Tanya Fultz
Ethics
September 5, 2010
State Farm accuses Denny Hecker of fraud
The once bigger than life automobile mogul Denny Hecker is not the great all American car dealer he wanted us all to believe. He is far from that. Denny Hecker is not only left dealing with the State and Federal Government, but he is being sued by other companies that have dealt with his unscrupulous ethics. One of these Companies is State Farm Mutual Insurance Company.
State Farm Filed a suit in Arizona in September, accuses Denny Hecker”s Advantage Rent-A-Car Company and Southwest-Tex Leasing subsidiary of submitting bills from third party auto-accident appraisers and body shops that failed to show Hecker's industry discounts on rates and prices. State Farm also accuses Hecker of selling damaged cars for inflated prices and yet billing State Farm for total losses. State Farm is demanding more than $1 million in damages for "hundreds of fraudulent claims."
Southwest-Tex has denied the allegations. Advantage Rent-A-Car which had a fleet of 15,000 cars used to be a nationwide retail fleet, filed for bankruptcy protection in December. A huge chunk of the fleet was sold to Hertz car rental while the rest is waiting to be liquidated.
Of the 26 car dealerships that Denny Hecker owned and operated 25 of them have already been closed down along with his leasing fleets and mortgage operations.
Hecker is being investigated by the state for possible sales tax evasion, and civil fraud for diverting $148 million in funds from 6 of Denny Heckers Companies prior to filing for Bankruptcy and other charges are still being looked at being filed. To access this article click this link : http://www.startribune.com/business/49608407.html?elr=KArks:DCiUHc3E7_V_nDaycUiD3aPc:_Yyc:aU7DYaGEP7vDEh7P:DiUs
To access other articles on the unethical business practices of Denny Hecker Click on one of the following links:
http://www.twincities.com/ci_15975518?nclick_check=1
http://www.google.com/search?q=U.S.+v.+denny+hecker&hl=en&rlz=1T4GGIH_enUS225US225&prmd=o&ei=TxGETNOmB8qTnQfQ3rGWAQ&start=10&sa=N
http://www.google.com/search?sourceid=navclient&aq=0h&oq=&ie=UTF-8&rlz=1T4GGIH_enUS225US225&q=state+farm+v.+denny+hecker
Thursday, September 23, 2010
Malicious lawsuits and Disciplinary Actions
Case: Office of Lawyer Regulation v. Alan D. Eisenberg (2010)
Website: http://www.wicourts.gov/services/public/lawyerreg/statuspublic/eisenberg.pdf
Facts: Attorney Alan Eisenberg was disciplined four times in his career ranging from 1966 to 2007, the last case resulting in this decision. Attorney Eisenberg allegedly participated in misconduct arising from his representation of client W.D. in 2000. W.D. was acquitted of second-degree recklessly endangering safety, battery, and disorderly conduct. The day after the client was acquitted, Attorney Eisenberg filed a civil complaint on behalf of his client, W.D., against M.D., his client’s estranged wife. W.D. and M.D. were in the process of divorce, which Attorney Eisenberg also represented W.D. In the civil complaint, M.D. was alleged to falsify statements to the police causing false arrest of W.D. and malicious prosecution. Then, having committed perjury in her testimony in the criminal case against W.D, defaming W.D.’s character, thereby ruining his reputation. On the day of the pretrial conference for the divorce proceeding, Attorney Eisenberg approached M.D.’s lawyer, Brad Wilcox, to serve his client with the summons and complaint for the civil suit, then exclaimed that M.D. was a “liar and a perjurer” repeatedly. Attorney Eisenberg then provided a copy of the complaint to the local newspaper and relayed a story about the jurors from the criminal case “stormed the judge’s chambers and asking that M.D. be prosecuted for perjury”. Based on this information provided by Attorney Eisenberg, the story was published. M.D. then retained Attorney Raymond Krek for her defense. He filed an answer to the allegations in the complaint and also filed counterclaims against W.D. The civil case against M.D. was eventually dismissed. M.D. and W.D. then were ordered mediation for their divorce case at Attorney Eisenberg’s urging. However, on the day of the mediation, Attorney Eisenberg did not show up and W.D. was granted a default judgement. Attorney Eisenberg then appealed that judgement, but it was dismissed. Attorney Krek then filed a motion for relief against Attorney Eisenberg under Wisconsin Statute 802.05 and 814.025.
Issue: This court must determine if Attorney Eisenberg participated in misconduct per Wisconsin Statute 802.05 and 814.025 by bringing the frivolous and malicious lawsuit again M.D. in the name of his client, W.D.
Rule of law: Wisconsin Statute 802.05 and 814.025
Holding: Attorney Eisenberg was found guilty of malicious prosecution against M.D. thru his frivolous lawsuit regarding defamation and ruining W.D.’s reputation and his harassment of M.D. through intimidation and his cross examination during hearings
Case: Office of Lawyer Regulation v. Alan D. Eisenberg (2010)
Website: http://www.wicourts.gov/services/public/lawyerreg/statuspublic/eisenberg.pdf
Facts: Attorney Alan Eisenberg was disciplined four times in his career ranging from 1966 to 2007, the last case resulting in this decision. Attorney Eisenberg allegedly participated in misconduct arising from his representation of client W.D. in 2000. W.D. was acquitted of second-degree recklessly endangering safety, battery, and disorderly conduct. The day after the client was acquitted, Attorney Eisenberg filed a civil complaint on behalf of his client, W.D., against M.D., his client’s estranged wife. W.D. and M.D. were in the process of divorce, which Attorney Eisenberg also represented W.D. In the civil complaint, M.D. was alleged to falsify statements to the police causing false arrest of W.D. and malicious prosecution. Then, having committed perjury in her testimony in the criminal case against W.D, defaming W.D.’s character, thereby ruining his reputation. On the day of the pretrial conference for the divorce proceeding, Attorney Eisenberg approached M.D.’s lawyer, Brad Wilcox, to serve his client with the summons and complaint for the civil suit, then exclaimed that M.D. was a “liar and a perjurer” repeatedly. Attorney Eisenberg then provided a copy of the complaint to the local newspaper and relayed a story about the jurors from the criminal case “stormed the judge’s chambers and asking that M.D. be prosecuted for perjury”. Based on this information provided by Attorney Eisenberg, the story was published. M.D. then retained Attorney Raymond Krek for her defense. He filed an answer to the allegations in the complaint and also filed counterclaims against W.D. The civil case against M.D. was eventually dismissed. M.D. and W.D. then were ordered mediation for their divorce case at Attorney Eisenberg’s urging. However, on the day of the mediation, Attorney Eisenberg did not show up and W.D. was granted a default judgement. Attorney Eisenberg then appealed that judgement, but it was dismissed. Attorney Krek then filed a motion for relief against Attorney Eisenberg under Wisconsin Statute 802.05 and 814.025.
Issue: This court must determine if Attorney Eisenberg participated in misconduct per Wisconsin Statute 802.05 and 814.025 by bringing the frivolous and malicious lawsuit again M.D. in the name of his client, W.D.
Rule of law: Wisconsin Statute 802.05 and 814.025
Holding: Attorney Eisenberg was found guilty of malicious prosecution against M.D. thru his frivolous lawsuit regarding defamation and ruining W.D.’s reputation and his harassment of M.D. through intimidation and his cross examination during hearings
Student Name: Mary Ngeru
Link for opinion: http://www.lexisnexis.com.proxy
Title: California: 2010 Conflict of interest
Plaintiffs, a company and an individual, sued defendants, an arbitrator and an arbitration organization, alleging five separate causes of action, all of which arose out of the alleged failure of the arbitrator to disclose a certain conflict of interest during the appointment process. A dispute had arisen between plaintiffs and a construction company. Plaintiffs alleged that defendants committed fraud because they failed to disclose the arbitrator's romantic relationship with the opposing counsel's sister in the underlying arbitration proceeding. The trial court sustained defendants' demurrer without leave to amend. (Superior Court of the City and County of San Francisco, No. 484081, Peter J. Busch, Judge.)
The Court of Appeal affirmed the judgment. The court concluded that the common law absolute immunity for quasi-judicial acts applied to the misconduct alleged in the complaint, thereby precluding plaintiffs' civil lawsuit for damages against defendants. Any claimed misconduct by the arbitrator in association with the failure to make a required disclosure at the inception of his selection was sufficiently associated with the arbitration process itself to justify the application of arbitral immunity.
A person serving as an arbitrator pursuant to an arbitration agreement has statutory and ethical duties to comply with certain disclosure requirements. Code Civ. Proc., § 1281.9, subd. (a), mandates that a person proposed to serve as a neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.
Code Civ. Proc., § 1281.85, subd. (a). Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Standard 6(d), addresses what relationships must be disclosed by a proposed arbitrator. The disclosure includes situations where the arbitrator or a member of the arbitrator's immediate family has or has had a significant personal relationship with any party or lawyer for a party.
Labels for the post: legal ethics, conflict of interest
Link for opinion: http://www.lexisnexis.com.proxy
Title: California: 2010 Conflict of interest
Plaintiffs, a company and an individual, sued defendants, an arbitrator and an arbitration organization, alleging five separate causes of action, all of which arose out of the alleged failure of the arbitrator to disclose a certain conflict of interest during the appointment process. A dispute had arisen between plaintiffs and a construction company. Plaintiffs alleged that defendants committed fraud because they failed to disclose the arbitrator's romantic relationship with the opposing counsel's sister in the underlying arbitration proceeding. The trial court sustained defendants' demurrer without leave to amend. (Superior Court of the City and County of San Francisco, No. 484081, Peter J. Busch, Judge.)
The Court of Appeal affirmed the judgment. The court concluded that the common law absolute immunity for quasi-judicial acts applied to the misconduct alleged in the complaint, thereby precluding plaintiffs' civil lawsuit for damages against defendants. Any claimed misconduct by the arbitrator in association with the failure to make a required disclosure at the inception of his selection was sufficiently associated with the arbitration process itself to justify the application of arbitral immunity.
A person serving as an arbitrator pursuant to an arbitration agreement has statutory and ethical duties to comply with certain disclosure requirements. Code Civ. Proc., § 1281.9, subd. (a), mandates that a person proposed to serve as a neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.
Code Civ. Proc., § 1281.85, subd. (a). Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Standard 6(d), addresses what relationships must be disclosed by a proposed arbitrator. The disclosure includes situations where the arbitrator or a member of the arbitrator's immediate family has or has had a significant personal relationship with any party or lawyer for a party.
Labels for the post: legal ethics, conflict of interest
Lisa Marie Nelson
http://macsnc.courts.state.mn.us/pubdocs/SC/Storage/OPA090472-0408.pdf
Minnesota Lawyer Hides Client’s Death
In In re Lyons, A09-472 (Minn. 2010) The Minnesota Supreme Court indefinitely suspended a lawyer for 1 year with no right to petition for reinstatement for being untruthful to both opposing counsel and referee in a disciplinary hearing. Montana Rule 3.3(a)(1) provides that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false stat[e]ment of material fact or law previously made to the tribunal by the lawyer.” And Minnesota Rules of Professional Conduct 8.1 An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact.
The lawyer, Thomas Lyons Jr, was retained in September of 2006 by plaintiff living in the state of Montana. Trans Union Corporation at this time erroneously reported plaintiff as dead. A complaint was filed under the Fair Credit Reporting Act. Plaintiff retained local counsel as well. On October 6, 2006, plaintiff was hospitalized while counsel was attempting a settlement with Trans Union. Lyons was advised by plaintiff’s local counsel on October 9th, 2006 that plaintiff was being removed from life support and was not going to make it. Lyons sent an email requesting a confirmation of settlement positions, per the client’s wife. The client died on October 9th, 2006. Lyon’s accepted an offer by email from Trans Union a settlement of 19,000.00.
The Minnesota Supreme Court affirmed the conclusions of the referee that the lawyer knowingly made false statements during testimony in which he failed to provide the Director with all information on file. This conduct violates Rule 25(a), RLPR.
The referee also concluded the conduct violated Rules 3.3(a)(1), 4.1. and 8.4(c) and (d) of the Montana Rules of Professional Conduct.
Lyons knowingly made false misrepresentations to opposing counsel in whether he knew of his client’s death before or after the parties reached a settlement, concerning a material fact. See In re Forrest, 730A.2d 340, 345-46 (N.J. 1999). (Noting that lawyer’s failure to disclose his client’s death “deceived both his adversary and the arbitrator about a fact that was crucial to the fair and proper resolution of the litigation” and suspending lawyer for six months)
This case demonstrates that several ethical considerations in the legal profession were violated. MRPC 8.1 says a lawyer should not make a false statement of material fact. Our Minnesota Rule 3.3 is the same as the state of Montana’s. Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly : (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
Tags attached: misconduct, suspension, Rule 8.1, disciplinary, false, misleading, MRPC
http://macsnc.courts.state.mn.us/pubdocs/SC/Storage/OPA090472-0408.pdf
Minnesota Lawyer Hides Client’s Death
In In re Lyons, A09-472 (Minn. 2010) The Minnesota Supreme Court indefinitely suspended a lawyer for 1 year with no right to petition for reinstatement for being untruthful to both opposing counsel and referee in a disciplinary hearing. Montana Rule 3.3(a)(1) provides that “[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false stat[e]ment of material fact or law previously made to the tribunal by the lawyer.” And Minnesota Rules of Professional Conduct 8.1 An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact.
The lawyer, Thomas Lyons Jr, was retained in September of 2006 by plaintiff living in the state of Montana. Trans Union Corporation at this time erroneously reported plaintiff as dead. A complaint was filed under the Fair Credit Reporting Act. Plaintiff retained local counsel as well. On October 6, 2006, plaintiff was hospitalized while counsel was attempting a settlement with Trans Union. Lyons was advised by plaintiff’s local counsel on October 9th, 2006 that plaintiff was being removed from life support and was not going to make it. Lyons sent an email requesting a confirmation of settlement positions, per the client’s wife. The client died on October 9th, 2006. Lyon’s accepted an offer by email from Trans Union a settlement of 19,000.00.
The Minnesota Supreme Court affirmed the conclusions of the referee that the lawyer knowingly made false statements during testimony in which he failed to provide the Director with all information on file. This conduct violates Rule 25(a), RLPR.
The referee also concluded the conduct violated Rules 3.3(a)(1), 4.1. and 8.4(c) and (d) of the Montana Rules of Professional Conduct.
Lyons knowingly made false misrepresentations to opposing counsel in whether he knew of his client’s death before or after the parties reached a settlement, concerning a material fact. See In re Forrest, 730A.2d 340, 345-46 (N.J. 1999). (Noting that lawyer’s failure to disclose his client’s death “deceived both his adversary and the arbitrator about a fact that was crucial to the fair and proper resolution of the litigation” and suspending lawyer for six months)
This case demonstrates that several ethical considerations in the legal profession were violated. MRPC 8.1 says a lawyer should not make a false statement of material fact. Our Minnesota Rule 3.3 is the same as the state of Montana’s. Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly : (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
Tags attached: misconduct, suspension, Rule 8.1, disciplinary, false, misleading, MRPC
Student Name: Kristina Mitton
Link for opinion: http://www.morelaw.com/verdicts/case.asp?n=09-2426&s=MO&d=44296
Title: Two Missouri law firms argue over attorney referral fees
Patrick Eng, an attorney for Eng & Woods, filed a declaratory judgment against Cummings, McClorey, Davis and Acho, (CMDA) a law firm based in Missouri that specializes in employment, commercial and personal injury law. Eng states that James Acho of (CMDA) believes his firm is owed one-third of the attorney fees that Eng recovered from a wrongful death suit that his client, Michael Richina filed in his parents’ accidental death.
In November 2006, Ernie Fazio, a long-time client of attorney James Acho called to inform Acho, that his sister-in-law and her husband had been killed in a car accident. The purpose of the phone call was to request that CMDA represent the former client’s niece and nephew in case a lawsuit was to arise because of the accident. The client’s nephew, Richina suggested that either CMDA represent them or that they refer them to another Missouri firm. After researching possible firms, Acho found Eng & Woods and suggested them to Richina. Acho then contact Eng, a partner in Eng & Woods and the two agreed that Eng would handle the case. According to Acho, the two agreed that CMDA would receive one-third of the firm’s attorney fees from the recovery of the case. This amount would be CMDA’s referral fees. Eng & Woods dispute that this agreement was ever made official.
On December 1, 2006, Acho sent Eng a letter stating that it would serve as a follow-up of the conversations between the two over the previous two weeks. According to Acho, the letter summarized the events and conversations that had taken place. After reading the letter, Eng took no action in informing Acho that he didn’t agree with the statements made in the letter.
Eng & Woods pursued the wrongful death claim in Missouri state court. Occasionally, Acho received updates on the case and informed Richina of what was going on. In December 2007, the case was settled and Richina and his sister each received $562, 500, for a total award of $1,875,000. Both Richina and his sister paid $187,500 in attorney fees, for a total of $375,000. Richina asked Eng if Acho would be receiving a portion of the fee and Eng told him that Acho would get one-third of the total.
In January 2008, Acho heard that the case had been settled. He then contacted Eng to discuss payment of his portion of the attorney fees. They discussed this over the phone and Acho sent a letter date January 22, 2008. Acho states that Eng agreed to the fee arrangement. The same day that Eng received the letter, Woods, Eng’s partner sent a check to Acho in the amount of $18,562.50; which is 5% of Eng & Woods fee from the case.
After an argument over the amount of the check, Eng put a stop on the check. In May 2008, Eng & Woods filed a declaratory judgment action against CMDA in federal court. They sought a declaration that CMDA had no right to any portion of the attorney’s fees recovered by Eng & Woods. CMDA then counter-claimed for breach of contract, fraud and misrepresentation, unjust enrichment, and bad faith breach of duty.
Issue
Does CMDA have rights to a portion of Eng & Woods recovered attorney fees under Mo. Sup. Ct. R. 4-1.5(e) (2006).6?
If two attorneys from different firms wish to share the fees generated from a single case, they may do so “only if based on a sharing of services or responsibility.” This principle is stated in Missouri Rule of Professional Conduct 1.5(e), which, at the time this alleged agreement between Acho and Eng was made, provided:
A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
Mo. Sup. Ct. R. 4-1.5(e) (2006).6 The Rule “permits the lawyers to divide a fee . . . by agreement . . . if all assume responsibility for the representation as a whole and the client is advised and does not object.” Id. cmt. “Rule 4-1.5 has the force and effect of law in Missouri.”
According to Rule 4-1.5(e) of the Missouri Rule of Professional Conduct, the court determined that because there was no written agreement, CMDA is not entitled to a portion of the attorney fees that were awarded to Eng & Woods.
Link for opinion: http://www.morelaw.com/verdicts/case.asp?n=09-2426&s=MO&d=44296
Title: Two Missouri law firms argue over attorney referral fees
Patrick Eng, an attorney for Eng & Woods, filed a declaratory judgment against Cummings, McClorey, Davis and Acho, (CMDA) a law firm based in Missouri that specializes in employment, commercial and personal injury law. Eng states that James Acho of (CMDA) believes his firm is owed one-third of the attorney fees that Eng recovered from a wrongful death suit that his client, Michael Richina filed in his parents’ accidental death.
In November 2006, Ernie Fazio, a long-time client of attorney James Acho called to inform Acho, that his sister-in-law and her husband had been killed in a car accident. The purpose of the phone call was to request that CMDA represent the former client’s niece and nephew in case a lawsuit was to arise because of the accident. The client’s nephew, Richina suggested that either CMDA represent them or that they refer them to another Missouri firm. After researching possible firms, Acho found Eng & Woods and suggested them to Richina. Acho then contact Eng, a partner in Eng & Woods and the two agreed that Eng would handle the case. According to Acho, the two agreed that CMDA would receive one-third of the firm’s attorney fees from the recovery of the case. This amount would be CMDA’s referral fees. Eng & Woods dispute that this agreement was ever made official.
On December 1, 2006, Acho sent Eng a letter stating that it would serve as a follow-up of the conversations between the two over the previous two weeks. According to Acho, the letter summarized the events and conversations that had taken place. After reading the letter, Eng took no action in informing Acho that he didn’t agree with the statements made in the letter.
Eng & Woods pursued the wrongful death claim in Missouri state court. Occasionally, Acho received updates on the case and informed Richina of what was going on. In December 2007, the case was settled and Richina and his sister each received $562, 500, for a total award of $1,875,000. Both Richina and his sister paid $187,500 in attorney fees, for a total of $375,000. Richina asked Eng if Acho would be receiving a portion of the fee and Eng told him that Acho would get one-third of the total.
In January 2008, Acho heard that the case had been settled. He then contacted Eng to discuss payment of his portion of the attorney fees. They discussed this over the phone and Acho sent a letter date January 22, 2008. Acho states that Eng agreed to the fee arrangement. The same day that Eng received the letter, Woods, Eng’s partner sent a check to Acho in the amount of $18,562.50; which is 5% of Eng & Woods fee from the case.
After an argument over the amount of the check, Eng put a stop on the check. In May 2008, Eng & Woods filed a declaratory judgment action against CMDA in federal court. They sought a declaration that CMDA had no right to any portion of the attorney’s fees recovered by Eng & Woods. CMDA then counter-claimed for breach of contract, fraud and misrepresentation, unjust enrichment, and bad faith breach of duty.
Issue
Does CMDA have rights to a portion of Eng & Woods recovered attorney fees under Mo. Sup. Ct. R. 4-1.5(e) (2006).6?
If two attorneys from different firms wish to share the fees generated from a single case, they may do so “only if based on a sharing of services or responsibility.” This principle is stated in Missouri Rule of Professional Conduct 1.5(e), which, at the time this alleged agreement between Acho and Eng was made, provided:
A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
Mo. Sup. Ct. R. 4-1.5(e) (2006).6 The Rule “permits the lawyers to divide a fee . . . by agreement . . . if all assume responsibility for the representation as a whole and the client is advised and does not object.” Id. cmt. “Rule 4-1.5 has the force and effect of law in Missouri.”
According to Rule 4-1.5(e) of the Missouri Rule of Professional Conduct, the court determined that because there was no written agreement, CMDA is not entitled to a portion of the attorney fees that were awarded to Eng & Woods.
Jodi Skovlund
Link for opinion: http://www.ndcourts.com/court/opinions/20090348.htm
Title: North Dakota: Plaintiff Appeals Lawyer's Summary Judgment Motion
In Tarnavsky v. Tschider, 2010 ND 70, the North Dakota Supreme Court awarded a lawyer double the costs he incurred for the appeal that brought by his former client.
The North Dakota Supreme Court affirmed the trial court’s judgment which dismissed the client’s case and granted the lawyer a summary judgment. They were able to affirm the judgment under the North Dakota Rules of Appellate Procedure 35.1(a)(1) and (6),which affirms by summary opinion and North Dakota Rules of Appellate Procedure 38, which assessed damages to a frivolous appeal.
The Court decided the client’s case was frivolous because he didn’t have sufficient proof that the lawyer was privileged to absolute immunity, nor did he provide proof that there was spoliation of evidence from the lawyer. The Court also decided that the lawyer should be awarded double the costs that were incurred from the appeal.
This case teaches the importance that a case can be affirmed by summary opinion under the N.D.R. App P. 35.1(a)(1) and (6) “In any case in which the court determines after argument, unless waived, that no reversible error of law appears and if: 1) the appeal is frivolous and completely without merit or 6) the summary judgment, directed verdict, or judgment on the pleadings is supported by the record. In addition, N.D.R.App.P.38 states “If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.
Labels for the post: summary judgment, N.D.R.App.P. 35.1(a)(1) and (6), N.D.R.App.P. 38.
Link for opinion: http://www.ndcourts.com/court/opinions/20090348.htm
Title: North Dakota: Plaintiff Appeals Lawyer's Summary Judgment Motion
In Tarnavsky v. Tschider, 2010 ND 70, the North Dakota Supreme Court awarded a lawyer double the costs he incurred for the appeal that brought by his former client.
The North Dakota Supreme Court affirmed the trial court’s judgment which dismissed the client’s case and granted the lawyer a summary judgment. They were able to affirm the judgment under the North Dakota Rules of Appellate Procedure 35.1(a)(1) and (6),which affirms by summary opinion and North Dakota Rules of Appellate Procedure 38, which assessed damages to a frivolous appeal.
The Court decided the client’s case was frivolous because he didn’t have sufficient proof that the lawyer was privileged to absolute immunity, nor did he provide proof that there was spoliation of evidence from the lawyer. The Court also decided that the lawyer should be awarded double the costs that were incurred from the appeal.
This case teaches the importance that a case can be affirmed by summary opinion under the N.D.R. App P. 35.1(a)(1) and (6) “In any case in which the court determines after argument, unless waived, that no reversible error of law appears and if: 1) the appeal is frivolous and completely without merit or 6) the summary judgment, directed verdict, or judgment on the pleadings is supported by the record. In addition, N.D.R.App.P.38 states “If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.
Labels for the post: summary judgment, N.D.R.App.P. 35.1(a)(1) and (6), N.D.R.App.P. 38.
By Jenelle Lundgren
Link for Opinion: http://web2.westlaw.com/find/default.wl?rs=WLW10.08&ifm=NotSet&fn=_top&sv=Split&tr=4B910850-BF6A-4A15-B3A7-CE0D7C2EE497&sr=PT&cite=783++N.W.2d+170&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Minnesota
Minnesota: A Lawyer’s Indefinite Suspension
In the case of In re Disciplinary Action against Juan Jesus Rodriguez, 783 N.W. 2d 170, the Supreme Court of Minnesota disbarred Attorney Juan Jesus Rodriguez for professional misconduct warranting public discipline, namely, misappropriating funds from a legal services organization by intercepting payment intended to pay the organization, which is in violation of Minn R. Prof. Conduct 1.15(a) and 8.4(c), and misrepresenting the terms of agreements signed by clients with the legal services organization for the purpose of collecting additional funds for his own use, which is a violation of Minn. R. Prof. Conduct 4.1, 8.4(c), and 8.4(d). Attorney Rodriguez stole approximately $650 from his low-income clients for his own personal use; namely, illegal drugs.
Attorney Juan Jesus Rodriguez, a Minnesota attorney, could not be found in the state or served personally with the disciplinary action. Because of this, in November of 2008, the Supreme Court suspended Rodriguez from practicing law, but with the stipulation that Rodriguez had one year that he could move for a vacation of the order of suspension. Attorney Rodriguez did not seek to vacate the order or otherwise appear to take action against the order.
In January 2010, the Supreme Court admitted the allegations of disciplinary action and invited briefs from the parties on what they thought would be the appropriate action in this matter. The Director of the Office of Lawyers Professional Responsibility filed a brief recommending disbarment, which Attorney Rodriguez does not and will not oppose.
Justice Paul Anderson filed a dissenting opinion recommending suspension for five years so that Rodriguez could recover from his drug habit and possibly get his life back on track.
The Supreme Court decided on disbarment and it was so ordered.
Labels for post: disbarment, Rule 1.15(a), Rule 8.4(c) and (d), Rule 4.1, public discipline
Link for Opinion: http://web2.westlaw.com/find/default.wl?rs=WLW10.08&ifm=NotSet&fn=_top&sv=Split&tr=4B910850-BF6A-4A15-B3A7-CE0D7C2EE497&sr=PT&cite=783++N.W.2d+170&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Minnesota
Minnesota: A Lawyer’s Indefinite Suspension
In the case of In re Disciplinary Action against Juan Jesus Rodriguez, 783 N.W. 2d 170, the Supreme Court of Minnesota disbarred Attorney Juan Jesus Rodriguez for professional misconduct warranting public discipline, namely, misappropriating funds from a legal services organization by intercepting payment intended to pay the organization, which is in violation of Minn R. Prof. Conduct 1.15(a) and 8.4(c), and misrepresenting the terms of agreements signed by clients with the legal services organization for the purpose of collecting additional funds for his own use, which is a violation of Minn. R. Prof. Conduct 4.1, 8.4(c), and 8.4(d). Attorney Rodriguez stole approximately $650 from his low-income clients for his own personal use; namely, illegal drugs.
Attorney Juan Jesus Rodriguez, a Minnesota attorney, could not be found in the state or served personally with the disciplinary action. Because of this, in November of 2008, the Supreme Court suspended Rodriguez from practicing law, but with the stipulation that Rodriguez had one year that he could move for a vacation of the order of suspension. Attorney Rodriguez did not seek to vacate the order or otherwise appear to take action against the order.
In January 2010, the Supreme Court admitted the allegations of disciplinary action and invited briefs from the parties on what they thought would be the appropriate action in this matter. The Director of the Office of Lawyers Professional Responsibility filed a brief recommending disbarment, which Attorney Rodriguez does not and will not oppose.
Justice Paul Anderson filed a dissenting opinion recommending suspension for five years so that Rodriguez could recover from his drug habit and possibly get his life back on track.
The Supreme Court decided on disbarment and it was so ordered.
Labels for post: disbarment, Rule 1.15(a), Rule 8.4(c) and (d), Rule 4.1, public discipline
California: Bankruptcy Lawyer Misconduct Listed In Suspension Order
The issues at hand in this particular case is the fact the attorney handed most of the duties to non-attorneys including his wife. His assistant was conducting initial interviews with clients and advising them as to what chapter bankruptcy should file. His thought process was likely that of his wife, who is Vietnamese, would relate to clients of the same nationality in a way to win their business. However, due to the fact those non-attorneys allowed to advise clients of how to proceed or they can be charged with unauthorized practice of law. In addition to allowing non-attorneys to do most of the work with and for the clients Mr. Margolis allowed his clients to hide assets that they wanted to keep after the filing took place. Finally paperwork was filed with the court without client signatures resulting in many inaccuracies.
The rule of law violated was Rule 9011. The bankruptcy court made an immediate decision regarding the practice of law by Joel Margolis before the state bar association could respond. It was determined that Mr. Margolis should be suspended for 30 days, pay a $7500 fine, and $5000 relieved if the attorney agreed not to file additional claims without debtor signature and to refund the $2400 in fees paid to him for cases filed illegally. As well the attorney was required to take educational classes prior to filing future bankruptcy claims.
Attorneys who have no concern for the client and with the documents presented in court should not be allowed to continue practicing law before they demonstrate in at least a class room setting that their mind set has changed. As well as paying all clients back that were not treated fairly.
All the case information can be viewed on the bankruptcy law network website. http://www.bankruptcylawnetwork.com/2010/05/10/bankruptcy-lawyer-misconduct-listed-in-suspension-order/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+BankruptcyLawNetwork+%28Bankruptcy+Law+Network%29
The issues at hand in this particular case is the fact the attorney handed most of the duties to non-attorneys including his wife. His assistant was conducting initial interviews with clients and advising them as to what chapter bankruptcy should file. His thought process was likely that of his wife, who is Vietnamese, would relate to clients of the same nationality in a way to win their business. However, due to the fact those non-attorneys allowed to advise clients of how to proceed or they can be charged with unauthorized practice of law. In addition to allowing non-attorneys to do most of the work with and for the clients Mr. Margolis allowed his clients to hide assets that they wanted to keep after the filing took place. Finally paperwork was filed with the court without client signatures resulting in many inaccuracies.
The rule of law violated was Rule 9011. The bankruptcy court made an immediate decision regarding the practice of law by Joel Margolis before the state bar association could respond. It was determined that Mr. Margolis should be suspended for 30 days, pay a $7500 fine, and $5000 relieved if the attorney agreed not to file additional claims without debtor signature and to refund the $2400 in fees paid to him for cases filed illegally. As well the attorney was required to take educational classes prior to filing future bankruptcy claims.
Attorneys who have no concern for the client and with the documents presented in court should not be allowed to continue practicing law before they demonstrate in at least a class room setting that their mind set has changed. As well as paying all clients back that were not treated fairly.
All the case information can be viewed on the bankruptcy law network website. http://www.bankruptcylawnetwork.com/2010/05/10/bankruptcy-lawyer-misconduct-listed-in-suspension-order/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+BankruptcyLawNetwork+%28Bankruptcy+Law+Network%29
Student Name: Cheri Ritter
Link For Opinion: http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=51680
Title: Wisconsin: MCDAO Attorney Publicly Reprimanded for Professional Misconduct
In In re Frisch, 2010 WI 60; 784 N.W.2d 670; 2010 Wisc. LEXIS 54, the Supreme Court of Wisconsin publicly reprimanded and required an attorney with the Milwaukee Country District Attorney’s Office (MCDAO) to pay $1,500 of court costs for professional misconduct resulting from the attorney’s struggles with alcohol addiction.
Of the three charges brought against the attorney, he did not contest Counts 1 and 2. Count 1 alleged that he violated SCRs 20:1.3 and 20:3.2 by failing to complete the necessary work for a client’s case. Count 2 alleged that he violated SCRs 20:3.4(c) and SCRs 20:3.4(d) by failing to provide discovery in three cases and failing to comply with discovery requests. The Supreme Court of Wisconsin affirmed the referee’s conclusion that the allegations in Counts 1 and 2 had been proven.
The attorney did dispute the charge in Count 3, which alleged that he had violated SCRs 20:8.4(c) by hiding certain files in his car and then misrepresenting his knowledge of their whereabouts to others. The referee ruled that Count 3 had not been proven as no evidence existed to support the allegations; the Court concurred with that finding.
Although the attorney in this case had admitted to multiple violations and had caused harm to clients, he however had never been professionally disciplined in his over 30 years of practicing law, had self-reported his alcohol dependency, and had admitted to the relevant counts against him. He had also already been suspended without pay from his job for a lengthy period and had undergone alcohol dependency treatment, partly at his own expense, attempting to remedy the underlying problem. Due to the mitigating factors in the attorney’s favor, the referee decided on public reprimand as an appropriate disciplinary action.
This case illustrates the significance of maintaining a level of competency in not allowing personal problems to affect professional duties as an attorney, and for taking responsibility if professional and ethical issues do arise. An attorney must be able to perform all necessary duties for the client, in compliance with SCRs 20:1.3 which provides that an attorney “shall act with reasonable diligence and promptness in representing a client” and 20:3.2 which states that an attorney “shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
Labels for the post: legal ethics, professional misconduct, alcohol dependency, public reprimand, SCRs 20:1.3, SCRs 20:3.2.
Link For Opinion: http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=51680
Title: Wisconsin: MCDAO Attorney Publicly Reprimanded for Professional Misconduct
In In re Frisch, 2010 WI 60; 784 N.W.2d 670; 2010 Wisc. LEXIS 54, the Supreme Court of Wisconsin publicly reprimanded and required an attorney with the Milwaukee Country District Attorney’s Office (MCDAO) to pay $1,500 of court costs for professional misconduct resulting from the attorney’s struggles with alcohol addiction.
Of the three charges brought against the attorney, he did not contest Counts 1 and 2. Count 1 alleged that he violated SCRs 20:1.3 and 20:3.2 by failing to complete the necessary work for a client’s case. Count 2 alleged that he violated SCRs 20:3.4(c) and SCRs 20:3.4(d) by failing to provide discovery in three cases and failing to comply with discovery requests. The Supreme Court of Wisconsin affirmed the referee’s conclusion that the allegations in Counts 1 and 2 had been proven.
The attorney did dispute the charge in Count 3, which alleged that he had violated SCRs 20:8.4(c) by hiding certain files in his car and then misrepresenting his knowledge of their whereabouts to others. The referee ruled that Count 3 had not been proven as no evidence existed to support the allegations; the Court concurred with that finding.
Although the attorney in this case had admitted to multiple violations and had caused harm to clients, he however had never been professionally disciplined in his over 30 years of practicing law, had self-reported his alcohol dependency, and had admitted to the relevant counts against him. He had also already been suspended without pay from his job for a lengthy period and had undergone alcohol dependency treatment, partly at his own expense, attempting to remedy the underlying problem. Due to the mitigating factors in the attorney’s favor, the referee decided on public reprimand as an appropriate disciplinary action.
This case illustrates the significance of maintaining a level of competency in not allowing personal problems to affect professional duties as an attorney, and for taking responsibility if professional and ethical issues do arise. An attorney must be able to perform all necessary duties for the client, in compliance with SCRs 20:1.3 which provides that an attorney “shall act with reasonable diligence and promptness in representing a client” and 20:3.2 which states that an attorney “shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
Labels for the post: legal ethics, professional misconduct, alcohol dependency, public reprimand, SCRs 20:1.3, SCRs 20:3.2.
Cassandra Johnson
Link for opinion: http://www.gehrkelaw.com/2010/08/ring-plus-inc-v-cingular-wireless-corp.html
Title: Ring Plus, Inc. v. Cingular Wireless Corp.
In 2010 U.S. App. LEXIS 16296 (Fed. Cir. Aug. 6, 2010), the United States Court of Appeals for the Federal Circuit reversed-in-part the enforceability for inequitable conduct and affirmed-in-part the court’s entry of summary judgment of non-infringement.
The United States Court of Appeals for the Federal Circuit reversed the district court’s unenforceability for inequitable conduct concerning U.S. patent No. 7,006,608 titled “Software Algorithm and Method Enabling Message Presentation During a Telephone Ringing Signal Period.” 37 C.F.R. § 1.56 refers to material information known to be material to patentability, which may be broader than only such references as clearly qualify as prior art under a subsection of 35 U.S.C.S. § 102.
The United States Court of Appeals for the Federal Circuit affirmed the grant of summary judgment of non-infringement for U.S. patent No. 7,006,608 against Cingular Wireless and companies related, and affirm the denial of Ring Plus’s motion to disqualify Cingular’s counsel for allegedly improper ex parte party communications.
Ring Plus brought claims against Cingular Wireless for infringing on their patent from a service they provide called Answer Tones. The court decided that Cingular and their clients did not intentionally try to deceive the U.S. Patent and Trademark Office (PTO). The code of federal regulations title 37 C.F.R. § 1.56 refers to material information known to be material to patentability, which may be broader than only such references as clearly qualify as prior art under a subsection of 35 United States Code Service § 102.
Labels for the post: legal ethics, patent, infringement, inequitable conduct
Link for opinion: http://www.gehrkelaw.com/2010/08/ring-plus-inc-v-cingular-wireless-corp.html
Title: Ring Plus, Inc. v. Cingular Wireless Corp.
In 2010 U.S. App. LEXIS 16296 (Fed. Cir. Aug. 6, 2010), the United States Court of Appeals for the Federal Circuit reversed-in-part the enforceability for inequitable conduct and affirmed-in-part the court’s entry of summary judgment of non-infringement.
The United States Court of Appeals for the Federal Circuit reversed the district court’s unenforceability for inequitable conduct concerning U.S. patent No. 7,006,608 titled “Software Algorithm and Method Enabling Message Presentation During a Telephone Ringing Signal Period.” 37 C.F.R. § 1.56 refers to material information known to be material to patentability, which may be broader than only such references as clearly qualify as prior art under a subsection of 35 U.S.C.S. § 102.
The United States Court of Appeals for the Federal Circuit affirmed the grant of summary judgment of non-infringement for U.S. patent No. 7,006,608 against Cingular Wireless and companies related, and affirm the denial of Ring Plus’s motion to disqualify Cingular’s counsel for allegedly improper ex parte party communications.
Ring Plus brought claims against Cingular Wireless for infringing on their patent from a service they provide called Answer Tones. The court decided that Cingular and their clients did not intentionally try to deceive the U.S. Patent and Trademark Office (PTO). The code of federal regulations title 37 C.F.R. § 1.56 refers to material information known to be material to patentability, which may be broader than only such references as clearly qualify as prior art under a subsection of 35 United States Code Service § 102.
Labels for the post: legal ethics, patent, infringement, inequitable conduct
Carolyn Henry, September 1, 2010
Unit 7 Assignment
In the Matter of Judicial Disciplinary Proceedings Against the Honorable Annette K. Ziegler,
Wisconsin
Judicial Commission, Complainant, v. The Honorable Annette K. Ziegler, Respondent
Case Summary
Link to State Court Website: http://wscca.wicourts.gov/caseDetails.do;jsessionid=0B6DCF2C076A7996166BEC1C2F0B6A1C?caseNo=2007AP002066&cacheId=E701C83EB550F7ED813211D163C2CD61&recordCount=2&offset=0&linkOnlyToForm=false
This case is to determine whether a judge’s conduct in presiding in 11 cases in which the judge’s husband was a director of one of the parties constitutes misconduct under Supreme Court Rule 60.04(4)(e)1 of the Code of Judicial Conduct and Wisconsin Statute § 757.81(4)(a). Wisconsin Statute §757.81(4)(a). defines misconduct as willful violation of a rule of the code of judicial ethics.
Washington County Circuit Judge Annette K. Ziegler presided in 11 cases in which the West Bend Savings Bank was a party when the Judge’s spouse was a director of the Bank. The applicable code rule, SCR 60.04(4)(e)1. requires a judge to recuse herself from presiding in a case in which the judge’s spouse is a director of a party to the proceeding. Judge Ziegler’s conduct in presiding in the 11 cases falls within the mandatory rule of the Code and constitutes misconduct as defined by the legislature. Accordingly, the court concluded as a matter of law that the Judge violated the code as charged.
Article VII, Section 11 of the Wisconsin Constitution provides that judges shall be subject to reprimand, censure, suspension, or removal for cause in disciplinary proceedings. An important purpose of judicial discipline is to foster public trust and confidence in the judicial system. The purpose of SCR 60.04(4)(e)1. Is to promote the public’s confidence that judicial decisions are free from favoritism. SCR 60.04(4)(e)1. prohibits a judge from sitting on a case in which the judge’s spouse is a director of a party is to avoid the perception that the judge is unfair and partial. If a judge complies with SCR 60.04(4)(e)1., no question will ever be asked about a judge’s favoritism toward a party to the litigation when the judge’s spouse is a director. The court determined that Judge Ziegler’s failure to recuse herself from these 11 cases or obtain a waiver diminished public confidence in the legal system. The discipline that was imposed on Judge Ziegler by the Supreme Court was a public reprimand.
Labels for the post: legal ethics, judicial conduct, conflict of interest, judge’s spouse, reprimand, recuse, confidence, public perception
Unit 7 Assignment
In the Matter of Judicial Disciplinary Proceedings Against the Honorable Annette K. Ziegler,
Wisconsin
Judicial Commission, Complainant, v. The Honorable Annette K. Ziegler, Respondent
Case Summary
Link to State Court Website: http://wscca.wicourts.gov/caseDetails.do;jsessionid=0B6DCF2C076A7996166BEC1C2F0B6A1C?caseNo=2007AP002066&cacheId=E701C83EB550F7ED813211D163C2CD61&recordCount=2&offset=0&linkOnlyToForm=false
This case is to determine whether a judge’s conduct in presiding in 11 cases in which the judge’s husband was a director of one of the parties constitutes misconduct under Supreme Court Rule 60.04(4)(e)1 of the Code of Judicial Conduct and Wisconsin Statute § 757.81(4)(a). Wisconsin Statute §757.81(4)(a). defines misconduct as willful violation of a rule of the code of judicial ethics.
Washington County Circuit Judge Annette K. Ziegler presided in 11 cases in which the West Bend Savings Bank was a party when the Judge’s spouse was a director of the Bank. The applicable code rule, SCR 60.04(4)(e)1. requires a judge to recuse herself from presiding in a case in which the judge’s spouse is a director of a party to the proceeding. Judge Ziegler’s conduct in presiding in the 11 cases falls within the mandatory rule of the Code and constitutes misconduct as defined by the legislature. Accordingly, the court concluded as a matter of law that the Judge violated the code as charged.
Article VII, Section 11 of the Wisconsin Constitution provides that judges shall be subject to reprimand, censure, suspension, or removal for cause in disciplinary proceedings. An important purpose of judicial discipline is to foster public trust and confidence in the judicial system. The purpose of SCR 60.04(4)(e)1. Is to promote the public’s confidence that judicial decisions are free from favoritism. SCR 60.04(4)(e)1. prohibits a judge from sitting on a case in which the judge’s spouse is a director of a party is to avoid the perception that the judge is unfair and partial. If a judge complies with SCR 60.04(4)(e)1., no question will ever be asked about a judge’s favoritism toward a party to the litigation when the judge’s spouse is a director. The court determined that Judge Ziegler’s failure to recuse herself from these 11 cases or obtain a waiver diminished public confidence in the legal system. The discipline that was imposed on Judge Ziegler by the Supreme Court was a public reprimand.
Labels for the post: legal ethics, judicial conduct, conflict of interest, judge’s spouse, reprimand, recuse, confidence, public perception
Insurer Seeks Counsel for Insured: Insurer Not the Client
This case centered on the ethical issue of tripartite relationships and possible conflict of interests between Farmland Mutual Insurance Company (the insurer), Pine Island Farmers Coop (the insured), and the defense attorneys sought by the insurer Erstad & Riemer, P.A. Farmland Insurance Company were not clients of Erstad & Riemer. The Minnesota Court of Appeals held that “the insured is the sole client of the defense attorneys hired by the insurer.”
Duane Windhorst initially sought action against Pine Island Farmers Coop when a milk metering system installed on his dairy farm was not properly installed and led to a number of his cows being contaminated with bacteria. The jury found that Pine Island was 90% at fault for negligence since their actions were the direct cause of Windhorst’s damages. Farmland is the insurer of Pine Island Farmers Coop and they allege in this current lawsuit that Erstad & Riemer had represented them both in a court of law and had committed legal practice and breach of contract.
The court focused on the presence of the proposed attorney-client relationship between Farmland and Erstad & Riemer. The court relied on Minnesota law that states attorney-client relationships can be created by contract, either express or implied, or through tort theory. Under tort theory, an attorney-client relationship is created when a person seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on the advice. Erstad & Riemer correctly asserted that any action sought by Farmland was for the insured, Pine Island, who is the sole client of the attorneys. Case law in Minnesota further supports this claim.
After applying the facts to the holding, the Minnesota Court of Appeals concluded that Farmland Mutual Insurance Company could not show they were a client of Erstad & Riemer as any legal actions sought by them were for the insured, Pine Island Farmers Coop. Therefore, there was no conflict of interests and no breach of contract between the insurer, insured, and attorneys.
Duane Windhorst initially sought action against Pine Island Farmers Coop when a milk metering system installed on his dairy farm was not properly installed and led to a number of his cows being contaminated with bacteria. The jury found that Pine Island was 90% at fault for negligence since their actions were the direct cause of Windhorst’s damages. Farmland is the insurer of Pine Island Farmers Coop and they allege in this current lawsuit that Erstad & Riemer had represented them both in a court of law and had committed legal practice and breach of contract.
The court focused on the presence of the proposed attorney-client relationship between Farmland and Erstad & Riemer. The court relied on Minnesota law that states attorney-client relationships can be created by contract, either express or implied, or through tort theory. Under tort theory, an attorney-client relationship is created when a person seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on the advice. Erstad & Riemer correctly asserted that any action sought by Farmland was for the insured, Pine Island, who is the sole client of the attorneys. Case law in Minnesota further supports this claim.
After applying the facts to the holding, the Minnesota Court of Appeals concluded that Farmland Mutual Insurance Company could not show they were a client of Erstad & Riemer as any legal actions sought by them were for the insured, Pine Island Farmers Coop. Therefore, there was no conflict of interests and no breach of contract between the insurer, insured, and attorneys.
Title: United States Department of Justice, Office of the Attorney General: Attempt to Reopen Removal Proceedings Based on Lawyer’s Deficient Performa
Link for opinion: http://www.justice.gov/eoir/vll/intdec/nfvol24.htm
Title: United States Department of Justice, Office of the Attorney General: Attempt to Reopen Removal Proceedings Based on Lawyer’s Deficient Performance Without Merit.
In re Compean, 24 I. & N. Dec 710 (B.I.A. 2009) the United States Attorney General examined the motions of three illegal aliens to reopen their past proceedings based on their belief that their lawyer’s all exhibited a deficient performance while carrying out their duty to them. Compean, Bangaly, and J-E-C-et al, all concurred that their attorneys failed to file necessary forms such as Form I-130 Visa petitions and appellate briefs. They also concluded that in failing to do these tasks the lawyers committed egregious and prejudiced acts against them and thus their trials should be reopened based on this deficient performance of their lawyers.
The issue in this case is whether or not the attorney’s actions (the alleged failure to file certain law documents) were prejudiced against their clients. While illegal aliens have few rights in civil proceedings (such as removal proceedings) they do have a statutory privilege to retain private counsel (not-Government-appointed counsel) at their own expense. This being said, the Constitution and the immigration laws do not entitle an illegal alien who is in the process of removal proceedings to relief or compensation for their attorney’s mistakes. However, the Department of Justice may reopen removal proceedings when an illegal alien can prove that they were prejudiced by the actions of their private counsel.
Applicable law here adheres to the issue of whether or not the attorney’s actions prejudiced their clients in some way, caused enough “exceptional and extremely unusual hardship” in order for their removal to be cancelled. Section 240A(b)(1)(D) of the Act, 8 U.S.C. s 1229b (b)(1)(D). Part IV. A of immigration law allows for motions to reopen removal cases based on a lawyer’s deficient performance. However, in the matter of Compean it was determined that Compean’s attorney did in fact file the Form I-130 visa petition that was supposedly missing from the court record. Along with Lozada’s requirement of filing a disciplinary complaint, which Compean failed to do, it was determined Compean could not establish prejudice thus his motion was denied. While Bangaly and J-E-C-et al, followed the necessary Lozada requirements, they also failed to establish prejudice in their case and thus their motions were also denied.
Labels: legal ethics, immigration law, lawyer’s deficient performance, removal proceedings
Title: United States Department of Justice, Office of the Attorney General: Attempt to Reopen Removal Proceedings Based on Lawyer’s Deficient Performance Without Merit.
In re Compean, 24 I. & N. Dec 710 (B.I.A. 2009) the United States Attorney General examined the motions of three illegal aliens to reopen their past proceedings based on their belief that their lawyer’s all exhibited a deficient performance while carrying out their duty to them. Compean, Bangaly, and J-E-C-et al, all concurred that their attorneys failed to file necessary forms such as Form I-130 Visa petitions and appellate briefs. They also concluded that in failing to do these tasks the lawyers committed egregious and prejudiced acts against them and thus their trials should be reopened based on this deficient performance of their lawyers.
The issue in this case is whether or not the attorney’s actions (the alleged failure to file certain law documents) were prejudiced against their clients. While illegal aliens have few rights in civil proceedings (such as removal proceedings) they do have a statutory privilege to retain private counsel (not-Government-appointed counsel) at their own expense. This being said, the Constitution and the immigration laws do not entitle an illegal alien who is in the process of removal proceedings to relief or compensation for their attorney’s mistakes. However, the Department of Justice may reopen removal proceedings when an illegal alien can prove that they were prejudiced by the actions of their private counsel.
Applicable law here adheres to the issue of whether or not the attorney’s actions prejudiced their clients in some way, caused enough “exceptional and extremely unusual hardship” in order for their removal to be cancelled. Section 240A(b)(1)(D) of the Act, 8 U.S.C. s 1229b (b)(1)(D). Part IV. A of immigration law allows for motions to reopen removal cases based on a lawyer’s deficient performance. However, in the matter of Compean it was determined that Compean’s attorney did in fact file the Form I-130 visa petition that was supposedly missing from the court record. Along with Lozada’s requirement of filing a disciplinary complaint, which Compean failed to do, it was determined Compean could not establish prejudice thus his motion was denied. While Bangaly and J-E-C-et al, followed the necessary Lozada requirements, they also failed to establish prejudice in their case and thus their motions were also denied.
Labels: legal ethics, immigration law, lawyer’s deficient performance, removal proceedings
Wisconsin: Lawyer’s License Revoked for Professional Misconduct
Facts:
Attorney Scott H. Fisher (“Fisher”) was retained by two clients, Mr. and Mrs. K, to represent them in a bankruptcy action. WI Office of Lawyer Regulation v. Fisher, 2010 WI 45, Wis. 2d 745. Mr. and Mrs. K paid Fisher $500. Id. After numerous attempts to contact Fisher’s office by phone without any return calls from Fisher, a receptionist that worked in Fisher’s office called Mr. and Mrs. K and informed them that Fisher had disappeared without notifying his clients. Id. The $500 fee was never returned to Mr. and Mrs. K. Id.
The Wisconsin Office of Lawyer Regulation (“OLR”) then received notification that Fisher had abandoned his practice, moved out of the United States, and had taken unearned money from his clients. Id. The OLR tried to contact Fisher by phone and e-mail correspondence without success. Id. Because Fisher was unwilling to participate in the investigation, his license to practice law was temporarily suspended on April 14, 2009. Id. The OLR charged Fisher with 55 different counts of professional misconduct because of ten separate clients seeking to revoke Fisher’s license. Id. The OLR served Fisher with a complaint regarding this matter, but Fisher never responded. Id. Counts 1-6 of the 55 total pertained to Mr. and Mrs. K. Id.
Issue:
Whether Fisher committed professional misconduct in the matter of Mr. and Mrs. K.
Holding:
Yes, Fisher did commit professional misconduct in the matter of Mr. and Mrs. K. on all six counts.
Rationale:
The six counts against Fisher in the matter of Mr. and Mrs. K are as follows:
1. Entering into a legal agreement with Mr. and Mrs. K. stating that if Fisher could not be present that another lawyer from the firm would be there to represent them even though no other attorney worked in his office. Id.
2. Failing to remain in contact with Mr. and Mrs. K. and failing to provide them with a forwarding address or current phone number. Id.
3. Failing to give sufficient notice to Mr. and Mrs. K. that Fisher would be leaving Wisconsin so that they could retain a different attorney and failing to refund the portion of his fees that he had not earned. Id.
4. Terminating the representation of his clients before fulfilling the legal services that Fisher was hired for and for not returning the $500 fee advanced to him by Mr. and Mrs. K. Id.
5. For abandoning his practice with out a forwarding address. Id.
6. Failing to file a response to the grievances that Fisher violated. Id.
Because Fisher failed to file and answer to the complaint that he was served, the court has presumed that Fisher agrees that the statements made and that the grievances against him are true. Id. Therefore, Fisher will have his license permanently revoked in the state of Wisconsin. He will also be required to pay restitution to Mr. and Mrs. K. and pay the court costs for these proceedings. Id.
Attorney Scott H. Fisher (“Fisher”) was retained by two clients, Mr. and Mrs. K, to represent them in a bankruptcy action. WI Office of Lawyer Regulation v. Fisher, 2010 WI 45, Wis. 2d 745. Mr. and Mrs. K paid Fisher $500. Id. After numerous attempts to contact Fisher’s office by phone without any return calls from Fisher, a receptionist that worked in Fisher’s office called Mr. and Mrs. K and informed them that Fisher had disappeared without notifying his clients. Id. The $500 fee was never returned to Mr. and Mrs. K. Id.
The Wisconsin Office of Lawyer Regulation (“OLR”) then received notification that Fisher had abandoned his practice, moved out of the United States, and had taken unearned money from his clients. Id. The OLR tried to contact Fisher by phone and e-mail correspondence without success. Id. Because Fisher was unwilling to participate in the investigation, his license to practice law was temporarily suspended on April 14, 2009. Id. The OLR charged Fisher with 55 different counts of professional misconduct because of ten separate clients seeking to revoke Fisher’s license. Id. The OLR served Fisher with a complaint regarding this matter, but Fisher never responded. Id. Counts 1-6 of the 55 total pertained to Mr. and Mrs. K. Id.
Issue:
Whether Fisher committed professional misconduct in the matter of Mr. and Mrs. K.
Holding:
Yes, Fisher did commit professional misconduct in the matter of Mr. and Mrs. K. on all six counts.
Rationale:
The six counts against Fisher in the matter of Mr. and Mrs. K are as follows:
1. Entering into a legal agreement with Mr. and Mrs. K. stating that if Fisher could not be present that another lawyer from the firm would be there to represent them even though no other attorney worked in his office. Id.
2. Failing to remain in contact with Mr. and Mrs. K. and failing to provide them with a forwarding address or current phone number. Id.
3. Failing to give sufficient notice to Mr. and Mrs. K. that Fisher would be leaving Wisconsin so that they could retain a different attorney and failing to refund the portion of his fees that he had not earned. Id.
4. Terminating the representation of his clients before fulfilling the legal services that Fisher was hired for and for not returning the $500 fee advanced to him by Mr. and Mrs. K. Id.
5. For abandoning his practice with out a forwarding address. Id.
6. Failing to file a response to the grievances that Fisher violated. Id.
Because Fisher failed to file and answer to the complaint that he was served, the court has presumed that Fisher agrees that the statements made and that the grievances against him are true. Id. Therefore, Fisher will have his license permanently revoked in the state of Wisconsin. He will also be required to pay restitution to Mr. and Mrs. K. and pay the court costs for these proceedings. Id.
Wednesday, September 8, 2010
Missouri: Lawyer Suspended for Violating Rules of Professional Conduct
Link for opinion: http://www.courts.mo.gov/file.jsp?id=34349
In In re Coleman, 295 S.W.3d 857, 2009 Mo. LEXIS 468 (Mo. 2009), the Missouri Supreme Court suspended a lawyer’s license, stays execution of the suspension and places the lawyer on probation for one year with certain requirements.
The Missouri Supreme Court determined the lawyer knowingly made decisions without the clients consent in violation of Mo. Sup. Ct. R. 4-1.2(a) and created a conflict of interest in violation of Mo. Sup. Ct. R. 4-1.7. The lawyer also failed to keep personal funds separate in violation of Mo. Sup. Ct. R. 4-1.15(c) and failed to adhere to adequate termination of representation in violation of Mo. Sup. Ct. R. 4-1.16. By violating rules of professional misconduct, he also violated Mo. Sup. Ct. R. 4-8.4(a) and 8.4(d).
The lawyer also failed to withdraw after creating a conflict of interest with his client and failed to respond to a request of information so the plaintiff could secure new counsel for further cases. The lawyer is reluctant to accept that his actions are improper and prohibited. The court held that an attorney has ethical duties to the client and must not deviate from the rules of professional conduct when representing a client.
This case shows the importance of the lawyer’s duty to follow the rules of professional conduct when representing a client under Rule 4-1.2(a) that states “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Additionally, Rule 4-1.7 states “a lawyer shall not represent a client if the representation of that client may be materially limited…by the lawyer’s own interest.”
In In re Coleman, 295 S.W.3d 857, 2009 Mo. LEXIS 468 (Mo. 2009), the Missouri Supreme Court suspended a lawyer’s license, stays execution of the suspension and places the lawyer on probation for one year with certain requirements.
The Missouri Supreme Court determined the lawyer knowingly made decisions without the clients consent in violation of Mo. Sup. Ct. R. 4-1.2(a) and created a conflict of interest in violation of Mo. Sup. Ct. R. 4-1.7. The lawyer also failed to keep personal funds separate in violation of Mo. Sup. Ct. R. 4-1.15(c) and failed to adhere to adequate termination of representation in violation of Mo. Sup. Ct. R. 4-1.16. By violating rules of professional misconduct, he also violated Mo. Sup. Ct. R. 4-8.4(a) and 8.4(d).
The lawyer also failed to withdraw after creating a conflict of interest with his client and failed to respond to a request of information so the plaintiff could secure new counsel for further cases. The lawyer is reluctant to accept that his actions are improper and prohibited. The court held that an attorney has ethical duties to the client and must not deviate from the rules of professional conduct when representing a client.
This case shows the importance of the lawyer’s duty to follow the rules of professional conduct when representing a client under Rule 4-1.2(a) that states “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Additionally, Rule 4-1.7 states “a lawyer shall not represent a client if the representation of that client may be materially limited…by the lawyer’s own interest.”
Partner in Minnesota Firm Disbarred After Swindling Thousands
Link for opinion: http://pa.courts.state.mn.us/CaseDetail.aspx?CaseID=1612635688
In State of Minnesota v. Thomas Allen Rothstein, 777 N.W.2d 31 (Minn. 2010), the court sentenced Rothstein, a partner in a law firm which he helped create, to a term of 5 years for violation of Minnesota Statute 609.52 – Theft by Swindle.
Over the course of several years, 2005-2007 according to the charges, Rothstein utilized the firm’s money for personal expenses. Rothstein altered bookkeeping records to hide the missing money, nearly $125,000, which had been used for expenses such as fitness clubs, MP3 downloads, and floral arrangements. Because he was one of only a handful of individuals in the firm familiar with the accounting software used, Rothstein was able to easily conceal his actions.
Not only did Rothstein commit a criminal act by taking the firm’s money for his own use (Minn. Stat. 609.52), he also violated Minnesota Rule of Professional Conduct (RPC) 8.4. Subsection (b) of this rule states that to commit a criminal act which reflects negatively on the attorney’s trustworthiness constitutes professional misconduct.
As a result of violating Statute 609.52, Rothstein was sentenced to a 5-year jail term and a $5000 fine, plus administrative fees. As a result of violating Minnesota RPC Rule 8.4, Rothstein was disbarred.
This case demonstrates the importance of attorneys maintaining professional conduct and to practice law in an honest and truthful manner. To do otherwise diminishes the work of attorneys who do abide by the Rules of Professional Conduct.
In State of Minnesota v. Thomas Allen Rothstein, 777 N.W.2d 31 (Minn. 2010), the court sentenced Rothstein, a partner in a law firm which he helped create, to a term of 5 years for violation of Minnesota Statute 609.52 – Theft by Swindle.
Over the course of several years, 2005-2007 according to the charges, Rothstein utilized the firm’s money for personal expenses. Rothstein altered bookkeeping records to hide the missing money, nearly $125,000, which had been used for expenses such as fitness clubs, MP3 downloads, and floral arrangements. Because he was one of only a handful of individuals in the firm familiar with the accounting software used, Rothstein was able to easily conceal his actions.
Not only did Rothstein commit a criminal act by taking the firm’s money for his own use (Minn. Stat. 609.52), he also violated Minnesota Rule of Professional Conduct (RPC) 8.4. Subsection (b) of this rule states that to commit a criminal act which reflects negatively on the attorney’s trustworthiness constitutes professional misconduct.
As a result of violating Statute 609.52, Rothstein was sentenced to a 5-year jail term and a $5000 fine, plus administrative fees. As a result of violating Minnesota RPC Rule 8.4, Rothstein was disbarred.
This case demonstrates the importance of attorneys maintaining professional conduct and to practice law in an honest and truthful manner. To do otherwise diminishes the work of attorneys who do abide by the Rules of Professional Conduct.
Michigan: Trial Court Judge accused of knowingly allowing the testimony of perjuring witnesses
Link for opinion: http://coa.courts.mi.gov/documents/opinions/final/coa/20100304_c294667_44_294667.opn.pdf
In the case of People v. Waterstone, 485 Mich. 1016; 776 N.W.2d 113 (2010), Judge Mary Waterstone was accused of permitting witnesses to knowingly commit perjury at a criminal case. The parties to the case later filed a suit against her for this misconduct and the AG defended her and then subsequently prosecuted her for the same crime. She later filed a motion to have the Attorney General (AG) disqualified from the case for conflict of interest.
She feels that the AG’s prosecution of her is inconsistent with the Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, 1.10. As well as cited inconstancies with the case of Attorney General vs. Public Service Commission, 243 Mich. App 487; 625 NW2d 16 (2000).
The AG failed to notify the defendant that she was party to the initial investigation. The defendant claims she had confidential conversations with the AG that could have been shared with the prosecution side of the case. The AG should not be allowed to prosecute and defend the client all at once according to MRPC. In AG vs. PSC it was found that the Attorney General’s office has a different role in government and the rules of professional conduct cannot easily apply to them. The AG is compelled to defend judges in civil suits while also prosecuting cases that county prosecutors do not.
In this case the defendant is being investigated under the MRPC and the AG holds a conflict of interest. The court has rules that the AG be disqualified from this particular case. The AG is being held to the MRPC in this instance. The court reversed and remanded.
In the case of People v. Waterstone, 485 Mich. 1016; 776 N.W.2d 113 (2010), Judge Mary Waterstone was accused of permitting witnesses to knowingly commit perjury at a criminal case. The parties to the case later filed a suit against her for this misconduct and the AG defended her and then subsequently prosecuted her for the same crime. She later filed a motion to have the Attorney General (AG) disqualified from the case for conflict of interest.
She feels that the AG’s prosecution of her is inconsistent with the Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, 1.10. As well as cited inconstancies with the case of Attorney General vs. Public Service Commission, 243 Mich. App 487; 625 NW2d 16 (2000).
The AG failed to notify the defendant that she was party to the initial investigation. The defendant claims she had confidential conversations with the AG that could have been shared with the prosecution side of the case. The AG should not be allowed to prosecute and defend the client all at once according to MRPC. In AG vs. PSC it was found that the Attorney General’s office has a different role in government and the rules of professional conduct cannot easily apply to them. The AG is compelled to defend judges in civil suits while also prosecuting cases that county prosecutors do not.
In this case the defendant is being investigated under the MRPC and the AG holds a conflict of interest. The court has rules that the AG be disqualified from this particular case. The AG is being held to the MRPC in this instance. The court reversed and remanded.
Maryland: Attorney Suspended for Making Knowingly False Statements
Link for opinion: http://mdcourts.gov/opinions/coa/2010/3a09ag.pdf
In Atty. Griev. Comm'n of Md. v. Brown, Misc. Docket AG No. 3, September Term, 2009, COURT OF APPEALS OF MARYLAND, 2010 Md. LEXIS 330, July 27, 2010, Filed, The Attorney Grievance Commission of Maryland (AGC) suspended a lawyer for 90 days for making knowingly false statements to the AGC and to his client, and for drawing a check on the client’s trust account.
The AGC confirmed the hearing judge’s assessment that the lawyer knowingly made false statements to the AGC and to his client violating Maryland Rules of Professional Conduct 4.1(a)(1), MRPC 8.1(a), MRPC 8.4(c) and (d), and that drawing a check on the client’s trust account violated Maryland Rule 16-609.
The attorney had knowingly made false statements three times—once to his client and twice to the AGC when the client asked them to investigate the situation. Because of the nature of his misconduct the court wanted to suspend the attorney for one year, and the attorney requested only 60 days stating that prior cases involved deceitful attorneys with additional misconduct. After weighing the mitigating factors of the case, the court agreed that 90 days was appropriate.
This case shows us the importance of the lawyer’s duty under Rule 4.1(a)(1) which states that “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law.” In addition, Rule 8.4(c) and (d) states that “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice…”
In Atty. Griev. Comm'n of Md. v. Brown, Misc. Docket AG No. 3, September Term, 2009, COURT OF APPEALS OF MARYLAND, 2010 Md. LEXIS 330, July 27, 2010, Filed, The Attorney Grievance Commission of Maryland (AGC) suspended a lawyer for 90 days for making knowingly false statements to the AGC and to his client, and for drawing a check on the client’s trust account.
The AGC confirmed the hearing judge’s assessment that the lawyer knowingly made false statements to the AGC and to his client violating Maryland Rules of Professional Conduct 4.1(a)(1), MRPC 8.1(a), MRPC 8.4(c) and (d), and that drawing a check on the client’s trust account violated Maryland Rule 16-609.
The attorney had knowingly made false statements three times—once to his client and twice to the AGC when the client asked them to investigate the situation. Because of the nature of his misconduct the court wanted to suspend the attorney for one year, and the attorney requested only 60 days stating that prior cases involved deceitful attorneys with additional misconduct. After weighing the mitigating factors of the case, the court agreed that 90 days was appropriate.
This case shows us the importance of the lawyer’s duty under Rule 4.1(a)(1) which states that “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law.” In addition, Rule 8.4(c) and (d) states that “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice…”
Kentucky: Lawyer Suspended for Pleading Guilty to a Felony
Link for Opinion: http://opinions.kycourts.net/sc/2009-SC-000549-KB.pdf
In Kentucky Bar Association v. Roger P. Elliott the Kentucky Bar Association requested that the Kentucky Supreme Court temporarily suspend Roger P. Elliott until a court order supersedes the court’s judgment. This in pursuant to SCR 3.166, the Kentucky Bar Association entering an order confirming the automatic temporary suspension of Roger P. Elliott.
On July 29, 2009, Elliott pled guild to theft of services already rendered, a Class D felony in Kentucky in violation of Statute 514.090. SCR 3.166 states, “any member of the Kentucky Bar Association who pleads guilty to at felony…in this State or in any other jurisdiction, shall be automatically suspended from the practice of law in this Commonwealth.” This “suspension shall take effect automatically beginning on the day following the plea of guilty…or upon the entry of the judgment, whichever occurs first. The court upheld SCR 3.166 and suspended Elliott and he had ten days to inform clients and courts of his dismissal.
This case shows the importance of being an ethical law abiding citizen while practicing law. Under SCR 3.166 if a legal professional pleads guilty to a felony they will be automatically suspended for their crime.
In Kentucky Bar Association v. Roger P. Elliott the Kentucky Bar Association requested that the Kentucky Supreme Court temporarily suspend Roger P. Elliott until a court order supersedes the court’s judgment. This in pursuant to SCR 3.166, the Kentucky Bar Association entering an order confirming the automatic temporary suspension of Roger P. Elliott.
On July 29, 2009, Elliott pled guild to theft of services already rendered, a Class D felony in Kentucky in violation of Statute 514.090. SCR 3.166 states, “any member of the Kentucky Bar Association who pleads guilty to at felony…in this State or in any other jurisdiction, shall be automatically suspended from the practice of law in this Commonwealth.” This “suspension shall take effect automatically beginning on the day following the plea of guilty…or upon the entry of the judgment, whichever occurs first. The court upheld SCR 3.166 and suspended Elliott and he had ten days to inform clients and courts of his dismissal.
This case shows the importance of being an ethical law abiding citizen while practicing law. Under SCR 3.166 if a legal professional pleads guilty to a felony they will be automatically suspended for their crime.
Kansas: Attorney and businessman hide over $700,000 from IRS
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In re re Minneman, 143 F.3d 274 (Kan. 2008), Clarence Punke and his attorney Joseph Minneman conspired together to hide over $790,000 dollars from the IRS by stating on Punke’s tax forms that he only made $100,000 a year for the years 1989-1991. Punke then bragged about how he was defrauding the IRS to a co-worker Sue Shank. Punke told his attorney Minneman to put the funds in other people’s names to hide them from the government, since Minneman was familiar with the state tax laws, this was beneficial to Punke to hide his funds efficiently.
Punke and Minneman were involved in a case together previously when they were involved in a bankruptcy case together, and this was how they met, in 1981. Punke was involved with not paying taxes in 1981 as well when he had a business called the Punke Bros. Inc. which as a company dissolved in 1983. Then Punke started up a new business called the Midwest Certified Welding and Testing (MCWT). Minneman handled the taxes for the first few years of the business, and then from then on Punke forwarded most of his income made from the company to Minneman, or Punke’s wife Brenda.
In 1991, Punke filed an amended tax return to claim substantial casualty losses, which caught the IRS’s attention which lead to a civil audit. In 1992, the IRS questioned Minneman about his involvement with Punke. Punke states that the reason why he was using different bank accounts with all the money that he was making because when he filed for bankruptcy, it was hard for him to open new bank accounts with the bankruptcy on his record.
In 1996, both Punke and Minneman were indicted by the Grand Jury on charges of conspiracy to impede the IRS. Punke was also charged with filing false tax returns for 1989, 1990 and 1991. Minneman received a 30 month sentence, along with 3 years of supervised release, and also to pay $25,000 dollars of restitution to the IRS. Punke got a 21 month sentence and 3 years supervised release, and also ordered him to pay $154,800 dollars restitution to the IRS.
In re re Minneman, 143 F.3d 274 (Kan. 2008), Clarence Punke and his attorney Joseph Minneman conspired together to hide over $790,000 dollars from the IRS by stating on Punke’s tax forms that he only made $100,000 a year for the years 1989-1991. Punke then bragged about how he was defrauding the IRS to a co-worker Sue Shank. Punke told his attorney Minneman to put the funds in other people’s names to hide them from the government, since Minneman was familiar with the state tax laws, this was beneficial to Punke to hide his funds efficiently.
Punke and Minneman were involved in a case together previously when they were involved in a bankruptcy case together, and this was how they met, in 1981. Punke was involved with not paying taxes in 1981 as well when he had a business called the Punke Bros. Inc. which as a company dissolved in 1983. Then Punke started up a new business called the Midwest Certified Welding and Testing (MCWT). Minneman handled the taxes for the first few years of the business, and then from then on Punke forwarded most of his income made from the company to Minneman, or Punke’s wife Brenda.
In 1991, Punke filed an amended tax return to claim substantial casualty losses, which caught the IRS’s attention which lead to a civil audit. In 1992, the IRS questioned Minneman about his involvement with Punke. Punke states that the reason why he was using different bank accounts with all the money that he was making because when he filed for bankruptcy, it was hard for him to open new bank accounts with the bankruptcy on his record.
In 1996, both Punke and Minneman were indicted by the Grand Jury on charges of conspiracy to impede the IRS. Punke was also charged with filing false tax returns for 1989, 1990 and 1991. Minneman received a 30 month sentence, along with 3 years of supervised release, and also to pay $25,000 dollars of restitution to the IRS. Punke got a 21 month sentence and 3 years supervised release, and also ordered him to pay $154,800 dollars restitution to the IRS.
Two Iowa Supreme Court Decisions Involve Sex Offense Allegations
Link for the opinion: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20070921/07-0507.pdf
In Iowa Supreme Court Atty. Disciplinary Board v. Blazek, 739 N.W. 2d 67, 2007 Iowa Sup. Lexis 115 (Iowa, 2007), the Iowa Supreme Court revoked a lawyer’s license and convicted said lawyer on four felony charges of sexual misconduct with children and sentenced him to 235 months in jail.
In 2006 the Iowa Supreme Court filed a complaint against Michael Blazek stating he violated the Iowa Code of Professional Responsibility for Lawyers Rule DR 1-102(A)(1)-A lawyer should not violate a disciplinary rule; Rule DR 1-102(A)(3)-an attorney should not involved themselves in moral misconduct; and Rule DR 1-102(A)(6)-an attorney should not engage in acts that reflect on the practice of law.
Blazek engaged in a conversation in a “male for male” chat room with whom he believed to be a 15 year- old boy. After 15 months of conversing with this boy, “Brian”, the conversations became increasingly sexual in nature and the two arranged to meet October 26th in Chicago. “Brian” was actually an Inspector with the Chicago Police investigating sex crimes. When Blazek arrived to meet the boy, he was arrested, his apartment searched, and computer seized with hundreds of photographs and movies of child pornography.
This was not Blazek’s first conviction. He pled guilty in 1997 to a felony charge of knowingly have sexual misconduct with a child under twelve and had his license suspended for two years.
This case teaches the importance of an attorney’s duty under Rule DR 1-102(A)(1), section (A)(3), and section(A)(6) to not violate a disciplinary rule and involve themselves in moral misconduct that reflects the practice of law.
In Iowa Supreme Court Atty. Disciplinary Board v. Blazek, 739 N.W. 2d 67, 2007 Iowa Sup. Lexis 115 (Iowa, 2007), the Iowa Supreme Court revoked a lawyer’s license and convicted said lawyer on four felony charges of sexual misconduct with children and sentenced him to 235 months in jail.
In 2006 the Iowa Supreme Court filed a complaint against Michael Blazek stating he violated the Iowa Code of Professional Responsibility for Lawyers Rule DR 1-102(A)(1)-A lawyer should not violate a disciplinary rule; Rule DR 1-102(A)(3)-an attorney should not involved themselves in moral misconduct; and Rule DR 1-102(A)(6)-an attorney should not engage in acts that reflect on the practice of law.
Blazek engaged in a conversation in a “male for male” chat room with whom he believed to be a 15 year- old boy. After 15 months of conversing with this boy, “Brian”, the conversations became increasingly sexual in nature and the two arranged to meet October 26th in Chicago. “Brian” was actually an Inspector with the Chicago Police investigating sex crimes. When Blazek arrived to meet the boy, he was arrested, his apartment searched, and computer seized with hundreds of photographs and movies of child pornography.
This was not Blazek’s first conviction. He pled guilty in 1997 to a felony charge of knowingly have sexual misconduct with a child under twelve and had his license suspended for two years.
This case teaches the importance of an attorney’s duty under Rule DR 1-102(A)(1), section (A)(3), and section(A)(6) to not violate a disciplinary rule and involve themselves in moral misconduct that reflects the practice of law.
Indiana: Malpractice claims against attorney to insurer
Link for opinion: 930 N.E.2d 53 (can access through Westlaw)
In Ashby v. Davidson, 930 N.E.2d 53 (Ind. 2010), clients filed suit against Attorney Davidson for malpractice and negligence. Davidson was disbarred and later participated in crimes across the nation. The issue is whether Davidson’s insurer was responsible for the claims and if they had been properly filed.
Prior to Davidson’s spurts of criminal behavior he was insured through Bar Plan over a period of roughly two years. Multiple complaints were filed for his negligence or breach of care to various clients. Bar Plan, Davidson’s previous insurer, requested a motion for declaratory judgment to which the trial court awarded. The appellate court then had to look to see if there was error.
Bar Plan brought forth the issues that Davidson did not notify them of the suits nor did he assist in the investigation of the claims. They were then awarded summary judgment. However, the “clients” disagreed with this result and brought forth the issue to the higher courts. Bar Plan pointed out that their client did not give notice as were the conditions that were to be adhered to and that the claims hadn’t been filed in the time period covered. Although, the courts found that because of Davidson’s fleeing and criminal actions he was not there to give proper notice for the actions and that the clients had filed their claims within the appropriate time frame.
In sum, the higher courts held that the clients’ notice was proper and true to which they reversed and remanded the trial court’s decision. Bar Plan attempted to use similar terms as in Paint Shuttle, however the court found that there was not adequate facts to connect the two cases. This case demonstrates how attorney’s have insurance to cover for negligence and malpractice and that there are circumstances where, should the attorney be M.I.A, the clients still have an opportunity for action. Clearly, this attorney was involved in multiple situations that not only violated the Rules of Professional Conduct, but also state and possible federal crimes.
In Ashby v. Davidson, 930 N.E.2d 53 (Ind. 2010), clients filed suit against Attorney Davidson for malpractice and negligence. Davidson was disbarred and later participated in crimes across the nation. The issue is whether Davidson’s insurer was responsible for the claims and if they had been properly filed.
Prior to Davidson’s spurts of criminal behavior he was insured through Bar Plan over a period of roughly two years. Multiple complaints were filed for his negligence or breach of care to various clients. Bar Plan, Davidson’s previous insurer, requested a motion for declaratory judgment to which the trial court awarded. The appellate court then had to look to see if there was error.
Bar Plan brought forth the issues that Davidson did not notify them of the suits nor did he assist in the investigation of the claims. They were then awarded summary judgment. However, the “clients” disagreed with this result and brought forth the issue to the higher courts. Bar Plan pointed out that their client did not give notice as were the conditions that were to be adhered to and that the claims hadn’t been filed in the time period covered. Although, the courts found that because of Davidson’s fleeing and criminal actions he was not there to give proper notice for the actions and that the clients had filed their claims within the appropriate time frame.
In sum, the higher courts held that the clients’ notice was proper and true to which they reversed and remanded the trial court’s decision. Bar Plan attempted to use similar terms as in Paint Shuttle, however the court found that there was not adequate facts to connect the two cases. This case demonstrates how attorney’s have insurance to cover for negligence and malpractice and that there are circumstances where, should the attorney be M.I.A, the clients still have an opportunity for action. Clearly, this attorney was involved in multiple situations that not only violated the Rules of Professional Conduct, but also state and possible federal crimes.
Illinois Contingency Fee Case
Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu
In In re Bertucci, 926 N.E.2d 833 (Ill.2010), the Appellate Court of Illinois Donald T. Bertucci represented a former client Lourdes Rodriguez defendant client in a medical malpractice case, but allegedly kept a fee for himself after settling the case. The lawyer has been sued in state court and named in attorney disciplinary proceedings.
In the State Court action, the lawyer was sued on "claims of breach of contract, unjust enrichment, conversion, breach of fiduciary duty, fraud, and violation of the Illinois statute which limits contingent legal fees in medical malpractice actions”. Illinois State Statute Sec. 2-1114 Contingent fees for attorneys in medical malpractice.
The Illinois Appellate Court held that there was no duty to defend or indemnify under the lawyer's policy. The Illinois Courts compared the Policy Definition of covered "Damages" with the damages actually sought against the lawyer in the underlying lawsuit. The Courts concluded that there were no covered "Damages" at issue there. The former client's State Court lawsuit "alleges only non-covered, direct and consequential injuries from the excessive legal fees (the lawyer-Policyholder) charged against her assets; it does not allege 'damages' within the meaning of the policy."In the Disciplinary Proceeding, the Illinois Trial Court had ruled that the event in question qualified as covered "legal services" covered under the Policy's "supplementary payments provision" for disciplinary proceedings. The Illinois Appellate Court reversed. There were no covered "legal services" at issue in the Disciplinary Proceeding, the Court held, any more than there was covered “legal services” at issue in the underlying State Court lawsuit, in the Appellate Courts view.
This case teaches the importance of knowing the fees based on contingency Rule 1.5 (f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.
In In re Bertucci, 926 N.E.2d 833 (Ill.2010), the Appellate Court of Illinois Donald T. Bertucci represented a former client Lourdes Rodriguez defendant client in a medical malpractice case, but allegedly kept a fee for himself after settling the case. The lawyer has been sued in state court and named in attorney disciplinary proceedings.
In the State Court action, the lawyer was sued on "claims of breach of contract, unjust enrichment, conversion, breach of fiduciary duty, fraud, and violation of the Illinois statute which limits contingent legal fees in medical malpractice actions”. Illinois State Statute Sec. 2-1114 Contingent fees for attorneys in medical malpractice.
The Illinois Appellate Court held that there was no duty to defend or indemnify under the lawyer's policy. The Illinois Courts compared the Policy Definition of covered "Damages" with the damages actually sought against the lawyer in the underlying lawsuit. The Courts concluded that there were no covered "Damages" at issue there. The former client's State Court lawsuit "alleges only non-covered, direct and consequential injuries from the excessive legal fees (the lawyer-Policyholder) charged against her assets; it does not allege 'damages' within the meaning of the policy."In the Disciplinary Proceeding, the Illinois Trial Court had ruled that the event in question qualified as covered "legal services" covered under the Policy's "supplementary payments provision" for disciplinary proceedings. The Illinois Appellate Court reversed. There were no covered "legal services" at issue in the Disciplinary Proceeding, the Court held, any more than there was covered “legal services” at issue in the underlying State Court lawsuit, in the Appellate Courts view.
This case teaches the importance of knowing the fees based on contingency Rule 1.5 (f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.
PERRY CONVICTION UPHELD; ALLEGED PROSECUTORIAL MISCONDUCT
This case concerns the Defendant appealing the judgment of the District Court of the First Judicial District, State of Idaho, Kootenai County. This court convicted him of two counts of sexual battery of a child under the age of sixteen for acts against an eleven-year-old victim and two counts of misdemeanor battery for acts against a thirteen-year-old victim. Two young foster girls told their foster mother that Defendant engaged in sexual contact with them during overnight visits at his home. The district court excluded evidence that the younger had lied about a shower spraying incident; offered in an attempt to impeach testimony. The court wanted to avoid possible jury confusion and trial time wasted. The court applied Idaho R. Evid. 412( e) (2) in establishing what is considered a “sex crime” and the admissibility in a sex offense case of evidence of victim's past sexual behavior was inadmissible.
According to Defendant’s Petition for Habeus Corpus, the prosecutor apparently committed misconduct through attempts to entice vouching testimony from witnesses; however, defense counsel did not immediately object. Defendant did not demonstrate at least two errors existed and thus the cumulative error review could not be applied. Cumulative Error Review is an analysis of the alleged errors committed by prosecution. After Defense counsel initiated questioning on the girls’ truthfulness, on redirect, the prosecutor continued strongly his intent to gain vouching testimony by questioning the foster father about the girls’ honesty in their faces. Defense counsel neither objected to the prosecutor's line of questioning, nor did he conduct follow-up questioning of the foster father.
On appeal Perry argued that the prosecutor committed five acts of misconduct during the course of the proceedings; however, Perry only objected to one of these alleged acts. Perry argued that each act of misconduct not followed by a contemporaneous objection constitutes fundamental error, and that none of the acts, whether objected to or not, are harmless. In State v. Field, the court stated its standard of review for claims of prosecutorial misconduct:
• When there is a contemporaneous objection the court determines factually if there was prosecutorial misconduct, [and then]
• it determines whether the error was harmless.
The court said that when there is no contemporaneous objection a conviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in fundamental error.(my own emphasis). However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007)
Summarizing the U.S. Supreme Court in Cupp v. Naughten, federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) [the errors] "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400¬01, 38 L.Ed.2d 368 (1973). The present Idaho case failed to satisfy the cumulative errors test where prosecutorial misconduct was alleged.
The Idaho Supreme Court affirmed the lower court’s decision.
According to Defendant’s Petition for Habeus Corpus, the prosecutor apparently committed misconduct through attempts to entice vouching testimony from witnesses; however, defense counsel did not immediately object. Defendant did not demonstrate at least two errors existed and thus the cumulative error review could not be applied. Cumulative Error Review is an analysis of the alleged errors committed by prosecution. After Defense counsel initiated questioning on the girls’ truthfulness, on redirect, the prosecutor continued strongly his intent to gain vouching testimony by questioning the foster father about the girls’ honesty in their faces. Defense counsel neither objected to the prosecutor's line of questioning, nor did he conduct follow-up questioning of the foster father.
On appeal Perry argued that the prosecutor committed five acts of misconduct during the course of the proceedings; however, Perry only objected to one of these alleged acts. Perry argued that each act of misconduct not followed by a contemporaneous objection constitutes fundamental error, and that none of the acts, whether objected to or not, are harmless. In State v. Field, the court stated its standard of review for claims of prosecutorial misconduct:
• When there is a contemporaneous objection the court determines factually if there was prosecutorial misconduct, [and then]
• it determines whether the error was harmless.
The court said that when there is no contemporaneous objection a conviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in fundamental error.(my own emphasis). However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007)
Summarizing the U.S. Supreme Court in Cupp v. Naughten, federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) [the errors] "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400¬01, 38 L.Ed.2d 368 (1973). The present Idaho case failed to satisfy the cumulative errors test where prosecutorial misconduct was alleged.
The Idaho Supreme Court affirmed the lower court’s decision.
Hawaiian Attorney Allowed to Resign In Lieu of Dicscipline Action
Former attorney, Curtis T. Narimatsu, was found guilty of violating the Rules of the Supreme Court of the State of Hawaii Ethics. Narimatsu abused and violated his authority by abandoning his clients while misrepresenting them and not providing the services of which he was paid to perform as their attorney. In addition, Narimatsu mishandled client funds, intentionally mislabeled accounts and misused funds for personal use. Narimatsu also admitted to committing fraud and being dishonest with his clients.
Prior to the disciplinary action that resulted in his resignation, Narimatsu failed to adhere to previous disciplinary investigations of him conducted by the Hawaii Rules of Professional Conduct. Narimatsu had already been suspended since September 22, 2009 for ethic violations. Narimatsu does not have an active practice for this reason. Rules violated include Rules 1.1, 1.3, 1.4, 1.15, 1.16, 3.4, and 8.4 of the Hawaii Rules of Professional Conduct.
Due to the overwhelming, admitted unethical violations in pursuant to Rule 2.14, in lieu of Disciplinary Action the State of Hawaii granted immediate resignation of Curtis T. Narimatsu.
www.courts.state.hi.us/opinions
Prior to the disciplinary action that resulted in his resignation, Narimatsu failed to adhere to previous disciplinary investigations of him conducted by the Hawaii Rules of Professional Conduct. Narimatsu had already been suspended since September 22, 2009 for ethic violations. Narimatsu does not have an active practice for this reason. Rules violated include Rules 1.1, 1.3, 1.4, 1.15, 1.16, 3.4, and 8.4 of the Hawaii Rules of Professional Conduct.
Due to the overwhelming, admitted unethical violations in pursuant to Rule 2.14, in lieu of Disciplinary Action the State of Hawaii granted immediate resignation of Curtis T. Narimatsu.
www.courts.state.hi.us/opinions
“Georgia: The court responds to a petition for voluntary discipline by a lawyer who admits to submitting falsified documents in a pro se case.”
Link: http://www.gasupreme.us/sc-op/pdf/s10y0981.pdf
In re Manning-Wallace 695 S.E.2d 237, the court rejected a petition for voluntary discipline of a Georgia Lawyer, Manning-Wallace who knowingly submitted falsified documents in a pro se case. The Bar Association of Georgia accepted the petition for voluntary panel review, but the court decided that the reprimand was not appropriate for violating both Rule 3.3 (a) (4) and 3.4 (b) (1) of the Georgia Rules of Professional Conduct.
The facts show that Manning-Wallace was in a 2003 car accident that resulted in injuries for which medical bills were incurred. While representing herself, the Manning-Wallace knowingly submitted statements of bills that were later proven to be fraudulent by the medical facility that the alleged medical care took place. Although Manning-Wallace claims to have known that the documents were false at the time of submission, she denies ever “creating” them.
Rule 3.3 of the Georgia Rules of Professional Conduct, provides specifically that "[a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false." This implies that although Manning-Wallace may not be guilty of actually fabricating documents, she was still aware of their invalidity at the time of submission and therefore in violation of Rule 3.3.
Rule 3.4 (b) (1) of the Georgia Rules of Professional Conduct, provides that “lawyers owe a similar duty of fairness to opposing parties and their counsel, which specifically includes the obligation not to ‘falsify evidence.’” This specifically illustrates that Manning-Wallace breached the duty of fairness to opposing counsel by knowingly submitting falsified documents.
The maximum punishment for violating both Rule 3.3 and 3.4 of the Georgia Rules of Professional Conduct is disbarment, therefore the courts overrules the State of Georgia Bar Association’s decision to accept the petition for voluntary discipline.
In re Manning-Wallace 695 S.E.2d 237, the court rejected a petition for voluntary discipline of a Georgia Lawyer, Manning-Wallace who knowingly submitted falsified documents in a pro se case. The Bar Association of Georgia accepted the petition for voluntary panel review, but the court decided that the reprimand was not appropriate for violating both Rule 3.3 (a) (4) and 3.4 (b) (1) of the Georgia Rules of Professional Conduct.
The facts show that Manning-Wallace was in a 2003 car accident that resulted in injuries for which medical bills were incurred. While representing herself, the Manning-Wallace knowingly submitted statements of bills that were later proven to be fraudulent by the medical facility that the alleged medical care took place. Although Manning-Wallace claims to have known that the documents were false at the time of submission, she denies ever “creating” them.
Rule 3.3 of the Georgia Rules of Professional Conduct, provides specifically that "[a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false." This implies that although Manning-Wallace may not be guilty of actually fabricating documents, she was still aware of their invalidity at the time of submission and therefore in violation of Rule 3.3.
Rule 3.4 (b) (1) of the Georgia Rules of Professional Conduct, provides that “lawyers owe a similar duty of fairness to opposing parties and their counsel, which specifically includes the obligation not to ‘falsify evidence.’” This specifically illustrates that Manning-Wallace breached the duty of fairness to opposing counsel by knowingly submitting falsified documents.
The maximum punishment for violating both Rule 3.3 and 3.4 of the Georgia Rules of Professional Conduct is disbarment, therefore the courts overrules the State of Georgia Bar Association’s decision to accept the petition for voluntary discipline.
D.C. Attorney Appeals Decision of Disbarment Due to Intentional Dishonesty
In In re Guberman,978 A.2d 200 D.C.(2009), the D.C. Court of Appeals decided to suspend Attorney Mark Guberman for 18 months with requirement that after resumption of practice of law the attorney attend a course on professional responsibility, was warranted, as non-identical reciprocal discipline .
The District of Columbia Bar Rules create a rebuttable presumption that, when a member of the District of Columbia Bar has been disbarred, suspended, or placed on probation by another disciplining court, the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. Bar Rule XI, § 11.The Minnesota Supreme Court affirmed the referee’s conclusions that the lawyer knowingly made a false statement of fact to a tribunal in violation of Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c), and 8.4(d) and intended to deceive the court, in violation of Minn. R. Prof. Conduct. 8.4(c).
On April 13, 2006, the Court of Appeals of Maryland disbarred Mark S. Guberman, concluding that he engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct (“MRPC”) and in conduct prejudicial to the administration of justice, in violation of MRPC Rule 8.4(d).FN1 After Bar Counsel reported the Maryland discipline to this Court, we issued an interim order suspending respondent from practice in this jurisdiction and directing the Board on Professional Responsibility (the “Board”) to provide its recommendation as to whether (1) this court should impose identical, greater or lesser discipline as reciprocal discipline, or (2) the Board should commence an original-discipline proceeding. In its Report and Recommendation dated November 6, 2007 (“Report”), the Board recommended that we impose non-identical reciprocal discipline-specifically, a suspension of 18 months. We now adopt the Board's recommendation.
Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) ... by falsely representing to Mr. Cooper and other representatives of the firm that he had filed an appeal in [the client's] case. He engaged in conduct prejudicial to the administration of justice [in violation of Rule 8.4(d)] by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court.
The District of Columbia Bar Rules create a rebuttable presumption that, when a member of the District of Columbia Bar has been disbarred, suspended, or placed on probation by another disciplining court, the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. Bar Rule XI, § 11.The Minnesota Supreme Court affirmed the referee’s conclusions that the lawyer knowingly made a false statement of fact to a tribunal in violation of Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c), and 8.4(d) and intended to deceive the court, in violation of Minn. R. Prof. Conduct. 8.4(c).
On April 13, 2006, the Court of Appeals of Maryland disbarred Mark S. Guberman, concluding that he engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct (“MRPC”) and in conduct prejudicial to the administration of justice, in violation of MRPC Rule 8.4(d).FN1 After Bar Counsel reported the Maryland discipline to this Court, we issued an interim order suspending respondent from practice in this jurisdiction and directing the Board on Professional Responsibility (the “Board”) to provide its recommendation as to whether (1) this court should impose identical, greater or lesser discipline as reciprocal discipline, or (2) the Board should commence an original-discipline proceeding. In its Report and Recommendation dated November 6, 2007 (“Report”), the Board recommended that we impose non-identical reciprocal discipline-specifically, a suspension of 18 months. We now adopt the Board's recommendation.
Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) ... by falsely representing to Mr. Cooper and other representatives of the firm that he had filed an appeal in [the client's] case. He engaged in conduct prejudicial to the administration of justice [in violation of Rule 8.4(d)] by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court.
Delaware: Attorneys to Face Consequences for Real Estate Error
Plaintiff, Regina Shea filed a malpractice suit against defendant lawyer Raymond D. Armstrong of Delcollo & Werb P.A.. The Superior Court of the State of Delaware in and for New Castle County granted the lawyers' motion to dismiss, holding that the complaint was time-barred. The client appealed.
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
The Plaintiff, Regina Shea claimed that she suffered damages due to Raymond D. Armstong, Esq., error in failure to remove her ex-husband's name, Brian Bucher from the title or deed to real estate; at the time of a refinancing after her divorce or due to the lawyers' failure to inform her that the ex-husband's name remained on the deed. The Plaintiff’s complaint alleged that the attorney Raymond D. Armstrong of Delcollo & Werb P.A., represented to Ms. Shea that the property was in her name only. In the appellate court it was found that the Ms. Shea’s ex-husband’s name was continuing injury, therefore, occurred on date of the refinancing. However, the complaint was filed almost a year after the Del. Code Ann. tit. 10, § 8106 three-year statute of limitations expired; the claim was time-barred unless the "time of discovery" rule applied. Because the trial court erred to view the complaint n the light most favorable to the non-moving party, the appellate court found that the Ms. Shea was unaware that the ex-husband's name remained on the deed until she tried to refinance again, more than two years later. The Plaintiff, Ms. Shea was blamelessly ignorant of her inherently unknowable claim until she discovered the injury at the time of the later refinancing. Therefore, the "time of discovery" rule applied and the complaint was timely.
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
Connecticut: Thinking about bringing lawyer to court for legal malpractice? Think again.
Link for opinion: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP109/109ap426.pdf
In Ackerly and Brown, LLP v Richard Smithies among many others found on the State of Connecticut Judicial Branch website (http://jud.ct.gov/) the issue of legal malpractice was brought forward but the court system ruled on the side of the attorneys.
In this case the attorney Michael Sconyers, partner in Ackerly and Brown, LLP, represented the Smithies’ in a lawsuit involving a failed residential lease. A third party sued them for damages. Conyers informed that the case could be settled for a lesser amount and to bring this to court would be expensive and the outcome would be uncertain. After a four day trial, they jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. The damages ended up being reduced to $8000.
Sconyers filed a complaint seeking collecting of the outstanding balance owed by the Smithies’. Smithies’ filed and answer and counterclaim essentially claiming Sconyers had committed legal malpractice. Prior to the start of evidence, the plaintiff filed a motion to preclude the defendants from presenting any evidence regarding legal malpractice. The reason for filing this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice. In the decision handed down by the court the absence of expert testimony proved fatal to the defendants’ claim of legal malpractice. In the Civil Jury Instructions 3.8-5 it is stated that malpractice is professional negligence. “Because jurors are probably unfamiliar with legal procedures, methods, etc…cannot be expected to know the demands of proper legal representation. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client….” (http://www.jud.ct.gov/JI/civil/part3/3.8-5.htm) If it is required that an expert witness is a necessary that can be a HUGE deterrent to clients wanting to bring a legal malpractice against their attorney. The cost might not be worth the effort.
After further research on the State Grievance Committee website on the State Connecticut Judicial Branch website many of the decision this was affirmed that most decision went in favor of the attorney and very rarely were recommended to higher courts for decision for discipline. When there was a recommendation for discipline to find out what that was for the particular attorney was difficult if not impossible to locate.
In Ackerly and Brown, LLP v Richard Smithies among many others found on the State of Connecticut Judicial Branch website (http://jud.ct.gov/) the issue of legal malpractice was brought forward but the court system ruled on the side of the attorneys.
In this case the attorney Michael Sconyers, partner in Ackerly and Brown, LLP, represented the Smithies’ in a lawsuit involving a failed residential lease. A third party sued them for damages. Conyers informed that the case could be settled for a lesser amount and to bring this to court would be expensive and the outcome would be uncertain. After a four day trial, they jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. The damages ended up being reduced to $8000.
Sconyers filed a complaint seeking collecting of the outstanding balance owed by the Smithies’. Smithies’ filed and answer and counterclaim essentially claiming Sconyers had committed legal malpractice. Prior to the start of evidence, the plaintiff filed a motion to preclude the defendants from presenting any evidence regarding legal malpractice. The reason for filing this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice. In the decision handed down by the court the absence of expert testimony proved fatal to the defendants’ claim of legal malpractice. In the Civil Jury Instructions 3.8-5 it is stated that malpractice is professional negligence. “Because jurors are probably unfamiliar with legal procedures, methods, etc…cannot be expected to know the demands of proper legal representation. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client….” (http://www.jud.ct.gov/JI/civil/part3/3.8-5.htm) If it is required that an expert witness is a necessary that can be a HUGE deterrent to clients wanting to bring a legal malpractice against their attorney. The cost might not be worth the effort.
After further research on the State Grievance Committee website on the State Connecticut Judicial Branch website many of the decision this was affirmed that most decision went in favor of the attorney and very rarely were recommended to higher courts for decision for discipline. When there was a recommendation for discipline to find out what that was for the particular attorney was difficult if not impossible to locate.
Colorado: Determining the Reasonableness of Fee Agreements.
Berra v Springer and Steinberg PC, 2010 Colo. App. LEXIS 1167.
Case Opinion Link: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/08CA2503.pdf.
Alternate Link (includes links to cited cases): http://scholar.google.com/scholar_case?case=17242722455507956809&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Springer and Steinberg P.C. and Jeffrey Springer (S&S, collectively) appealed the trial court’s ruling in favor of Cathy Berra which resulted in a refund of a portion of a contingency fee. Judgment affirmed.
Cathy Berra hired S&S on a contingency fee agreement to represent her in the collection of a judgment against George Wilkinson that she was awarded in a personal injury case. S&S was unsuccessful in collecting anything from Wilkinson, and they failed to revive Berra’s judgment lien on Wilkinson’s property in Pitkin County, losing first position and requiring a new lien to be filed. Years later, Wilkinson was diagnosed with a terminal illness and sold his property to Pitkin County for an amount large enough to cover Berra’s judgment plus interest. S&S received thirty percent of the judgment plus interest in accordance with the contingency fee agreement.
Berra, believing the fee to be excessive, brought action against S&S, filing claims for declaratory judgment, unjust enrichment, and breach of contract. The trial court, applying the criteria in Chapter 23.3 of the Colorado Rules of Civil Procedure and Rule 1.5 of the Colorado Rules of Professional Conduct to the facts of the case, found that the fees were indeed unreasonable and excessive. The trial court then, using quantum meruit analysis, calculated the reasonable fee amount that S&S was entitled to, based on the number of hours worked, the hourly rate, and the level of risk involved.
The trial court found the contingency fee agreement unreasonable and excessive based on the following facts: (1) although a contingency fee was appropriate due to the risk involved in Berra’s case, a 30% contingency fee was not typical for the collection of a pre-existing judgment, and, in retrospect, the risk to Berra and S&S was minimal given the actual value of Wilkinson’s property (Rule 1.5[a][3]); (2) the resolution of the case was not brought about by the efforts and/or skills of S&S, but by Wilkinson’s fortuitous decision to sell his property for a price that would cover the judgment plus interest (Rule 1.5[a][1]; and (3) collections cases are not overly difficult as they are “governed by very clear rules, statutes, and case law,” therefore the case did not require a high level of skill (Rule 1.5[a][1]).
In their appeal, S&S claimed that the trial court erred in applying quantum meruit analysis without first finding the contingency fee agreement invalid and unenforceable. The appellate court disagreed, saying that the invalidity and unenforceability of the agreement was implied by both the circumstances of the case and from the trial court’s finding that the fees were unreasonable and excessive.
S&S also took issue with the trial court’s analysis of the enforceability of the fee agreement, claiming that the trial court erred when they retrospectively evaluated the risk and difficult of the case instead of basing the evaluation solely on the risk and difficulty of the case as understood at the time of the contract. The appellate court disagreed again, stating that the court could consider the “amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney” when evaluating the enforceability of the agreement. People v. Nutt, 696 P.2d 242, 248 (Colo. 1984).
This case offers a detailed look into how the courts evaluate the reasonableness of contingency fee agreements based on the criteria in Rule 1.5. It also serves as a reminder to attorneys that their fees need to be earned, not just enjoyed.
Case Opinion Link: http://www.courts.state.co.us/Courts/Court_of_Appeals/opinion/2010/08CA2503.pdf.
Alternate Link (includes links to cited cases): http://scholar.google.com/scholar_case?case=17242722455507956809&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Springer and Steinberg P.C. and Jeffrey Springer (S&S, collectively) appealed the trial court’s ruling in favor of Cathy Berra which resulted in a refund of a portion of a contingency fee. Judgment affirmed.
Cathy Berra hired S&S on a contingency fee agreement to represent her in the collection of a judgment against George Wilkinson that she was awarded in a personal injury case. S&S was unsuccessful in collecting anything from Wilkinson, and they failed to revive Berra’s judgment lien on Wilkinson’s property in Pitkin County, losing first position and requiring a new lien to be filed. Years later, Wilkinson was diagnosed with a terminal illness and sold his property to Pitkin County for an amount large enough to cover Berra’s judgment plus interest. S&S received thirty percent of the judgment plus interest in accordance with the contingency fee agreement.
Berra, believing the fee to be excessive, brought action against S&S, filing claims for declaratory judgment, unjust enrichment, and breach of contract. The trial court, applying the criteria in Chapter 23.3 of the Colorado Rules of Civil Procedure and Rule 1.5 of the Colorado Rules of Professional Conduct to the facts of the case, found that the fees were indeed unreasonable and excessive. The trial court then, using quantum meruit analysis, calculated the reasonable fee amount that S&S was entitled to, based on the number of hours worked, the hourly rate, and the level of risk involved.
The trial court found the contingency fee agreement unreasonable and excessive based on the following facts: (1) although a contingency fee was appropriate due to the risk involved in Berra’s case, a 30% contingency fee was not typical for the collection of a pre-existing judgment, and, in retrospect, the risk to Berra and S&S was minimal given the actual value of Wilkinson’s property (Rule 1.5[a][3]); (2) the resolution of the case was not brought about by the efforts and/or skills of S&S, but by Wilkinson’s fortuitous decision to sell his property for a price that would cover the judgment plus interest (Rule 1.5[a][1]; and (3) collections cases are not overly difficult as they are “governed by very clear rules, statutes, and case law,” therefore the case did not require a high level of skill (Rule 1.5[a][1]).
In their appeal, S&S claimed that the trial court erred in applying quantum meruit analysis without first finding the contingency fee agreement invalid and unenforceable. The appellate court disagreed, saying that the invalidity and unenforceability of the agreement was implied by both the circumstances of the case and from the trial court’s finding that the fees were unreasonable and excessive.
S&S also took issue with the trial court’s analysis of the enforceability of the fee agreement, claiming that the trial court erred when they retrospectively evaluated the risk and difficult of the case instead of basing the evaluation solely on the risk and difficulty of the case as understood at the time of the contract. The appellate court disagreed again, stating that the court could consider the “amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney” when evaluating the enforceability of the agreement. People v. Nutt, 696 P.2d 242, 248 (Colo. 1984).
This case offers a detailed look into how the courts evaluate the reasonableness of contingency fee agreements based on the criteria in Rule 1.5. It also serves as a reminder to attorneys that their fees need to be earned, not just enjoyed.
California: Law Firm allegedly Violates Consumer Protection Laws
In, Patrick Kirk V. First American Title Insurance Company; It started with class actions involving ethical violations including: kick-backs to lenders for referring clients, escrow related fees exceeding state limits, while not giving discounts to clients who qualified for them, and specific fee over-charges (messenger fees, wire transfer fees, and sub escrow fees).
Four years after the litigation began for the class actions, the attorneys representing the First American Title Ins. Company, moved to another law firm. An attorney from their new firm had previously received confidential information about the First American Title Ins. co. cases. When the firm learned of this previous contact regarding the attorney they established an ethical screening around said attorney. Leading to an order from the Superior Court of Los Angeles County, which disqualified their firm based on allegations of violating consumer protection laws.
The firm appealed the Superior Courts decision, at which time the Court of Appeals of California, 2nd Appellate District, Division 3, reviewed whether the disqualification was legitimate based on the facts. The outcome of court of appeals decision reversed the order that had disqualified the firm and remanded the case to the trial courts for further proceedings, as per (Rules of Professional Conduct, Rule 3-310-E).
(2010). Kirk v. First American Title Ins. Co. California: Lexis Nexis. Retrieved August 22, 2010, from LexisNexis (2010 Cal. App. LEXIS 478 ).
In the after-math of these proceedings and while seeking more information I found that By a six to one vote, the California State Supreme Court declined to review the Court of Appeal decision in Kirk v. First American Title Insurance Company (2010) 183 Cal.App.4th 776.
(2010). Retrieved September 4, 2010, from http://www.lawfirmrisk.com/2010/06/california-supreme-court-upholds.html
legalethicsforum.com
(2010). PATRICK KIRK et al., Plaintiffs and Respondents, v. FIRST AMERICAN TITLE INSURANCE COMPANY et al., Defendants and Appellants. Retrieved September 3, 2010, from Lexis Nexis Academic.
Four years after the litigation began for the class actions, the attorneys representing the First American Title Ins. Company, moved to another law firm. An attorney from their new firm had previously received confidential information about the First American Title Ins. co. cases. When the firm learned of this previous contact regarding the attorney they established an ethical screening around said attorney. Leading to an order from the Superior Court of Los Angeles County, which disqualified their firm based on allegations of violating consumer protection laws.
The firm appealed the Superior Courts decision, at which time the Court of Appeals of California, 2nd Appellate District, Division 3, reviewed whether the disqualification was legitimate based on the facts. The outcome of court of appeals decision reversed the order that had disqualified the firm and remanded the case to the trial courts for further proceedings, as per (Rules of Professional Conduct, Rule 3-310-E).
(2010). Kirk v. First American Title Ins. Co. California: Lexis Nexis. Retrieved August 22, 2010, from LexisNexis (2010 Cal. App. LEXIS 478 ).
In the after-math of these proceedings and while seeking more information I found that By a six to one vote, the California State Supreme Court declined to review the Court of Appeal decision in Kirk v. First American Title Insurance Company (2010) 183 Cal.App.4th 776.
(2010). Retrieved September 4, 2010, from http://www.lawfirmrisk.com/2010/06/california-supreme-court-upholds.html
legalethicsforum.com
(2010). PATRICK KIRK et al., Plaintiffs and Respondents, v. FIRST AMERICAN TITLE INSURANCE COMPANY et al., Defendants and Appellants. Retrieved September 3, 2010, from Lexis Nexis Academic.
Arkansas: Attorney Disciplinary Proceedings
Plouffe v. Ligon
On December 1, 2008 appellant attorney, Plouffe, sued the appellee director of professional conduct office, Ligon, to enjoin attorney disciplinary proceedings the director initiated against the attorney. Such disciplinary proceedings relate to a brief filed by Plouffe on July 5, 2007 in an appeal before the Arkansas Court of Appeals. In the opinion, a three-judge panel concluded that Plouffe’s brief contained inappropriate and irrelevant remarks, and such remarks came close to a breach in the Model Rules of Professional Conduct. After Ligon investigated the Chamberlain brief, he filed an ethics complaint against Plouffe before the Committee on Professional Conduct. This complaint claimed that Plouffe violated Rule 8.4(d) of the Arkansas Rules of Professional Conduct which provides that professional misconduct is that in when the lawyer engages in conduct that is prejudicial to the administration of justice. After this complaint, Plouffe filed an action against Ligon asking to enjoin the attorney disciplinary proceedings. Ligon moved to dismiss the complaint arguing the court should avoid hearing this matter under the Younger abstention doctrine; the district court agreed that the Younger abstention applied and dismissed the complaint. Plouffe appealed.
The Younger abstention doctrine provides that the federal courts should abstain from using jurisdiction when 1) there is an ongoing state proceeding, 2) which implicates important state interests, and 3) there is an adequate opportunity to raise any relevant federal questions in such a proceeding. In Plouffe’s appeal, he argued that two requirements for abstention are not met, requirement 2 and 3. Also, Plouffe argues that his statements made in the Chamberlain brief were protected under the First Amendment. The courts found that the presence of such requirements in question did exist thus affirming the judgment of the district court and dismissing Plouffe’s complaint.
On December 1, 2008 appellant attorney, Plouffe, sued the appellee director of professional conduct office, Ligon, to enjoin attorney disciplinary proceedings the director initiated against the attorney. Such disciplinary proceedings relate to a brief filed by Plouffe on July 5, 2007 in an appeal before the Arkansas Court of Appeals. In the opinion, a three-judge panel concluded that Plouffe’s brief contained inappropriate and irrelevant remarks, and such remarks came close to a breach in the Model Rules of Professional Conduct. After Ligon investigated the Chamberlain brief, he filed an ethics complaint against Plouffe before the Committee on Professional Conduct. This complaint claimed that Plouffe violated Rule 8.4(d) of the Arkansas Rules of Professional Conduct which provides that professional misconduct is that in when the lawyer engages in conduct that is prejudicial to the administration of justice. After this complaint, Plouffe filed an action against Ligon asking to enjoin the attorney disciplinary proceedings. Ligon moved to dismiss the complaint arguing the court should avoid hearing this matter under the Younger abstention doctrine; the district court agreed that the Younger abstention applied and dismissed the complaint. Plouffe appealed.
The Younger abstention doctrine provides that the federal courts should abstain from using jurisdiction when 1) there is an ongoing state proceeding, 2) which implicates important state interests, and 3) there is an adequate opportunity to raise any relevant federal questions in such a proceeding. In Plouffe’s appeal, he argued that two requirements for abstention are not met, requirement 2 and 3. Also, Plouffe argues that his statements made in the Chamberlain brief were protected under the First Amendment. The courts found that the presence of such requirements in question did exist thus affirming the judgment of the district court and dismissing Plouffe’s complaint.
Arizona Professional Negligence
Case: Webb v. Gittlen, 174 P. 3d 275 (Az. 2008)
Facts: In 2000, Neal and Gail Berliant purchased The Liquor Vault, a retail liquor store located in Scottsdale, Arizona. With the assistance of Victoria Gittlen, a licensed insurance agent, they purchased a business liability policy and a liability umbrella policy for their new business from Hartford Casualty Insurance Company (“Hartford”). The Berliants contend that Gittlen failed to inform them that they could also purchase separate liquor liability coverage.
Issue: In Webb v. Gittlen, the Arizona Supreme Court unanimously held that claims against insurance agents for professional negligence are assignable to third parties. The decision overturned Premium Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, in which the Arizona Court of Appeals held such assignments invalid as contrary to public policy.
Rule of law: Insured’s assigned to plaintiff assignee their rights to sue defendants, an insurance agent and an insurer. The assignee sued defendants, the agent, the insurer, and an insurance agency, alleging negligence and breach of fiduciary duty. A trial court dismissed the claims. The Court of Appeals Division One, Arizona, affirmed. The instant court granted review to consider whether insured’s could assign claims against their insurance agent.
Holding: The decision of the court of appeals and the judgment of the trial court were reversed. The case was remanded for further proceedings.
After Webb v. Gittlen, Arizona joins the majority of jurisdictions that permit assignment of professional negligence claims against insurance agents. The relationship between insurance agents and their clients is personal, but it is not uniquely personal like the relationship between attorneys and their clients. Absent this uniquely personal relationship, the Arizona Supreme Court found no compelling justifications for maintaining the non-assignability rule that prevailed in Arizona for more than five years.
http://scholar.google.com/scholar_case?case=8305606056891876773&hl=en&as_sdt=2&as_vis=1&oi=scholarr
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic
http://www.supreme.state.az.us/opin/pdf2008/cv070127pr.pdf
Facts: In 2000, Neal and Gail Berliant purchased The Liquor Vault, a retail liquor store located in Scottsdale, Arizona. With the assistance of Victoria Gittlen, a licensed insurance agent, they purchased a business liability policy and a liability umbrella policy for their new business from Hartford Casualty Insurance Company (“Hartford”). The Berliants contend that Gittlen failed to inform them that they could also purchase separate liquor liability coverage.
Issue: In Webb v. Gittlen, the Arizona Supreme Court unanimously held that claims against insurance agents for professional negligence are assignable to third parties. The decision overturned Premium Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, in which the Arizona Court of Appeals held such assignments invalid as contrary to public policy.
Rule of law: Insured’s assigned to plaintiff assignee their rights to sue defendants, an insurance agent and an insurer. The assignee sued defendants, the agent, the insurer, and an insurance agency, alleging negligence and breach of fiduciary duty. A trial court dismissed the claims. The Court of Appeals Division One, Arizona, affirmed. The instant court granted review to consider whether insured’s could assign claims against their insurance agent.
Holding: The decision of the court of appeals and the judgment of the trial court were reversed. The case was remanded for further proceedings.
After Webb v. Gittlen, Arizona joins the majority of jurisdictions that permit assignment of professional negligence claims against insurance agents. The relationship between insurance agents and their clients is personal, but it is not uniquely personal like the relationship between attorneys and their clients. Absent this uniquely personal relationship, the Arizona Supreme Court found no compelling justifications for maintaining the non-assignability rule that prevailed in Arizona for more than five years.
http://scholar.google.com/scholar_case?case=8305606056891876773&hl=en&as_sdt=2&as_vis=1&oi=scholarr
http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic
http://www.supreme.state.az.us/opin/pdf2008/cv070127pr.pdf
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