink | Comments (0)

Attorney's Estate May Proceed Against Restaurant

The estate of an attorney who died in a single car accident has made sufficient averments to survive in its Dram Shop action against the establishment that served him liquor before the fatal drive home, according to a decision of the Massachusetts Supreme Judicial Court.

Herman T. Bayless, the plaintiff's decedent, was killed in a one-car accident after leaving a restaurant owned by the defendants where he had consumed alcoholic beverages. The plaintiff alleged that prior to his decedent's fatal motor vehicle accident, the defendants exhibited negligent, wilful, wanton, and reckless conduct by selling and serving alcoholic beverages to the decedent while he was obviously intoxicated, and that such conduct was the proximate cause of the decedent's death...

we conclude that the plaintiff's affidavit based upon information and belief is sufficient to satisfy the procedural requirement under G. L. c. 231, § 60J, and the plaintiff has sufficiently raised a legitimate question of liability.

The attorney had been the subject of a bar disciplinary action based on a criminal conviction

  Bayless was indicted on charges of worker's compensation fraud, in violation of G. L. c. 152, § 14, and larceny over $250 in violation of G. L. c. 266, § 30, for continuing to accept worker's compensation benefits arising from the death of his wife after remarriage to a different woman. Bayless' s wife died in 2001 on the job as a Department of Corrections officer, and he remarried in 2004. On September 13, 2010, he tendered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) (Alford), and by agreement with the Commonwealth, a Superior Court judge continued the case without a finding for three years subject to probation conditions. Bar Counsel argues that a so-called Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and consequently, places the burden on Bayless to show cause why he should not be temporarily suspended from the practice of law pending final disposition of any disciplinary proceedings. S.J.C. Rule 4:01, § 12(4), as appearing in 425 Mass. 1313 (1997). For the reasons discussed below, I conclude that an Alford plea qualifies as a conviction under the definition provided by Rule 4:01, section 12(1), and refer the matter to the Board of Bar Overseers to proceed as they see fit under these circumstances.

The court denied a request for interim suspension in the disciplinary matter.

there are a litany of personal mitigating circumstances that counsel against immediate suspension. In a twist of unfortunate irony, Bayless and his new wife were divorced by decree in Worcester Probate and Family Court. Bayless represents that he has struggled not only emotionally, but also financially since the death of his wife, and now even more so since, upon dissolution, he has retained only his assets prior to his most recent marriage. He has four children, and financially supports at least three of them (one son is serving in Afghanistan). As a solo practitioner, the toll of even a temporary suspension would be quite severe.

(Mike Frisch)

April 28, 2016 | Permalink | Comments (0)

Trojan War

A tri-county panel of the Michigan Bar Discipline Board has imposed a suspension of an attorney

Respondent did not appear at the hearing and was found to be in default for her failure to file an answer to the formal complaint. Based on respondent's default, the hearing panel found that respondent engaged in undignified or discourteous conduct toward the tribunal, in violation of MRPC 3.5(d); failed to treat others in the legal process with courtesy and respect, in violation of MRPC 6.5(a); engaged in conduct that is a violation of the criminal law, where such conduct reflects adversely on the lawyer's fitness to practice law, in violation of MRPC 8.4(b); and, engaged in conduct that violates the criminal law of a state, in violation of MCR 9.105(5). The panel also found that respondent violated MRPC 8.4(a) and (c) and MCR 9.104(1)-(4).

 Troy Patch had a story

An attorney in Troy faces felony charges, accused of assaulting Macomb County Sheriff's deputies at the county courthouse last fall stemming from a bitter dispute with her ex-husband.

Cynthia Lardner, 53, formerly of Sterling Heights, was arraigned last week on on one count of assault on a police officer causing injury, five counts of assaulting a police officer and/or resisting arrest and one count of disturbing the peace, according to court documents. Lardner pleaded not guilty through her attorney, Elias Muawad. She is free on a $5,000 personal bond.

Macomb County Sheriff's Department Lt. John Michalke said that Lardner became disorderly during an Oct. 10 hearing for her custody case with a Friend of the Court referee. One deputy was treated for minor injuries, Michalke said.

The charge of assault causing injury is punishable by up to four years in prison while the five additional resisting/assault counts are punishable by up to two years in prison.

Lardner will return to court for pretrial on Sept. 4. According to the State Bar of Michigan website, Lardner is a therapist, counselor and educational consultant who was licensed as an attorney in 1984.

Court records show she and Michael Lardner married in 1994 and that Michael Lardner filed for divorce in 2002. A personal protection order sought in 2004 by Cynthia Lardner against her ex-husband was denied by a judge. 

Court records show that the couple have three children together; a 17-year-old daughter, a 15-year-old son, and a 14-year-old daughter.

(Mike Frisch)

April 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Stayed Suspension For Attorney Who Cooperated In Bribery Investigation

Dan Trevas has a summary of a disciplinary case on the web page of the Ohio Supreme Court

Willoughby Attorney Hector G. Martinez Jr., who admitted to participating in an attempted bribery scheme connected with Cleveland Attorney Anthony O. Calabrese III, received a six-month stayed suspension from the practice of law from the Ohio Supreme Court today.

The Supreme Court voted 4-3 to suspend Martinez for six months, and stayed the suspension on the condition he engage in no further misconduct.  In a dissenting opinion, Justice Terrence O’Donnell stated he would have suspended Martinez’s license for one year.

Participated in Bribery Scheme
In its per curiam decision, the Court found that Martinez, the Office of Disciplinary Counsel, and the Board of Professional Conduct stipulated to the facts that led to charging Martinez with four counts of violating the rules governing attorneys, and they agreed to the mitigating circumstances presented on Martinez’s behalf.

In November 2011, a woman referred to in court documents as “L.A.” retained Martinez to obtain a civil protection order against Thomas Castro who had sexually assaulted and stalked her. Castro consented to the order, and Martinez and L.A. met with a detective to discuss the criminal assault. Castro was later indicted on several counts of rape and sexual battery involving L.A. and several other women.

With L.A.’s authorization, Martinez informed the prosecutor that L.A. did not want to pursue charges against Castro, and his representation came to an end.  He later contacted L.A. to inform her that Castro had pleaded guilty in his criminal case.

Before Castro was sentenced, his attorney, Calabrese, spoke to Martinez about L.A. Calabrese at the time was under federal indictment for crimes of racketeering, conspiracy, bribery, and fraud. He told Martinez that Castro was willing to settle any civil claims that L.A. might bring if she would write a favorable letter to the sentencing judge.

 At the time, L.A. had not discussed a civil lawsuit against Castro with Martinez. But based on his conversation with Calabrese, Martinez believed that Castro would pay L.A. a monetary settlement if she would request that the sentencing judge not send Castro to jail.  After he informed L.A. that another Castro victim had received a settlement, she authorized him to pursue one on her behalf.

L.A. rejected the initial settlement offer indicating she intended to write “a bad letter” to the sentencing judge.  After Martinez informed her that Castro was increasing his offer, L.A. asked Martinez if it was illegal for Castro to offer her money before his sentencing.  He told her that it was not illegal as long as it was an offer to settle civil claims, but that it would be illegal if it was in exchange for dismissing criminal charges.

L.A. informed Martinez that the prosecutor thought the offer was illegal, and that she and law enforcement authorities wanted to go through with it so that Castro could be charged with bribery. Martinez then sent L.A. a letter terminating his representation and stated reasons for doing it that were not true.

Martinez was criminally charged for the bribery attempt and agreed to testify against Calabrese, and others involved before a grand jury in exchange for a misdemeanor charge.

Calabrese subsequently pleaded guilty in federal court to engaging in corrupt activity with respect to L.A. and other Castro victims. He was sentenced to nine years in prison, and disbarred by the Ohio Supreme Court. Two other Castro attorneys that Martinez testified against, Marc Doumbas and Tim Marshall, were also convicted in the bribery attempts and indefinitely suspended by the Court.

Martinez pleaded no contest to obstructing official business, and was sentenced to 10 days in jail, which were suspended, three months of probation, 25 hours of community service, and was fined $750. Based on the charges, the board found Martinez violated four rules including committing an illegal act that reflects adversely on a lawyer’s honesty and trustworthiness, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

When considering sanctions for Martinez, the Court found relevant mitigating factors included the absence of a prior disciplinary record, his cooperative attitude, his good character and reputation apart from this episode, and the criminal sanctions imposed on him.

“The board found him to be a very impressive witness who was contrite and truly remorseful for his misconduct and that his demeanor and testimony demonstrated that he has learned the necessary lessons from this experience,” the opinion stated.

The Court ordered a stayed suspension, but stated that if Martinez engages in further misconduct, he will be forced to serve the entire six-month suspension.

Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy and William M. O’Neill joined the majority opinion.

Dissent Wanted More Severe Sanction
In his dissent, Justice O’Donnell wrote that Martinez knowingly participated in a scheme to bribe a crime victim, and after the victim contacted the prosecutor about it, he abruptly terminated his representation while making untrue statements to her.

Justice O’Donnell noted other cases where an attorney has attempted to “thwart the administration of justice,” disbarment has been an accepted sanction, and the Court has indefinitely suspended attorneys who attempted bribery. He maintained that the six-month stayed suspension was insufficient for conduct involving bribery because Martinez’s conduct not only corrupts the judicial process, but also had the potential of presenting false information to a sentencing judge.

“Any actions that subvert the adversarial process call for a sanction stronger than a stayed suspension from the practice of law,” he wrote.

Chief Justice Maureen O’Connor and Justice Judith L. French joined his dissent.

2015-1633. Disciplinary Counsel v Martinez, Slip Opinion No. 2016-Ohio-2709.

(Mike Frisch)

April 28, 2016 in Bar Discipline & Process | Permalink | Comments (1)

What We Had Here Was A Failure To Communicate

The District of Columbia Court of Appeals has ordered a stayed suspension of 30 days and probation in a case involving intentional failure to seek the client's lawful objectives and failure to communicate.

Notably, the court refers to the prosecutor's office as both Disciplinary and Bar Counsel in its opinion.

I have attended several oral arguments at the court since the name change where all participants - judges and counsel- stumble over the proper name of the office. The name change - purportedly done to avoid confusion - has led to (at least in the short term) the precisely opposite result.

The court rejected the attorney's claimed due process violation of inadequate notice

We think it implausible that a member of the Bar would be confused as to which facts in the specification, for example, "Respondent did not communicate to Ms. Norris that her case was in danger of being dismissed or what steps she may have undertaken to avoid the dismissal of her case," were being alleged as a basis for showing violations of the Rules. That is especially so in light of the fact that Francis, if he were actually confused about which facts constituted violations, did not ask Bar Counsel for a Bill of Particulars.

Also rejected was the asserted inadequate proof of a failure to communicate

we reject Francis’ argument that the Board erred in finding that he violated the rules on client communication. We note that he never communicated with Norris during his representation of her. Instead, Francis insists it was [co-counsel] Stewart’s duty, not his, to communicate with the client, see Rules 1.4 (a) and (b), arguing that communication by local counsel with lead counsel satisfies the client communication requirement. In support of that claim he argues that in cases where there is both local counsel and lead counsel, communications from local counsel to lead counsel satisfy the requirements of client communication because lead counsel, in turn, is tasked with relaying local counsel’s messages to the client. However, he cites no authority in support of this proposition. Instead, Francis poses to the court hypotheticals such as: 1) Does local counsel have a duty to duplicate all communications from lead counsel to the client?; and 2) In large firms, where there are multiple attorneys on a single case, must each attorney directly communicate with the client to avoid being in violation of the Rules? But neither of those questions are before us, nor do they have any applicability to this case. We think it sufficient that here Francis was the only counsel of record—he was the only person receiving notice of filings from the court, and no other attorney possessed that information. In short, Francis had exclusive possession of the information needed by Norris in order for her to make informed decisions about her case, and therefore Francis had the obligation to take steps to keep Norris informed, either by directly informing her or by communicating the information to Stewart to be communicated to Norris. Francis did not take such steps in this case.

 When the lawyer asks the hypotheticals, the court is not required to answer. (Mike Frisch)

April 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 27, 2016

Attorney Fees Awarded For "Soap Opera, Embarrassing, Absurd" Case

A person who brought a civil protection proceeding for an improper purpose can be made to pay attorneys fees, according to a decision of the Oklahoma Supreme Court.

The dispositive questions before this court are whether the plaintiff's petition for protective order, filed pursuant to 22 O.S. Supp. 2013 §60.2,was frivolous and victimless, and whether attorney fees and costs should have been awarded. We hold that the matter was frivolously filed and victimless, and that attorney fees and costs should have been awarded.

The real motivation - and the complex human drama - was that the alleged victim wanted to help the accused's ex-wife get custody of children

Jimmy Lee Pearman, Jr. and Theresa Marie Pearman filed for divorce on July 9, 2012, in the District Court of Cleveland County, Oklahoma. The decree dissolving the marriage was memorialized on June 24, 2013, however, the parties continued their litigation over matters of child custody and support of their two children. On September 12, 2014, Pearman was awarded exclusive custody of the children and Theresa was granted standard visitation.

The record reflects that Theresa met Tess, a 22 year-old college student, in early 2012, while getting a facial at a salon. The two women became friends. Theresa introduced Tess to Pearman when he helped Theresa after her car had broken down. Tess and Pearman began dating by mid-July of 2013. Tess described their relationship as one of "exclusively dating" beginning in August of 2013. According to her, this relationship caused a serious rupture in her relationship with Theresa. Text messages reflect that she had "been" with both of them. Tess and Theresa had an altercation over Tess's relationship with Pearman that was so violent that the police were called. The incident occurred in front of the children, while Tess was living with Theresa and dating Pearman.

On April 29, 2014, another event occurred at Pearman's home which is the nucleus of this appeal. The course of the evening has been described in very different terms by Pearman and Tess, although there is no testimony by him in the record. According to Tess, she was dropped off at his home by a friend after a night of drinking. The record reflects that Tess had a DUI, and a history with alcohol abuse.

According to Tess, she went into the home using a garage door opener Pearman had given her, unlocked the security system, took off her clothes except for a t-shirt and underwear, and went to sleep in one of the children's rooms. When she woke up, she went to his locked bedroom, unlocked the door with a screwdriver and walked in on him and another woman, Taylor. She says they exchanged words, that he attacked her, pushed her into the wall, shoved her face into the front door and punched her in the eye. After the incident, she stayed in his house until he took her home the next morning. The next day, she went to the Moore, Oklahoma police station and filed a report.

Text messages from Tess, and Theresa, as well as testimony from both the child custody case and this cause, suggest a different story. According to testimony and text messages, Tess was drinking in Edmond on the night in question. Throughout the entire evening she was texting Pearman, calling him over and over, wanting to come over, until it reached the point where he threatened to block her number if she did not stop. She admitted that she was intoxicated and that he never agreed for her to come to his house. According to Taylor, she and Pearman arrived at his home to find the garage open, all the lights on, a half empty bottle of vodka on the counter with a soda next to it, and Tess passed out naked in Pearman's bed.

Pearman and Taylor moved her into another bedroom to let her "sleep it off." However, she came into Pearman's bedroom twice during the night and he walked her back to the other bedroom. The third time she picked the locked door with a screwdriver, jumped on the bed, and started calling Taylor names. Tess followed Taylor into the kitchen, threw an unopened soda can at her head and then charged her. Taylor punched Tess in the face in self defense. At the trial she testified that Pearman did not hit Tess.

The record contains an extensive series of text messages between Tess and Theresa, beginning on May 3, 2014, just four days after the alleged attack in Pearman's home. Tess filed a police report complaining about his alleged assault which is not included in the record. A text message sent by Tess to Theresa states that she would not have filed a police report if it were not for the ongoing custody fight. The record does not indicate that criminal charges were ever actually filed against Pearman.

The messages imply that Theresa directed Tess to file the police report in Cleveland County, the site of the custody appeal. The messages also show that Theresa spoke with her attorney in her custody case about the filing of the Petition for Protective Order/VPO. Theresa advised Tess that the key points in filing the petition for VPO were Pearman's felony record, previous acts of domestic violence, possession of an illegal weapon and her fear. Several of the texts referenced the police report that she filed, noting that she was very intoxicated, and that she did not fully remember the incident.

The texts indicate that Tess and Theresa had rekindled their friendship with a shared goal of assisting Theresa in her custody battle against Pearman through the filing of a petition for VPO. Examples of some of the messages include:

[From Tess to Theresa]

"Just trying to help you. If I'm not creating anything but trouble, then it's you-all's thing and had no affect on me. Just trying to help you Theresa Marie."

[From Theresa to Tess]

"Custody will not include you at this point. I don't want to call you as a witness, which is why I need the VPO."

Other texts show that: 1) Theresa believed that filing the VPO would be good for the custody case and that it would be good for Theresa and her girls; and 2) the VPO would be a huge break for Theresa.

Tess then filed for the protective order

At the hearing, Theresa's attorney also represented Tess without charge. Most of the hearing concerned many text messages between Theresa and Tess regarding the VPO and their friendship and sex lives. Because of concerns about attorney-client privilege, the text messages were examined by both attorneys during a recess. Pearman's attorney used the text messages to establish the motive for filing VPO as merely an attempt to affect the ex-wife's child custody case. The court recessed so that the lawyers could review the text messages together. After recess and review of the messages, the attorney for Tess stated that:

You know, we could go and have a full hearing and you can decide whether a protective order is warranted. But the bottom line is there were texts from my client admitting, look, this happened, so on and so forth, but if it weren't for your custody case and your kids, I wouldn't even bother with a VPO.
So, you know, with that in mind, regardless, it shows that, hey, I don't need a protective order. So I advised my client to dismiss and that's what we're going to ask the Court for.

Subsequently, the trial court granted the motion to withdraw and dismissed the case. When asked to determine the matter frivolous and award attorney fees and costs, the trial court, remarked that, while the whole matter was a soap opera, embarrassing, and absurd, the ex-husband did not show that it was frivolously filed. Consequently, the trial court refused to award attorney fees and costs. A journal entry was filed on July 18, 2014.

The court here

The clear weight of the evidence was that the petition for protective order was filed for the purpose of harming Pearman in his custody litigation with his former wife. The trial court abused its discretion in failing to find that the filing by Tess was frivolous. Because the petition for protective order was withdrawn, the matter, pursuant to 22 O. S. 2013 § 60.2, had no victim as a matter of law. Because this cause was both frivolous and victimless, the trial court should have awarded attorney fees and costs against Tess.

We recognize the importance of a VPO and that its purpose is obviously aimed at helping to stop violent and harassing behavior and to protect a person or their family from the person causing harm. The Legislature also recognizes this purpose by waiving filing fees so that anyone who feels threatened can legally pursue a VPO without regard to monetary resources. At the same time, VPOs are not to be used to harass or for other reason than their intended purpose. The Legislature also recognizes this by allowing court costs and attorney fees to be recovered by either party in the event the VPO was sought for an unsavory or frivolous purpose. Under the facts of this cause, the purpose of helping to stop violent and harassing behavior was not the purpose for which this VPO was primarily sought. Accordingly, the cause is reversed and remanded to the trial court to make that award and determine the appropriate amount of attorney fees, court costs and filing fees to award.

(Mike Frisch)

April 27, 2016 | Permalink | Comments (0)

A Short Career At The Bar

An attorney admitted in April 2010 has consented to disbarment by the Pennsylvania Supreme Court.

The issues as set forth in charges

This matter concerns Respondent's neglect of client matters , unauthorized practice of law while suspended, failure to respond to ODC's numerous DB-7 Requests for Respondent's Position, and failure to appear pursuant to a Pennsylvania Supreme Court Subpoena to produce documentation.

In addition to the client-related misconduct, he failed to report a conviction

On September 26, 2014, Respondent pled guilty to driving under the influence and was sentenced to six months Intermediate Punishment Plan.

 Finally, he had practiced while on administrative suspension. (Mike Frisch)

April 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

North Dakota Liberal On Judicial Campaign Issues

The ethics of judicial campaigning in the modern media environment is addressed in a new opinion of the North Dakota Judicial ethics Advisory Committee which concludes

The North Dakota Judicial Ethics Committee has concluded that a judicial candidate may use electronic social media to further his or her campaign so long as that use does not violate the North Dakota Rules of Judicial Conduct. The candidates are cautioned to be aware of the limitations discussed in this opinion.

The Committee is also of the opinion that a sitting judge involved in a judicial election may wear his or her robe in connection with the campaign.

 After discussing the views of committees in other jurisdictions

The North Dakota Judicial Ethics Advisory Committee takes the more liberal position that the candidate may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate. Depending on the specific context a candidate asking for the reader of a social media page to “like” or “share” the page is not necessarily a request for an endorsement or publicly stated support. For example, a “like” of a candidate’s page on Facebook allows one to subscribe to later posts and events from the page and generally to follow the progress of the election campaign. Public posts on social media pages are similar to and pose the same issues as a newspaper or television ad soliciting private support for the candidate.

 A caveat

The candidate should be cautious when inviting people to “like” or “share” a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions or public endorsement. The candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.

On appearing in robes

One further concern to be addressed in this opinion is whether a sitting judge running for another term may pose in a judicial robe for the purpose of promoting his or her campaign. The issue is that such action would be using State resources in an inappropriate manner. In North Dakota, that question is rather easily answered. The North Dakota Supreme Court addressed the matter of a justice running for reelection to the North Dakota Supreme Court was videotaped wearing his judicial robes and sitting in a courtroom. Saefke v. VandeWalle, 279 N.W.2d 414 (ND 1979) The Court concluded that the voters of the state were “not misled or unduly influenced” by the justice in his robe pictured in a courtroom. Id. At 417. The Court further concluded that to argue that the use of the courtroom and the electricity consumed for the time it took to videotape was an illegal use of state resources was frivolous.

(Mike Frisch)


April 27, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Lawyer Suspended For Felony Conviction In Death of His Mother

An attorney convicted of a felony in connection with the death of his 88-year-old mother has been suspended by the Virginia State Bar.

On April 21, 2016, the Virginia State Bar Disciplinary Board summarily suspended William Henry Yongue IV’s license to practice law based on his January 7, 2016, conviction of a felony in North Carolina. Yongue was ordered to appear before the board on May 20, 2016, to show cause why his license should not be further suspended or revoked.

The Roanoke Times reported on the December 2014 crime and charges of first degree murder as did the in this post

Relatives say for a week they tried to contact Imogene Yongue but her son always had a reason why she wasn't available. Monday afternoon, after her grandson called police to do a welfare check, officers found Jean Yongue dead. 

"The body is so decomposed that they won't be able to show the body," her cousin, Juanita Yongue-Eison said. "And they say she was shot in the head."

Now, relatives are thinking about the days when they tried to talk to Jean Yongue.

Her cousin, Juanita, said she called the house last Tuesday but Jean Yongue's son answered the phone and said his mother was sleeping. He reportedly told other relatives she was away. At the end of the week, Jean Yongue's grandson went to the house to check on his grandmother. 

"When he got in, he spoke with his dad and said where is Mama Jean? And he said I don't know. He said his daddy looked real strange so he left," Juanita said.

The family would later request police do a welfare check. No one expected what officers discovered. Questions are mounting in their heads about how and when she actually died.

"Where was she? How did she survive. Oh my God... I just..." Juanita said, as her voice trailed off. 

Imogene Yongue blazed such a trail in life that Duke University called upon her and her late husband to tell their stories of living in the Jim Crow South. The 88-year-old mother and educator who lived a life of distinction, died, police say, at the hands of her son.

The motive, police sources say, was one of the oldest in the books – money.

Monday afternoon, Charlotte-Mecklenburg Police arrested and charged William Henry Yongue with the murder of his mother, who was also known as Jean.

Police sources say William Yongue, a practicing attorney in Virginia, stole money from his mother. According to sources, he allegedly shot and killed her to cover up the thefts.

"I never saw that side of my cousin, Billy. I've never thought anything about him. I just - he's very quiet," Juanita Yongue-Eison said.

Officers were called to do a welfare check on a person at home in the 6100 block of Vernedale Road, off of N. Sharon Amity Road. When police arrived, they say they found Imogene Yongue inside the home. Medics pronounced her dead at the scene.

Yongue saw a lot in her life.

A Spelman graduate, Imogene Yongue would go on to to become an educator. She and her late husband were some of the first African American graduates of Virginia Tech to earn doctorates.

Duke University would call on the Yongues to become part of a documentary that told the story of life in the Jim Crow South. Dr Yongue offered reflections of growing up during the segregated era.

Friends told WBTV that Jean Yongue will be remembered for sharing her knowledge and wisdom.

“Understanding her responsibilities as a member of the community,” long-time friend Natalie Beard said. “Understanding the importance of interacting with others, and always making sure that she is responsible for making sure that someone understands the importance of interacting of others.”

For members of Charlotte's First United Presbyterian Church where Yongue worshipped, her death - especially the way she died - stings.

“You mourn as a sense of loss, but you mourn in a sense of faith,” a friend said.

The accused killer, her son, is sitting in the Mecklenburg County jail and is scheduled to go before a judge on Friday.

"She didn't deserve that," Juanita Yongue-Eison said of her cousin's murder. For relatives, the holiday week has been especially difficult. Juanita Yongue-Eison said Jean Yongue always had a Christmas celebration, and most likely would have had one again this year. 

Christmas paused Monday afternoon for the Yongue family when Jean Yongue's body was found. By Christmas, they were still struggling to grasp what happened to their beloved Jean.

"Her god daughter called me and said let's get together and try to make this a happy Christmas and rejoice her but I don't.. I'm not going over there. I don't think."

Juanita said she and Jean had become like one - always in and out of each other's homes. "We were so close, it's unreal." 

Now, reality has left her only memories. 

"Think about the good times," Juanita said. "Every time I would go to the beach - Jean and I would be right together." 

I have not found a link to any report on the conviction. (Mike Frisch) 

April 27, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Tuesday, April 26, 2016

The American Rule In New Jersey

The New Jersey Supreme Court has held  in a matter summarized in its headnotes

The issue in this appeal is whether, in prosecuting a fiduciary malfeasance action against an attorney who intentionally violates an escrow agreement, the prevailing beneficiary may recover attorneys’ fees.

 Plaintiff Peter Innes and his wife, Maria Jose Carrascosa, were involved in a contentious divorce and custody battle over their daughter Victoria. Innes is a citizen of the United States and a resident of New Jersey. Carrascosa is a Spanish national and a permanent resident of New Jersey. They were married in Spain in 1999, and Victoria, their only child, was born in New Jersey in 2000. Victoria is a dual citizen of the United States and Spain. During the course of their domestic relations litigation, the parties entered into an agreement whereby Carrascosa’s attorneys would hold Victoria’s United States and Spanish passports in trust to restrict travel outside of the United States with Victoria without written permission of the other party (the Agreement).

Carrascosa’s attorney at the time the Agreement was entered into was Mitchell A. Liebowitz, Esq. Innes was represented by third-party defendant Peter Van Aulen. Carrascosa discharged Liebowitz and retained defendants Madeline Marzano-Lesnevich, Esq., and Lesnevich & Marzano Lesnevich, Attorneys at Law. Defendant Marzano-Lesnevich received Carrascosa’s file from Liebowitz, including the Agreement and Victoria’s United States passport. In December 2004, Carrascosa obtained Victoria’s United States passport from defendants, and used the passport to remove Victoria from the United States to Spain on January 13, 2005.

Innes filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for Victoria’s return to the United States and traveled to Spain for a hearing on the petition. The Spanish court denied the petition and ordered Victoria to remain in Spain until age eighteen. Meanwhile, the parties’ domestic relations litigation continued in New Jersey. The Family Part judge entered a judgment of divorce and granted Innes sole legal and residential custody of Victoria. The judgment gave Carrascosa ten days to bring Victoria back to the United States, but Carrascosa failed to comply with the order.

In October 2007, Innes filed a complaint in the Law Division against defendants, Van Aulen, and Liebowitz. Innes alleged, in part, that they improperly released Victoria’s United States passport to Carrascosa and intentionally interfered with the Agreement. Innes requested relief, including damages and attorneys’ fees. Before trial, the court granted Van Aulen and Liebowitz’s motions for summary judgment and sua sponte severed the thirdparty complaint against Carrascosa. However, the trial court denied defendants’ motion for summary judgment, concluding that defendants owed a duty to Innes, and also denied defendants’ motion to exclude any claim for counsel fees.

At the conclusion of trial, the only issue submitted to the jury was whether defendants were negligent in releasing Victoria’s United States passport to Carrascosa. The jury determined that defendants were negligent and awarded damages to Innes and Victoria. The trial court denied defendants’ motion for a new trial and their motion for judgment notwithstanding the verdict, but granted Innes’ motion to amend the judgment for counsel fees and costs. The judge explained that an award of attorneys’ fees was appropriate because “the jury decided . . . that the defendants deviated from the standard of care and thereby breached a duty owed to Peter and Victoria Innes when they gave Ms. Carrascosa Victoria’s passport[]. As such, the traditional rule that warrants an award of fees in legal malpractice cases extends to the matter at bar.”

Following defendants’ appeal, the Appellate Division concluded that awarding Innes attorneys’ fees was appropriate even though no attorney-client relationship existed between Innes and defendants. In doing so, the panel concluded that defendants intentionally violated the Agreement.

The Supreme Court granted defendants’ petition for certification, limited to the issue of “whether the attorney-defendants can be liable for attorneys’ fees as consequential damages to a non-client under Saffer v. Willoughby, 143 N.J. 256 (1996).” 220 N.J. 37 (2014). 


Defendant attorneys can be held liable for counsel fees if, as trustees and escrow agents for both Innes and Carrascosa, they intentionally breached their fiduciary obligation to Innes by releasing Victoria’s United States passport to Carrascosa without Innes’ permission...

Departures from the “American Rule” are the exception and the Court has never held that a non-client is entitled to a fee-shifting award for an attorney’s negligence. Packard-Bamberger, Lash, and Niles Trust involved fiduciaries who, by their intentional misconduct, violated their fiduciary duties and inflicted damage upon the beneficiaries. Consistent with that case law, a prevailing beneficiary may be awarded counsel fees incurred to recover damages arising from an attorney’s intentional violation of a fiduciary duty. Here, defendants were holding Victoria’s United States passport as trustees and escrow agents and were thus fiduciaries for the benefit of both Carrascosa and Innes. Defendants, however, breached their fiduciary obligation to Innes and released Victoria’s United States passport to Carrascosa without Innes’ written permission. Accordingly, consistent with post-Saffer jurisprudence, Innes would be entitled to counsel fees if there had been a finding that defendants, as attorneys, intentionally breached their fiduciary responsibility to Innes, regardless of the existence of an attorney-client relationship. The jury, however, did not make a specific finding that defendants intentionally breached the Agreement. As the Appellate Division concluded, there is substantial support in the record from which to conclude that defendants’ misconduct was intentional. Nevertheless, the Court must remand the case to the trial court for it to decide whether defendants intentionally violated their fiduciary duty to Innes when they breached the Agreement. (pp. 19-22)

Justice LeVechechia, joined by Judge Cuff, dissent

express[ing] the view that what started as a limited, common law exception to the American Rule has been altered through a series of cases, which now culminates with today’s majority decision, dealing the American Rule yet another blow by expanding awards of attorneys’ fees to non-clients of attorneys in escrow settings.

(Mike Frisch)

April 26, 2016 | Permalink | Comments (0)

Litigation Privilege In Maryland

The Maryland Court of Appeals has decided a case involving the litigation privilege

The litigation privilege immunizes a party for statements made in a judicial proceeding and is fundamental to the courts’ truth-finding mission. We have previously analyzed this privilege only in the defamation context. Today we address two distinct questions that arise out of a dispute between a city and a design engineer’s settlement agreement to, among other things, not disparage one another. Can the litigation privilege immunize a party from a claim for breach of a non-disparagement clause? If so, can a party waive that privilege? We examine these questions to determine whether a trial court correctly granted a motion to dismiss a complaint for failure to state a claim for breach of contract.

Judge Adkins for the majority reviews in detail the history of the privilege and concludes

there is nothing in the Settlement Agreement addressing whether the City could discuss OBG’s design work or portray OBG in a negative light in the CDG Lawsuit, litigation the parties clearly anticipated. Applying a rebuttable presumption against waiver of the litigation privilege, we conclude that the City did not waive the litigation privilege in the non-disparagement clause, and the Circuit Court correctly granted the City’s Amended Motion to Dismiss.

Judge Harrell concurred and dissented

Although I agree with the Majority opinion’s determinations that: (1) the case is not moot (Maj. Slip op. at 8-11); (2) the City’s non-preservation argument is without merit (Maj. Slip op. at 11-13); (3) the litigation privilege is not absolute (Maj. Slip op. at 15-16; (4) the litigation privilege may apply to causes of action sounding in contract (Maj. Slip op. at 16-18); and, (5) the litigation privilege may be waived, which analysis is undertaken with a rebuttable presumption of non-waiver as a threshold (Maj. Slip op. at 24-26), I dissent from the judgment that the Court of Appeals’s affirmance of the trial court’s grant of the City’s motion to dismiss was correct as a matter of law.

April 26, 2016 | Permalink | Comments (0)

Sins of Husband Lead To Suspension Of Trusting Wife

The Georgia Supreme Court has imposed a three-month suspension in a matter where the attorney had sought a public reprimand but agreed to discipline up to a six-month suspension.

In Georgia, the State Bar and an accused attorney can submit a voluntary petition for discipline with a proposed range of sanctions. The court can choose within the range or reject the petition. That process for streamlining bar discipline worked here. 

The violations related to misconduct on the part of her lawyer-spouse.

In her petition, Franklin, who has been a member of the Bar since 1987, asserts that she worked most of her career as an in-house bank lawyer, but resigned in 2005 to care for her children, one of whom has serious health issues. Afterward, she occasionally did some part-time legal work from home, operating her law practice under the name “The Law Offices of Mary Ellen Franklin” and primarily negotiating loan modifications. In January 2009, this Court ordered that Franklin’s now-deceased husband, Bradley J. Taylor, who was also an attorney, receive a Review Panel Reprimand and a six-month suspension for various violations of the Rules of Professional Conduct arising from his 2005 misappropriation of a client’s funds to his own use, see In the Matter of Taylor, 284 Ga. 867 (672 SE2d 653) (2009). Franklin asserts that Taylor told her that he had been reinstated to practice law in July 2009, but she admits that she never checked the status of his license for herself. In the fall of 2009, Taylor and Franklin decided to share office space and Taylor registered the Franklin Taylor Law Group with the Georgia Secretary of State.

In March 2011, Franklin apparently signed a complaint which was filed on behalf of a client, who had been a long-time client and friend of Taylor. Although Franklin recalls the client, she does not recall signing the complaint or agreeing to represent the client, who had apparently hired Taylor to represent his interests with regard to certain construction and remodeling work. Although Franklin’s signature was on the original complaint, she contends that her signature was forged on other documents associated with the lawsuit. Ultimately, Taylor settled the client’s claims for $80,000, with the client’s knowledge and consent, but Taylor apparently misappropriated the settlement funds to his own use, arranging to have them wired into his separate, non-law firm, real estate company escrow account. Franklin states that she was unaware of Taylor’s deceit until November 2012, at which point an attorney representing the client summoned her and Taylor to a meeting where he allegedly threatened them with criminal prosecution. She has since learned that Taylor remained suspended after July 2009, and that he had repaid to the client approximately $25,000 of the money he misappropriated. Taylor passed away in January 2014, and Franklin asserts that she has been seeing doctors and therapists who have diagnosed her with clinical depression.

The conduct violated Rule 5.3(b). 

In an unrelated matter involving neglect, the court rejected a petition for voluntary discipline.  (Mike Frisch)

April 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Hawai'ian Punch

An attorney who engaged in multiple ethics violations has been disbarred by the Hawai'i Supreme Court.

Respondent Castroverde engaged in prohibited conflicts of interest with multiple clients, representing three separate violations of HRPC Rule 1.7(a), by representing both the sellers and the buyers of the home at 722 Lalani Circle, in Wailuku, Maui, including by drafting and overseeing the execution of the Agreement of Sale, where the interests of the parties were directly adverse to each other...

We conclude Respondent Castroverde misappropriated client funds, in violation of HRPC Rule 1.15(c), by removing from his client trust account, between November 30, 2007 and December 18, 2007, at least $6,258.91 of the buyers’ funds to which he was not entitled, removing between December 18, 2007 and January 25, 2008 at least $12,912.91 of the buyers’ funds to which he was not entitled...

We conclude Respondent Castroverde violated HRPC Rule 1.5(a) by charging an unreasonable fee as follows: Pursuant to HRS § 449-3 (1996), Respondent Castroverde, as an attorney, was exempt from the regulation of escrow deposits if he did not charge an escrow fee. However, we find Respondent Castroverde did charge an escrow fee, as the buyers paid Respondent Castroverde $10,625.00 to arrange the transaction and escrow, and paid monthly charges of $104.17 and $5.00 to administer the escrow. By charging said fee, Respondent Castroverde was obligated to comply with the requirements of HRS Ch. 449 and, as he did not comply with those requirements and therefore could not justify the escrow fees he charged, those fees were unreasonable, in violation of HRPC Rule 1.5(a)...

With regard to a loan from the sellers to Respondent Castroverde of the $50,000.00 down payment held in Respondent Castroverde’s client trust account, Respondent Castroverde violated HRPC Rule 1.8(a) by engaging in a business transaction with the sellers where the transaction and terms on which Respondent Castroverde acquired an interest were not fair or reasonable to the sellers, where the loan was made without giving the sellers a reasonable opportunity to seek the advice of independent counsel regarding the transaction, and where Respondent Castroverde did not obtain from his clients, the sellers, written consent to the inherent conflicts.

By misappropriating all but, at most, $5.17 of the $50,000.00 for his use and benefit, Castroverde violated HRPC Rule 1.15(c). With regard to a separate $61,000.00 loan made by one of the sellers to Respondent Castroverde, Respondent Castroverde violated HRPC Rule 1.8(a) by entering into the $61,000.00 loan transaction with his client, the seller, where the transaction and its terms were not fair and reasonable to the seller, where Respondent Castroverde did not fully disclose in writing to the client the transaction or its terms, and did not provide the client with a reasonable opportunity to consult independent counsel concerning the transaction.

By misappropriating all but, at most, $5.17 of the borrowed $61,000.00, Respondent Castroverde violated HRPC Rule 1.15(c).

He also failed to cooperate in the bar investigation. (Mike Frisch)

April 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 25, 2016

Shattered Glass, Tragic Death, No Liability

The Tennessee Court of Appeals has affirmed a conclusion that a defendant tobacco shop was not liable for a tragic death on its premises

 While visiting Gatlinburlier Tobacconist, a retail store located in the Mountain Mall in Gatlinburg, Tennessee, Carol Singletary unexpectedly fainted and fell into an antique glass display case located in the store. The glass in the display case shattered and  a triangular shard of glass pierced Ms. Singletary‟s chest, lacerating her aortic arch and causing her to hemorrhage. Tragically, Ms. Singletary died of her injuries...

 Defendants filed a motion for summary judgment, contending there were no genuine issues as to any material facts and that they were entitled to judgment as a matter of law. In support of the motion for summary judgment, Defendants submitted a statement of material facts; an affidavit of Charles Michael Ottinger, a thirty-year employee of Gatlinburlier; the depositions of Ira Lapides, Bryan Myers, and Plaintiff; as well as three photographs of the business premises. Plaintiff filed a response and argued "there are genuine issues of material fact for a jury to determine whether or not the Defendants owed a duty to Ms. Singletary and whether or not the nonshatterproof case was the proximate cause of Ms. Singletary's injuries and subsequent death."

 Res ipsa did not save the plaintiff's case

Defendants provided proof via deposition and affidavit that antique display cases were not uncommon in retail stores in Gatlinburg, and that the display case had been purchased in 1981 or 1982 and was about thirty years old at that time. “Over the years the glass in the display case had withstood collisions from baby carriages, children leaning against and pushing on it and an impact from a „purse the size of a refrigerator.‟” The case‟s glass was cleaned regularly and “never appeared to be fragile or insubstantial.” Mr. Lapides had no expectation that the glass would break. Furthermore, “nothing about the condition of the store caused Ms. Singletary to fall.”

...Plaintiff emphasizes Defendants‟ "superior knowledge" that the glass was nonshatterproof. Plaintiff also admits that nothing about the store caused Ms. Singletary to fall. Defendants have presented evidence that the glass had survived many years and many collisions while showing no signs of fragility. Mr. Lapides had no expectation that the glass would break.

While we are sympathetic to Plaintiff for the tragic loss of his wife, we must agree with the trial court that the incident was not a reasonably foreseeable probability. No duty existed. Consequently, there is no negligence and no liability.

(Mike Frisch)

April 25, 2016 | Permalink | Comments (0)

No Retroactive Suspension For Cheating Business Partners

The Wisconsin Supreme Court has accepted a referee's finding of misconduct by a previously-disciplined attorney but declined to grant retroactive credit.

The court imposed a prospective one-year suspension.

We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law that Attorney Schoenecker engaged in professional misconduct, and that the seriousness of this misconduct warrants a one-year suspension of Attorney Schoenecker's law license. We part ways with the referee in holding that, given the timing and seriousness of Attorney Schoenecker's misconduct, the suspension of his law license should not be retroactive, but rather should be made effective as of the date of this order.

The attorney was suspended in 2011 and has not been reinstated.

The OLR's amended complaint alleged, and the parties ultimately stipulated, that the misconduct in this case concerns Attorney Schoenecker's involvement in a business partnership that he entered into in 2012 with two other individuals, M.M. and T.H. Attorney Schoenecker, on behalf of himself and his partners, established a limited liability company named GameMaster, LLC. Attorney Schoenecker drafted and filed the organizing documents, including the Articles of Organization and the Limited Liability Company Operating Agreement.

He admitted the violation

 In so doing, Attorney Schoenecker agreed not to dispute the OLR's charge that, as Chief Executive Manager of GameMaster, LLC, he failed to account clearly or timely for capital contributions made by other members, withdrew excessive funds from GameMaster, LLC, and charged personal expenses to GameMaster, LLC, all without preapproval from his business partners, in violation of SCR 20:8.4(c). Attorney Schoenecker and the OLR jointly recommended that the court order a one-year license suspension imposed retroactively to the date he became eligible for reinstatement from his earlier disciplinary suspension, August 15, 2014, so that his earliest reinstatement date would be in August 2015. The stipulation did not explain the basis for the retroactive nature of the suspension.

No retroactive suspension

we have previously held that a retroactive suspension is generally not favored in the absence of some "compelling circumstance," and we find no such compelling circumstance here...

Attorney Schoenecker dishonestly handled business funds well after his 2011 suspension for what we described as "a disturbing series of illegal and dishonest actions, which were designed to benefit him financially to the injury of his client, his law firm employer, and his creditors."

The court split costs between the parties. (Mike Frisch) 

April 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Resumed Romantic Relationship No Basis For Interlocutory Suspension

The Upper Canada Law Society Tribunal denied the Law Society's motion for an interlocutory suspension to replace interim conditions imposed on the attorney by an earlier order.

The Law Society brings this motion for an order varying the Order of the Law Society Tribunal – Hearing Division (“the first hearing panel”) dated June 1, 2015. The Law Society asks for a full interlocutory suspension of the licence of the Respondent Lawyer, Maria Marusic, to replace the interlocutory licence restrictions imposed by the June 1, 2015 Order. 

The alleged changed circumstances involve the attorney's conduct in relation to a longtime romantic partner who was suspended 

The Respondent was a partner with the Windsor firm Shulgan Martini Marusic LLP (“SMM”) until it dissolved in early January 2015. Claudio Martini was a partner of SMM. After SMM dissolved the Respondent continued practising law under Marusic Law LLP, in the same premises previously occupied by SMM. 

Mr. Martini was found to have engaged in professional misconduct in failing to serve two clients. It was found that Mr. Martini deceived two clients regarding steps taken in their legal proceedings. The October 8, 2014 reasons describe the deceit as it pertains to one of the clients as “sophisticated and elaborate”, involving a “conscious and deliberate attempt by the Lawyer to lead the client to believe that certain steps had taken place”. Mr. Martini was suspended for seven months.

Then, there were new allegations about Martini

The  Law Society’s investigation into the alleged misappropriation of trust funds held by the now-defunct law firm of SMM are described in the first hearing panel’s reasons of May 6, 2015. The investigation started in December 2014 when Mr. Martini admitted that he used $50,000 of trust funds held for one client, Company B, to pay another client pursuant to a fake settlement. The investigation then revealed that over a two-year period from November 2012 to December 2014, monies were withdrawn from trust funds held for Company B on 12 occasions, contrary to unfulfilled trust conditions. Most of the withdrawals went to SMM as fees.

The Respondent and Mr. Martini were involved in a romantic relationship from 2001 until March 2015.

The Respondent co-signed three trust cheques with Mr. Martini through which SMM paid itself fees totaling $1,264,108.87 when the conditions for release of the funds had not been met. The Respondent admitted to co-signing the trust cheques but said that she assumed that the trust conditions for the release of the settlement funds had been met. In describing her evidence, the first hearing panel indicated (at para. 37):

The Respondent says that she, like many others, was a victim of Mr. Martini’s deceitful ways. She described him as being able to win and maintain the trust of many intelligent and otherwise highly careful and perceptive people. She makes the point that the misconduct established in Mr. Martini’s previous discipline proceeding did not include any suggestion that he had misused trust funds. She deposed that she is “shocked and appalled” that she may have been asked to sign cheques transferring amounts from trust when there remained unfulfilled trust conditions, and that her personal relationship with Mr. Martini has ended.

 After that

  In December 2015 the Law Society filed a Notice of Motion for an order varying the June 1, 2015 Order. The grounds for the motion are that there is fresh evidence or a material change in circumstances that warrants the requested variation. In particular, Law Society alleges that the Respondent has associated with and/or facilitated the practice of law by Mr. Martini, whose licence is suspended.

The fresh evidence involves allegations that the attorney facilitated Martini's unauthorized representation of one Client X.

In cross-examination the Respondent answered questions about her relationship with Mr. Martini.  At the time of the hearing in May, she had recently ended her romantic involvement with him. That relationship resumed on August 20, 2015.

Her practice is located in premises that Mr. Martini helped her find. He works in the same building with an office one floor above her. She testified that she had experienced difficulties in securing a new office given the impending Law Society investigation and that this was the only practical alternative for her.

She received many, if not all, of Mr. Martini’s files when his licence was suspended. All of those files have been fully transferred.

We learned that the Respondent is the lawyer for the company Mr. Martini works for, although this was not part of the evidence given under oath.

The majority

The first issue to consider is whether or not there has been a material change in circumstances since the first Order. We find that the fact that the Respondent has resumed her romantic relationship with Mr. Martini, which is not in dispute, is a material change in circumstances. It is material because the fact that they were not in a romantic relationship was specifically noted in the reasons on the first interlocutory motion. 

The Applicant submits that this resumption of relationship has resulted in the Respondent facilitating the practice of law by Mr. Martini whose licence is suspended.  The Applicant submits that this provides reasonable grounds to believe that there is a significant risk of harm to members of the public and to the public interest in the administration of justice if her licence is not suspended pending the outcome of her discipline matters...

We find that hearing from the respondent reduces our concerns about the effect of the resumption of her relationship with Mr. Martini. We do not believe, based on the evidence presented, that the Respondent presents a significant risk to the public or public confidence in the legal profession which cannot be addressed through the restrictions on her practice already in place and the one further restriction we will impose.

The evidence is that the Respondent is a competent and capable lawyer. Although she maintains she was tricked by him into improperly co-signing the trust cheques in the original matter, there was no evidence presented that she is a psychological pawn of Mr. Martini.

A significant factor in considering whether or not a full suspension is appropriate is that the new investigation is at a very early stage and the estimate of when it will be completed is unknown. Ms. Marusic’s many clients are also members of the public.

We do have a concern arising out of the location of the Respondent’s new offices.  The Rules specify that a lawyer shall not occupy or share office space with a suspended lawyer or paralegal. Mr. Martini should not be in the office of Marusic Law under any circumstances, whether professional or social. This promotes public confidence. Any meetings in his role as a client should not be held in the offices of Marusic Law.

Chair Sophie Martel dissented

I am satisfied that had the first hearing panel been aware of the new allegations – involving not just the Respondent’s integrity regarding trust monies but her integrity in respect of a suspended lawyer she acknowledged was a “liar and a fraudster” – it would have ordered a full interlocutory suspension rather than an Order imposing restrictions on the Respondent’s trust and general accounts. I agree with the Law Society’s submissions that the integrity concerns are so significant that additional restrictions on the Respondent’s practice, such as the one imposed by the Majority, will not address the risk to the public and the public administration of justice. The integrity concerns are now multi-fold. They include the integrity concerns raised before the first hearing panel where there were reasonable grounds to believe that the Respondent was directly involved in the misuse of trust funds totaling well over one million dollars. They also include the new integrity concerns related to Mr. Martini’s involvement in the Client X matter.  An interlocutory suspension is the only order likely to reduce the risk to members of the public.

The Windsor Star had this report.

Update: Law Times had a story today with some information about Client X

The current proceedings arise with regards to “Client X,” a self-described “very successful lawyer” and “vulture,” whom Martini represented since 2010 in litigation dating back to 1984.

After Martini was suspended, Marusic took carriage of the file, which they discussed on several occasions.

A multi-week trial was scheduled to start in May 2015 in Ottawa, but a settlement was reached in July.

Martini met with Client X and Marusic at an Ottawa condominium building where both she and Client X rented units.

At a meeting in Client X’s unit, Martini hand-wrote an authorization to settle the lawsuit, including the fees Marusic’s law firm would receive. The fees amounted to 54 per cent of the settlement.

Client X subsequently hired new lawyers and is disputing the fees.

Law Society prosecutors submitted the Client X case provides compelling evidence Marusic has been facilitating the practice of law by Martini, in contravention of Law Society regulations.

 I never have seen the phrase "took carriage" of a client file. (Mike Frisch)

April 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 24, 2016

A Friend Can Be An Agent: Privilege May Survive

An opinion from the North Carolina Court of Appeals

This appeal presents the question of whether a party to litigation who engages her friend as an agent to participate in meetings with her attorney waives the protections of attorney-client communications and attorney work product for information arising from the meeting with her attorney and any work product created with the assistance of or shared with the agent as a result of those meetings. Based on our caselaw and the record here, the answer in this case is no.

The procedural posture

Defendant-Appellant Melissa Berens (“Defendant”) appeals the interlocutory order denying her request for a protective order and her motion to quash Plaintiff Appellee Michael Berens’s (“Plaintiff’s”) subpoena duces tecum to Brooke Adams Healy (“Ms. Adams”) compelling production of all documents relating to Ms. Adams’s communications with Defendant; her communications with the Tom Bush Law Group (“the law firm”), the firm representing Defendant in her divorce; and her communications with any third party regarding “one or more members of the Berens family” and the legal proceedings that are the subject of the underlying divorce case. On appeal, Defendant argues that Plaintiff’s subpoena to Ms. Adams seeks information protected by the attorney-client privilege and by the work product doctrine because Ms. Adams was Defendant’s agent. Consequently, according to Defendant, Ms. Adams’s presence during Defendant’s meetings with her attorney did not waive the privileges nor did her involvement in the preparation of materials for litigation defeat the privileges.

The court 's analysis

Plaintiff argues that Ms. Adams was not functioning in the capacity of an agent but was “merely Defendant-Appellant’s friend” and that the presence of a friend during attorney-client communications and giving her access to work product defeats the claim of privilege under our state’s established caselaw. Defendant argues that Ms. Adams’s presence during and access to attorney client communications and work product as a “friend, agent, and trusted confidant” did not destroy the attorney-client privilege or work product doctrine because Ms. Adams was acting as Defendant’s agent.  In support of this argument, Defendant cites the written confidentiality agreement providing that Ms. Adams was acting as her “agent and personal advisor to specifically assist her in this litigation” and that Ms. Adams’s presence and involvement in attorney-client communications “is necessary for the protection of [Defendant’s] interest.”

Defendant does not contend, and did not contend before the trial court, that she and Ms. Adams had an attorney-client relationship. Rather, she contends that because Ms. Adams was her agent for purposes of this litigation, the privileges and protections arising from her attorney-client relationship with the law firm within the context of the confidentiality agreement remained intact despite the sharing of attorney communications and work product with Ms. Adams...

In failing to address the confidentiality agreement and other evidence of the agency relationship between Defendant and Ms. Adams, the trial court misapprehended the law regarding the extension of the attorney-client privilege and the attorney work product doctrine to communications with a client’s agent within the context of the litigation and confidentiality agreement.

The error below

The trial court failed to conduct the essential analysis as to whether the affidavit, confidentiality agreement, and other evidence established an agency relationship. We are aware of no caselaw, nor has Plaintiff cited any authority, that being a client’s “good friend” and being a client’s agent are mutually exclusive. Nor does our caselaw prohibit a non-practicing attorney from acting as an agent for purposes of assisting another person in communications with legal counsel. Our holding would be the same if Ms. Adams had been a friend trained as an accountant, a psychologist, or an appraiser who agreed to assist with the litigation without charge. Consequently, we must reverse the trial court’s order concluding that the attorney-client privilege does not apply in this case.


Plaintiff’s subpoenas requested all documents relating to all of Ms. Adams’s communications with Defendant, all documents relating to her communications with the law firm, and all documents relating to her communications with any third party regarding the ongoing legal proceedings during a specified time period. While we have held that the record evidence established an agency relationship between Ms. Adams and Defendant, it is unclear whether all the requested materials fall within the scope of the attorney-client privilege by satisfying the five-factor Murvin test. For example, communications between Ms. Adams and third parties outside the law firm may not fall within the protection of the attorney-client privilege. Therefore, we must remand for the trial court to determine whether the attorney-client privilege applies to the requested communications, using the five-factor Murvin test and considering Ms. Adams as Defendant’s agent. Unless the trial court can make this determination from other evidence such as a privilege log, it must conduct an in camera review of the documents...

We also are unable to determine based on the limited record whether the documents requested, or any of them, are subject to the work product doctrine. This determination is necessary only for documents which Defendant asserts are work product and which the trial court concludes are not protected by the attorney-client privilege.

(Mike Frisch)

April 24, 2016 in Clients | Permalink | Comments (0)