Link of Case: http://web2.westlaw.com/result/default.wl?tc=1&sv=Split&service=KeyCite&scxt=WL&tf=507&rlti=1&cxt=RL&n=1&mt=Westlaw&fn=_top&vr=2.0&rlt=CLID_FQRLT709516122711&rp=%2fKeyCite%2fdefault.wl&cite=133+P.3d+514&cnt=DOC&rs=WLW10.10&ss=CNT
In Wyoming State Bar v. Fulton, JoAnn Fulton, an attorney for the State of Wyoming was suspended from practicing Law according to the Wyoming State Bar Association. She was found to be in violation of various disciplinary codes of the Wyoming State Bar. She is appealing the decision to the Wyoming Supreme Court, claiming the order is inappropriate for the actions.
According to the complaint, the Wyoming State Bar claims the defendant violated Rule of Professional Conduct 1.5(a), when she included a paralegal time in the bill in regards to a contingency fee already charged to the client, in a percentage form. They also claimed Mrs. Fulton violated Rules 5(e) and Rule 6 of the Rules governing Contingency Fees when she failed to provide a client with the Rules, and the Representation Agreement did not comply with the rules. She violated Rule 6 when she fails to seek approval for the change in the documentation. The complaint states that the incident occurred on multiple occasions. Mrs. Fulton also violated Rule 1.1 when she filed a suit without merit, as well as informing clients that interest on settlement funds were not taxable if the she kept the funds.
The attorney, JoAnn Fulton was ordered to pay a fine to the State of Wyoming Bar Association for reimbursement for the costs associated with the case. She was also ordered that her license to practice law in the State of Wyoming be suspended for a time no less than 3 years, and that the actions be documented with the State Bar Association.
This case sets an example for all attorneys practicing law the importance of knowing the Rules of Conduct and abiding by the rules in order to appropriately do business in a legal way. It also shows the harsh punishment involved when attorneys fail to abide by the rules.
Tuesday, November 30, 2010
Wisconsin: Employer brings action against employees
http://www.wisspd.org/html/980case/casesum/AppealsPP.htm
In 779 N.W.2d 19 (Wis, 2010), the Court of Appeals of Wisconsin imposed a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. S.C. Johnson and Son claimed that his employees Buske invited bribes and kick-backs from transportation companies and, in exchange, submitted inflated invoices to employer on behalf of those transportation companies. A $203.8 million verdict in S.C. Johnson's favor was reached after substantial discovery, a four-week jury trial, and a series of motions brought before, during, and after the trial and verdict.
Wisconsin’s Court of Appeals affirmed that in issue of apparent first impression, representative of transportation company could not withdraw privilege against self-incrimination shortly before trial; in issue of apparent first impression, victim of intentional tort has no duty to mitigate damages unless it has actual knowledge of tort; corporation did not have actual knowledge of conspiracy; in issue of apparent first impression, double damages on whole award pursuant to Wisconsin Organized Crime Control Act (WOCCA) was proper; jury verdict was not perverse; jury verdict was not fatally defective; court acted within its discretion in admitting portions of redacted affidavits from reports of two federal law enforcement agents; and evidence that a nonparty transportation company hired friend of defendant was relevant.
The first issue concerns a party's continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party's theory of the case has been established. Second, this action alleged the intentional torts of fraud and misrepresentation. And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?
In 779 N.W.2d 19 (Wis, 2010), the Court of Appeals of Wisconsin imposed a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. S.C. Johnson and Son claimed that his employees Buske invited bribes and kick-backs from transportation companies and, in exchange, submitted inflated invoices to employer on behalf of those transportation companies. A $203.8 million verdict in S.C. Johnson's favor was reached after substantial discovery, a four-week jury trial, and a series of motions brought before, during, and after the trial and verdict.
Wisconsin’s Court of Appeals affirmed that in issue of apparent first impression, representative of transportation company could not withdraw privilege against self-incrimination shortly before trial; in issue of apparent first impression, victim of intentional tort has no duty to mitigate damages unless it has actual knowledge of tort; corporation did not have actual knowledge of conspiracy; in issue of apparent first impression, double damages on whole award pursuant to Wisconsin Organized Crime Control Act (WOCCA) was proper; jury verdict was not perverse; jury verdict was not fatally defective; court acted within its discretion in admitting portions of redacted affidavits from reports of two federal law enforcement agents; and evidence that a nonparty transportation company hired friend of defendant was relevant.
The first issue concerns a party's continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party's theory of the case has been established. Second, this action alleged the intentional torts of fraud and misrepresentation. And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?
West Virginia: Lawyer’s License Annulled for Misrepresentation of a Prisoner
Link for opinion: http://www.state.wv.us/wvsca/docs/Spring10/34257.pdf
In the case of G. Patrick Stanton, JR., 695 S.E.2d 901 (W.Va. 2010), the Supreme Court of West Virginia annuls the lawyer’s license for deceit, dishonesty and misrepresentations of himself to gain access to an incarcerated former client for inappropriate misconduct.
The Supreme Court sanctioned the Board’s recommendations of rule violations for conducting misrepresentation of himself as stated in W. Virginia RPC 8.4(c); acting detrimental to the administration of justice as stated in W. Virginia RPC 8.4(d); and engaging in sexual relations with a client as stated in W. Virginia RPC 8.4(g).
The lawyer claimed to officers that he was the representing counsel for Ms. Auvil while she was incarcerated. He dishonestly used the misrepresentation to gain access to Ms. Auvil so they could have sexual relations. Ms. Auvil was also receiving monetary remunerations in exchange for the sexual activities between the respondent and herself. The court held that the Respondent’s misconduct demonstrated his dishonesty, deceit and lack of judgment and also calls into the question of his “fitness as a member of the Bar”. See also In re Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) and In re Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
This case teaches the importance of honesty and proper representation under Rule 8.4(c) that states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Also stated in W.Va. Rules of Conduct 8.4(g), it is professional misconduct for a lawyer to “have sexual relations with a client whom the lawyer personally represents during the legal representation…”
In the case of G. Patrick Stanton, JR., 695 S.E.2d 901 (W.Va. 2010), the Supreme Court of West Virginia annuls the lawyer’s license for deceit, dishonesty and misrepresentations of himself to gain access to an incarcerated former client for inappropriate misconduct.
The Supreme Court sanctioned the Board’s recommendations of rule violations for conducting misrepresentation of himself as stated in W. Virginia RPC 8.4(c); acting detrimental to the administration of justice as stated in W. Virginia RPC 8.4(d); and engaging in sexual relations with a client as stated in W. Virginia RPC 8.4(g).
The lawyer claimed to officers that he was the representing counsel for Ms. Auvil while she was incarcerated. He dishonestly used the misrepresentation to gain access to Ms. Auvil so they could have sexual relations. Ms. Auvil was also receiving monetary remunerations in exchange for the sexual activities between the respondent and herself. The court held that the Respondent’s misconduct demonstrated his dishonesty, deceit and lack of judgment and also calls into the question of his “fitness as a member of the Bar”. See also In re Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) and In re Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
This case teaches the importance of honesty and proper representation under Rule 8.4(c) that states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Also stated in W.Va. Rules of Conduct 8.4(g), it is professional misconduct for a lawyer to “have sexual relations with a client whom the lawyer personally represents during the legal representation…”
Virginia: Attorney claims that because he was a suspended lawyer, the rules of professional conduct do not apply to him, and that his equal protection
Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), violations occurred in the course of prolonged litigation between an attorney, Barrett, and his former wife, in which the attorney represented himself. Barrett repeatedly asserted that, because his ex-wife was awarded sole legal and physical custody of the children, he was no longer responsible for the payment of any support for them under Va. Code § 20-108.2. The state supreme court held that the panel had jurisdiction to apply the rules professional conduct to the attorney in his suspended status. Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice had been suspended. Accordingly, his argument that applying the Rules to him violated the Equal Protection Clause was rejected. Because the attorney's argument that he was no longer required to support his children was completely frivolous, he was properly disbarred for violating Rule 3.1.
Barrett argued that "applying the Rules of Professional Conduct to him while exercising his fundamental and inalienable right to represent himself burdens him with additional strictures that do not bind any other litigant under the exact same circumstances, a burden that is forbidden by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution." Barrett argued further that "while the Equal Protection Clause does not forbid government classifications, it does keep government decision makers from treating differently persons who are in all relevant respects alike."
However, as the Panel noted in its order disbarring Barrett, an attorney representing himself is not alike in all aspects to a pro se non-lawyer litigant by virtue of the fact that the lawyer is a lawyer and is so by choice." Lawyers whose licenses to practice have been suspended are of a class unto themselves and they are subject to the Rules of Professional Conduct while non-lawyers who represent themselves are of an entirely different class and not subject to the Rules.
The important consideration was whether a lawyer whose license to practice had been suspended is treated like other lawyers whose licenses have been suspended. This Court noted in a previous case involving a claim that an act of the General Assembly violated the Equal Protection Clause that "an act is not invalid if within the sphere of its operation all persons subject to it are 'treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'" Bryce v. Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933).
Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice have been suspended. Accordingly, the court rejected his argument that applying the Rules to him violated the Equal Protection Clause.
The court held that for Barrett to assert persistently and repeatedly in the Circuit Court of Grayson County and in the Court of Appeals of Virginia that he was no longer required to support his children is completely frivolous, in light of the facts and the law of this case. Accordingly, the court affirmed the Panel's order revoking Barrett's license to practice law in his Commonwealth.
In Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), violations occurred in the course of prolonged litigation between an attorney, Barrett, and his former wife, in which the attorney represented himself. Barrett repeatedly asserted that, because his ex-wife was awarded sole legal and physical custody of the children, he was no longer responsible for the payment of any support for them under Va. Code § 20-108.2. The state supreme court held that the panel had jurisdiction to apply the rules professional conduct to the attorney in his suspended status. Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice had been suspended. Accordingly, his argument that applying the Rules to him violated the Equal Protection Clause was rejected. Because the attorney's argument that he was no longer required to support his children was completely frivolous, he was properly disbarred for violating Rule 3.1.
Barrett argued that "applying the Rules of Professional Conduct to him while exercising his fundamental and inalienable right to represent himself burdens him with additional strictures that do not bind any other litigant under the exact same circumstances, a burden that is forbidden by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution." Barrett argued further that "while the Equal Protection Clause does not forbid government classifications, it does keep government decision makers from treating differently persons who are in all relevant respects alike."
However, as the Panel noted in its order disbarring Barrett, an attorney representing himself is not alike in all aspects to a pro se non-lawyer litigant by virtue of the fact that the lawyer is a lawyer and is so by choice." Lawyers whose licenses to practice have been suspended are of a class unto themselves and they are subject to the Rules of Professional Conduct while non-lawyers who represent themselves are of an entirely different class and not subject to the Rules.
The important consideration was whether a lawyer whose license to practice had been suspended is treated like other lawyers whose licenses have been suspended. This Court noted in a previous case involving a claim that an act of the General Assembly violated the Equal Protection Clause that "an act is not invalid if within the sphere of its operation all persons subject to it are 'treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'" Bryce v. Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933).
Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice have been suspended. Accordingly, the court rejected his argument that applying the Rules to him violated the Equal Protection Clause.
The court held that for Barrett to assert persistently and repeatedly in the Circuit Court of Grayson County and in the Court of Appeals of Virginia that he was no longer required to support his children is completely frivolous, in light of the facts and the law of this case. Accordingly, the court affirmed the Panel's order revoking Barrett's license to practice law in his Commonwealth.
Vermont: Lawyers Reprimanded for Falsely Denying Recording Telephone Conversation
Link for opinion: http://scholar.google.com/scholar_case?case=1249575276007621696&q=989+A.2d+523&hl=en&as_sdt=100000002&as_ylo=2009
In In Re PRB Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, the Vermont Supreme Court privately reprimanded two attorneys for falsely denying to a witness that the telephone conversation was being recorded.
Respondent attorneys were partners in a law practice and represented a client in a criminal matter. A potential witness contacted the attorneys, claiming to have information showing the client’s innocence. The attorneys arranged an interview by telephone and to record the call. During the call, the potential witness asked the attorneys whether they were recording the conversation. One attorney said “No,” and the other attorney added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both attorneys.
The Vermont Supreme Court affirmed the hearing panel’s decision that the attorneys had violated Rule 4.1 which states "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person", but had not violated Rule 8.4(c) which establishes that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
In flatly denying to the witness that the call was being recorded, the attorney knowingly made a false statement. The other attorney then attempted to distract the witness from the issue with a statement about using a speaker phone. See V.R.Pr.C. 4.1 cmt. ("A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act."). See also Miss. Bar v. Att'y ST, 621 So.2d 229, 233 (Miss.1993).
Rule 8.4(c) is to be interpreted to reach only conduct that calls into question an attorney's fitness to practice law. Because the attorneys’ dishonesty does not reflect on their fitness to practice law, the Court affirms the decision of the hearing panel.
In In Re PRB Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, the Vermont Supreme Court privately reprimanded two attorneys for falsely denying to a witness that the telephone conversation was being recorded.
Respondent attorneys were partners in a law practice and represented a client in a criminal matter. A potential witness contacted the attorneys, claiming to have information showing the client’s innocence. The attorneys arranged an interview by telephone and to record the call. During the call, the potential witness asked the attorneys whether they were recording the conversation. One attorney said “No,” and the other attorney added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both attorneys.
The Vermont Supreme Court affirmed the hearing panel’s decision that the attorneys had violated Rule 4.1 which states "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person", but had not violated Rule 8.4(c) which establishes that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
In flatly denying to the witness that the call was being recorded, the attorney knowingly made a false statement. The other attorney then attempted to distract the witness from the issue with a statement about using a speaker phone. See V.R.Pr.C. 4.1 cmt. ("A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act."). See also Miss. Bar v. Att'y ST, 621 So.2d 229, 233 (Miss.1993).
Rule 8.4(c) is to be interpreted to reach only conduct that calls into question an attorney's fitness to practice law. Because the attorneys’ dishonesty does not reflect on their fitness to practice law, the Court affirms the decision of the hearing panel.
Utah: Attorney Breached Fiduciary Duties of Confidentiality and Loyalty
Link for opinion: http://www.utcourts.gov/opinions/supopin/USAPower051410.pdf
In USA Power, LLC v. PacifiCORP, 235 P.3d 749 (Utah 2010), the Utah Supreme Court reviewed a district court’s grant of summary judgment on three claims: misappropriation of trade secrets, breach of a confidentiality and nondisclosure agreement, and breach of an attorney's fiduciary duties of confidentiality and loyalty. The focus of this summary will be on the attorney’s breach of the fiduciary duties of confidentiality and loyalty.
The attorney was retained by USA Power in 2001 and later by PacifiCORP in 2003. USA Power argued that the attorney simultaneously represented them and defendant PacifiCORP, and disclosed confidential information to benefit PacifiCORP.
The Utah Supreme Court ruled that the district court erred when it granted summary judgment to an attorney and her law firm on USA Power’s breach of the fiduciary duty of confidentiality claim, and the lower court’s summary judgment was reversed and remanded because the district court “should have looked to whether USA Power presented evidence, either direct or circumstantial, that created a material issue” as to the attorney’s disclosure of confidential information.
The presentation of circumstantial evidence may create a real issue of material fact barring summary judgment. See Regan-Touhy v. Walgreen Co.,526 F.3d 641, 651 (10th Cir. 2008). The Utah Supreme Court held that genuine issues of material fact may be created by inferences drawn from circumstantial evidence because producing direct evidence that an attorney disclosed confidential information may be difficult for a plaintiff. Therefore, simultaneous adverse representation provides for an adequate inference of disclosure to create a genuine issue of material fact.
The Utah Supreme Court also ruled that the district court erred in granting summary judgment on the issue of the fiduciary duty of loyalty on the basis that a genuine issue of material fact caused harm to USA Power. Specifically, the attorney’s dual representation caused PacifiCORP to withdraw its interest in purchasing a power plant.
The court also concluded that PacifiCORP, a utility company, misappropriated trade secrets and breached a contract with USA Power, a power plant developer.
This case teaches the importance of the lawyer’s fiduciary duty. The elements of a claim against an attorney for breach of a fiduciary duty are " ‘(1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client.'" Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 23, 194 P.3d 931 (quoting Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct.App.1996)).
In USA Power, LLC v. PacifiCORP, 235 P.3d 749 (Utah 2010), the Utah Supreme Court reviewed a district court’s grant of summary judgment on three claims: misappropriation of trade secrets, breach of a confidentiality and nondisclosure agreement, and breach of an attorney's fiduciary duties of confidentiality and loyalty. The focus of this summary will be on the attorney’s breach of the fiduciary duties of confidentiality and loyalty.
The attorney was retained by USA Power in 2001 and later by PacifiCORP in 2003. USA Power argued that the attorney simultaneously represented them and defendant PacifiCORP, and disclosed confidential information to benefit PacifiCORP.
The Utah Supreme Court ruled that the district court erred when it granted summary judgment to an attorney and her law firm on USA Power’s breach of the fiduciary duty of confidentiality claim, and the lower court’s summary judgment was reversed and remanded because the district court “should have looked to whether USA Power presented evidence, either direct or circumstantial, that created a material issue” as to the attorney’s disclosure of confidential information.
The presentation of circumstantial evidence may create a real issue of material fact barring summary judgment. See Regan-Touhy v. Walgreen Co.,526 F.3d 641, 651 (10th Cir. 2008). The Utah Supreme Court held that genuine issues of material fact may be created by inferences drawn from circumstantial evidence because producing direct evidence that an attorney disclosed confidential information may be difficult for a plaintiff. Therefore, simultaneous adverse representation provides for an adequate inference of disclosure to create a genuine issue of material fact.
The Utah Supreme Court also ruled that the district court erred in granting summary judgment on the issue of the fiduciary duty of loyalty on the basis that a genuine issue of material fact caused harm to USA Power. Specifically, the attorney’s dual representation caused PacifiCORP to withdraw its interest in purchasing a power plant.
The court also concluded that PacifiCORP, a utility company, misappropriated trade secrets and breached a contract with USA Power, a power plant developer.
This case teaches the importance of the lawyer’s fiduciary duty. The elements of a claim against an attorney for breach of a fiduciary duty are " ‘(1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client.'" Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 23, 194 P.3d 931 (quoting Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct.App.1996)).
Lawyer disbarred after failing to pay back client
Link for opinion: http://www.supreme.courts.state.tx.us/ebriefs/files/20100608.htm
In Joan Myers v. Commission for lawyer discipline, the lawyer Joan Myers was disbarred and ordered to pay attorneys fees and direct expenses in the amount of $7,616.06, after she broke TDRPC 1.03(a), 1.14(a), and 1.14(b) in the Texas TDRPC.
Myers knowingly put a clients fund into her own bank account and did not leave it in a separate trust or escrow account. She also did not maintain any records of the money that she acquired from her client. Along with failure to hold the funds in a separate account she also neglected to notify the client when she received funds in which a client has an interest, failure to promptly deliver funds, and failure to render fill accounting upon request. Myers also failed to keep her client reasonably informed and failed to respond to requests for information.
This case teaches us the importance of updating our clients promptly and efficiently. We need to make sure that our clients have as much information on what is going on in their case as they need to. We also need to know the importance of keeping separate accounts when they are going to generate interests for the clients and to keep records of everything that has to do with the case. Making sure that a client is informed is quite possibly the most important thing within our legal system. Within the Texas rule 1.03(a), it states a “failure to keep a client reasonably informed and promptly comply with reasonable requests for information.” You have to keep your client up to speed on everything. With the other two Texas rules 1.14(a) and (b) you must keep your clients money in a separate account and maintain the records of that account.
In Joan Myers v. Commission for lawyer discipline, the lawyer Joan Myers was disbarred and ordered to pay attorneys fees and direct expenses in the amount of $7,616.06, after she broke TDRPC 1.03(a), 1.14(a), and 1.14(b) in the Texas TDRPC.
Myers knowingly put a clients fund into her own bank account and did not leave it in a separate trust or escrow account. She also did not maintain any records of the money that she acquired from her client. Along with failure to hold the funds in a separate account she also neglected to notify the client when she received funds in which a client has an interest, failure to promptly deliver funds, and failure to render fill accounting upon request. Myers also failed to keep her client reasonably informed and failed to respond to requests for information.
This case teaches us the importance of updating our clients promptly and efficiently. We need to make sure that our clients have as much information on what is going on in their case as they need to. We also need to know the importance of keeping separate accounts when they are going to generate interests for the clients and to keep records of everything that has to do with the case. Making sure that a client is informed is quite possibly the most important thing within our legal system. Within the Texas rule 1.03(a), it states a “failure to keep a client reasonably informed and promptly comply with reasonable requests for information.” You have to keep your client up to speed on everything. With the other two Texas rules 1.14(a) and (b) you must keep your clients money in a separate account and maintain the records of that account.
South Carolina: Employee found not to be employed by South Carolina Judicial Department.
Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In 387 S.C. 147 (S.C.2010), the South Carolina Supreme Court concluded that the employee was not employed by the South Carolina Judicial Department.
The South Carolina Supreme Court affirmed the trial court’s did not err in finding that SCJD was not the employee's employer. The suspension of the employee and a subsequent audit came about as the result of judicial disciplinary proceedings pursuant to S.C. Code Ann. § 14-11-15. Actions taken by SCJD in the course of such proceedings were not indicia of an employee/employer relationship. While court administration sent a letter to each county government calculating the master's salary using the statutory formula, S.C. Code Ann. § 14-11-30, that salary was determined by the formula, not by the SCJD. Neither S.C. Code Ann. § 14-1-90 nor S.C. Code Ann. § 14-27-70(1) imposed a duty on SCJD to supervise a master's bank accounts and/or audit books. S.C. Code Ann. § 4-9-150 (Supp. 2008) placed the auditing duty on the county. Even if the statutes created such a duty, the lenders did not show that their claims would not be precluded by the public duty rule. The trial court did not err in finding that SCJD did not owe the lenders a fiduciary duty to protect the funds held in the employee's foreclosure account. S.C. Code Ann. § 14-11-310(Supp. 2008) anticipated that the funds would be held by the master.
This case teaches the importance that the lenders are aware of who they are lending money to and the importance of keeping track of the accounts they lend to.
In 387 S.C. 147 (S.C.2010), the South Carolina Supreme Court concluded that the employee was not employed by the South Carolina Judicial Department.
The South Carolina Supreme Court affirmed the trial court’s did not err in finding that SCJD was not the employee's employer. The suspension of the employee and a subsequent audit came about as the result of judicial disciplinary proceedings pursuant to S.C. Code Ann. § 14-11-15. Actions taken by SCJD in the course of such proceedings were not indicia of an employee/employer relationship. While court administration sent a letter to each county government calculating the master's salary using the statutory formula, S.C. Code Ann. § 14-11-30, that salary was determined by the formula, not by the SCJD. Neither S.C. Code Ann. § 14-1-90 nor S.C. Code Ann. § 14-27-70(1) imposed a duty on SCJD to supervise a master's bank accounts and/or audit books. S.C. Code Ann. § 4-9-150 (Supp. 2008) placed the auditing duty on the county. Even if the statutes created such a duty, the lenders did not show that their claims would not be precluded by the public duty rule. The trial court did not err in finding that SCJD did not owe the lenders a fiduciary duty to protect the funds held in the employee's foreclosure account. S.C. Code Ann. § 14-11-310(Supp. 2008) anticipated that the funds would be held by the master.
This case teaches the importance that the lenders are aware of who they are lending money to and the importance of keeping track of the accounts they lend to.
Rhode Island Lawyer Suspended for Misappropriating Funds
Links for Opinion: http://www.courts.ri.gov/supreme/pdf-files/10-21order.pdf and http://www.caught.net/caught/butti.htm
In Re: Butti, 986 A.2d 251; 2010 R.I. LEXIS 10 (R.I. 2010), the Rhode Island Supreme Court suspended a lawyer indefinitely for misappropriating funds she took from settlements of personal injury cases. She was accused of receiving the funds and not paying the creditors from the settlement money. It was also discovered that she had not been authorized to practice law since March of 2008 because she failed to pay Supreme Court administrative fees. However, she continued to practice law. Several complaints were filed by clients and creditors.
The Rhode Island Supreme Court affirmed that Butti had misappropriated funds and engaged in the unauthorized practice of law. Butti knowingly took money from settlements and used the money for her own personal use. This is a violation of Rule 1.15 of the Rhode Island Disciplinary Rules of Professional Conduct. She also continued to practice law knowing that she was not authorized to do so according to Rule 5.5 of the Rhode Island Disciplinary Rules of Professional Conduct.
The Supreme Court upheld the appeal in favor of the Disciplinary Counsel. Butti was suspended from engaging in the practice of law “until further notice.” This case teaches the importance of honesty in the practice of law. Butti blatantly misappropriated funds and conducted dishonest practices. However, some attorneys would not be so bold. They might try to mask their dishonest practices with comingled money or other schemes. An attorney must prove their trustworthiness by keeping an accurate and detailed account of funds in their accounts. Therefore, if a question arises, they have the record keeping and statements to prove their honesty. Let us hope that Butti is not an example of the moral compass predominant in the field of law.
In Re: Butti, 986 A.2d 251; 2010 R.I. LEXIS 10 (R.I. 2010), the Rhode Island Supreme Court suspended a lawyer indefinitely for misappropriating funds she took from settlements of personal injury cases. She was accused of receiving the funds and not paying the creditors from the settlement money. It was also discovered that she had not been authorized to practice law since March of 2008 because she failed to pay Supreme Court administrative fees. However, she continued to practice law. Several complaints were filed by clients and creditors.
The Rhode Island Supreme Court affirmed that Butti had misappropriated funds and engaged in the unauthorized practice of law. Butti knowingly took money from settlements and used the money for her own personal use. This is a violation of Rule 1.15 of the Rhode Island Disciplinary Rules of Professional Conduct. She also continued to practice law knowing that she was not authorized to do so according to Rule 5.5 of the Rhode Island Disciplinary Rules of Professional Conduct.
The Supreme Court upheld the appeal in favor of the Disciplinary Counsel. Butti was suspended from engaging in the practice of law “until further notice.” This case teaches the importance of honesty in the practice of law. Butti blatantly misappropriated funds and conducted dishonest practices. However, some attorneys would not be so bold. They might try to mask their dishonest practices with comingled money or other schemes. An attorney must prove their trustworthiness by keeping an accurate and detailed account of funds in their accounts. Therefore, if a question arises, they have the record keeping and statements to prove their honesty. Let us hope that Butti is not an example of the moral compass predominant in the field of law.
Ohio Lawyer’s license to practice suspended for an undetermined amount of time.
Link for Opinion:
www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=jcff&searchTerm=eYca.jQca.UYGW.Zdbe&searchFlag=y&l1loc=FCLOW
In 122 Ohio St. 3d 583; 2009 Ohio 4091; 913 N.E. 2d 443, the Ohio Supreme Court accepted the Board of Commissioners on Grievances and Disciplines findings that the respondent, Aaron Ridenbaugh “ engaged in professional misconduct” and furthered the recommendation of indefinitely suspending the respondent. The Supreme Court also amended the decision by granting the respondent credit for the time that he has already endured with a suspended license.
The Ohio Supreme Court affirmed the lower court’s finding that the respondent, Aaron Ridenbaugh, willfully and knowingly engaged in acts of voyeurism and use of child pornography that is a violation of Ohio Revised Codes 2933.32(A)(1); R.C. 2907.08(A); R.C. 2907.322(A)(5); R.C. 2907.323(A)(3). Also, the Ohio Supreme Court affirms the findings that the respondent violated Disciplinary Rules 1-102(A)(3) and DR 1-102(A)(6) and Prof. Cond. R.’s 8.4(b) and 8.4(h).
The respondent, Aaron Ridenbaugh, successfully petitioned the court to allow him credit for time served with a suspended license towards his indefinite suspension. On his appeals to the length of time of said suspension, the Court considered, “the duties violated, the actual or potential injury caused, the attorney’s mental state, the existence of any aggravating or mitigating circumstances, and sanctions imposed in similar cases” (see Stark Cty. Bar Assn. v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704 855 N.E. 2d 1206, P 44), “We then weigh the aggravating and mitigating factors to decide whether the circumstances warrant a more lenient or harsh disposition.” Because of the nature of the violation, the Court was compelled to uphold the sanction of an indeterminately long suspension in order to the public, deter other lawyers from committing similar acts, and to help restore and preserve the public’s trust in the legal profession. Despite testimony by the respondent’s doctor, Stephen B. Levine M.D., verifying the existence of mitigating mental deficiencies the respondent suffers from, he could not satisfy the criteria of the final and most important element in BCGD Proc. Ref. 10(b)(2)(g) test—“that the respondent is currently capable of returning to the competent, ethical, and professional practice of law.” Thus, the aggravating factors of respondent’s offenses far outweighed the mitigating factors and the Ohio Supreme Court holds that he will be indefinitely suspended from practicing law in the state and that he must meet certain criteria before he can petition for reinstatement in the future.
What I took away from this case is two-fold. First, the rules of professional conduct take very seriously the personal indiscretions and felonious violations of legal professionals, especially as pertaining to children. See DR-1-102(A)(3); Prof. Cond. R. 8.4(b); DR 1-102(A)(6); Prof. Cond. R 6.4(h). Second, the Court believes in the process of professional rehabilitation and restoration of (some) fallen lawyers and legal professionals as is seen in the Board of Commissioners on Grievances and Discipline (BCGD) Procedural Regulation 10(B)(2)(g)(i) thru (iv) outlining the elements that a mental disability must satisfy to qualify as a mitigating factor.
www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=jcff&searchTerm=eYca.jQca.UYGW.Zdbe&searchFlag=y&l1loc=FCLOW
In 122 Ohio St. 3d 583; 2009 Ohio 4091; 913 N.E. 2d 443, the Ohio Supreme Court accepted the Board of Commissioners on Grievances and Disciplines findings that the respondent, Aaron Ridenbaugh “ engaged in professional misconduct” and furthered the recommendation of indefinitely suspending the respondent. The Supreme Court also amended the decision by granting the respondent credit for the time that he has already endured with a suspended license.
The Ohio Supreme Court affirmed the lower court’s finding that the respondent, Aaron Ridenbaugh, willfully and knowingly engaged in acts of voyeurism and use of child pornography that is a violation of Ohio Revised Codes 2933.32(A)(1); R.C. 2907.08(A); R.C. 2907.322(A)(5); R.C. 2907.323(A)(3). Also, the Ohio Supreme Court affirms the findings that the respondent violated Disciplinary Rules 1-102(A)(3) and DR 1-102(A)(6) and Prof. Cond. R.’s 8.4(b) and 8.4(h).
The respondent, Aaron Ridenbaugh, successfully petitioned the court to allow him credit for time served with a suspended license towards his indefinite suspension. On his appeals to the length of time of said suspension, the Court considered, “the duties violated, the actual or potential injury caused, the attorney’s mental state, the existence of any aggravating or mitigating circumstances, and sanctions imposed in similar cases” (see Stark Cty. Bar Assn. v. Ake, 111 Ohio St.3d 266, 2006 Ohio 5704 855 N.E. 2d 1206, P 44), “We then weigh the aggravating and mitigating factors to decide whether the circumstances warrant a more lenient or harsh disposition.” Because of the nature of the violation, the Court was compelled to uphold the sanction of an indeterminately long suspension in order to the public, deter other lawyers from committing similar acts, and to help restore and preserve the public’s trust in the legal profession. Despite testimony by the respondent’s doctor, Stephen B. Levine M.D., verifying the existence of mitigating mental deficiencies the respondent suffers from, he could not satisfy the criteria of the final and most important element in BCGD Proc. Ref. 10(b)(2)(g) test—“that the respondent is currently capable of returning to the competent, ethical, and professional practice of law.” Thus, the aggravating factors of respondent’s offenses far outweighed the mitigating factors and the Ohio Supreme Court holds that he will be indefinitely suspended from practicing law in the state and that he must meet certain criteria before he can petition for reinstatement in the future.
What I took away from this case is two-fold. First, the rules of professional conduct take very seriously the personal indiscretions and felonious violations of legal professionals, especially as pertaining to children. See DR-1-102(A)(3); Prof. Cond. R. 8.4(b); DR 1-102(A)(6); Prof. Cond. R 6.4(h). Second, the Court believes in the process of professional rehabilitation and restoration of (some) fallen lawyers and legal professionals as is seen in the Board of Commissioners on Grievances and Discipline (BCGD) Procedural Regulation 10(B)(2)(g)(i) thru (iv) outlining the elements that a mental disability must satisfy to qualify as a mitigating factor.
North Dakota: Are all the elements met for legal malpractice.
http://scholar.google.com/scholar_case?case=9620731827234844004&q=%22legal+malpractice%22%2B%22north+dakota%22&hl=en&as_sdt=100000002&as_ylo=2006
In Davis v. Enget 779 N.W.2d 126 (2010) 2010 ND 34 Davis asserted a claim of legal malpractice against the attorney’s he hired. The real issue, were all the elements of legal malpractice being met? The issue is also, whether the summary judgment was appropriately granted as to there being a breach of duty by the attorney and damages to the client proximately caused by the breach. Had Davis met the burden of proving the absence of a genuine issue of material fact. Davis cannot use mere allegations but had to present competent admissible evidence by affidavit or other comparable means to show existence of a genuine issue of material fact.
Enget did have a duty to Davis because he was represented by them in a case. Davis asserts the Enget failed to present expert testimony and that breach is his proof of genuine issue of material facts. Davis also claims that Enget and Slorby were negligent by representing him in a field of law they were ill-prepared, inadequately prepared for court, and did not secure relevant medical evidence and failing to notify him of the status of this case. Davis rejected Enget’s motion for a summary judgment with only his affidavit lacking admissible evidence or other competent evidence.
His lay opinion of their actions is not enough to support his claims alone because the actions of Enget and Slorby were not egregious or obvious that a layperson could perceive them. Davis did not present an affidavit or expert testimony to show that the firm’s duty was, completely lacking and the courts affirmed the district court’s judgment dismissing Davis’s legal malpractice action.
In Davis v. Enget 779 N.W.2d 126 (2010) 2010 ND 34 Davis asserted a claim of legal malpractice against the attorney’s he hired. The real issue, were all the elements of legal malpractice being met? The issue is also, whether the summary judgment was appropriately granted as to there being a breach of duty by the attorney and damages to the client proximately caused by the breach. Had Davis met the burden of proving the absence of a genuine issue of material fact. Davis cannot use mere allegations but had to present competent admissible evidence by affidavit or other comparable means to show existence of a genuine issue of material fact.
Enget did have a duty to Davis because he was represented by them in a case. Davis asserts the Enget failed to present expert testimony and that breach is his proof of genuine issue of material facts. Davis also claims that Enget and Slorby were negligent by representing him in a field of law they were ill-prepared, inadequately prepared for court, and did not secure relevant medical evidence and failing to notify him of the status of this case. Davis rejected Enget’s motion for a summary judgment with only his affidavit lacking admissible evidence or other competent evidence.
His lay opinion of their actions is not enough to support his claims alone because the actions of Enget and Slorby were not egregious or obvious that a layperson could perceive them. Davis did not present an affidavit or expert testimony to show that the firm’s duty was, completely lacking and the courts affirmed the district court’s judgment dismissing Davis’s legal malpractice action.
North Carolina: Attorney Sanctioned for Filing Motions
Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In In re Small, 689 S.E.2d 482, (2009 N.C.), the Cabarrus County Superior Court ordered Attorney, Benjamin Small to pay $500 fine as sanction for filing motions that were in violation of court rules, found to be vexatious and without merit and were filed for improper purpose of harassing the district attorney. Small argued he was deprived of due process rights when he wasn’t provided with adequate advance notice that sanctions could be imposed.
The State's Response to Motion to Recuse alleged that "defense counsel is merely being vindictive by filing this frivolous Motion since this will not agree to the counteroffer and defense counsel is therefore acting unprofessionally, unethically and not in the best interest of his client." The State also alleged that "defense counsel has become too personally involved in this case to the extent that all reasonableness and professionalism has been skewed."
After alleging that Small had violated Rules 3.3(a)(1), 4.1(1), and 8.4 of the Rules of Professional Conduct, the State requested, among other things, that: (1) "defense counsel be removed from the court-appointed list until such time as this Court finds that defense counsel can conduct himself in a professional, objective and rationale manner in representing his clients" and (2) "defense counsel be sanctioned for blatant violations of [Rules of Professional Conduct] 3.3(1), 4.1(1) and 8.4."
Court conclude that Small had notice that sanctions may be imposed for filing defendant's Motions to Recuse and Continue, had notice of the grounds upon which those sanctions were imposed against him, and had an opportunity to address those grounds throughout the entire hearing on defendant's motions.
In In re Small, 689 S.E.2d 482, (2009 N.C.), the Cabarrus County Superior Court ordered Attorney, Benjamin Small to pay $500 fine as sanction for filing motions that were in violation of court rules, found to be vexatious and without merit and were filed for improper purpose of harassing the district attorney. Small argued he was deprived of due process rights when he wasn’t provided with adequate advance notice that sanctions could be imposed.
The State's Response to Motion to Recuse alleged that "defense counsel is merely being vindictive by filing this frivolous Motion since this will not agree to the counteroffer and defense counsel is therefore acting unprofessionally, unethically and not in the best interest of his client." The State also alleged that "defense counsel has become too personally involved in this case to the extent that all reasonableness and professionalism has been skewed."
After alleging that Small had violated Rules 3.3(a)(1), 4.1(1), and 8.4 of the Rules of Professional Conduct, the State requested, among other things, that: (1) "defense counsel be removed from the court-appointed list until such time as this Court finds that defense counsel can conduct himself in a professional, objective and rationale manner in representing his clients" and (2) "defense counsel be sanctioned for blatant violations of [Rules of Professional Conduct] 3.3(1), 4.1(1) and 8.4."
Court conclude that Small had notice that sanctions may be imposed for filing defendant's Motions to Recuse and Continue, had notice of the grounds upon which those sanctions were imposed against him, and had an opportunity to address those grounds throughout the entire hearing on defendant's motions.
New York: Attorney Sued for Real Estate Malpractice
Link for opinion: http://www.courts.state.ny.us/ctapps/decisions/2010/jun10/104opn10.pdf
Victor Finmann represented the decedent from April 2000 till his death in 2006. His life insurance policy at the time of his death was considered a part of his gross estate, making the policy taxable. His survivors sued the respondent for negligence in failing to advise the decedent to transfer the policy. Because of an absence of privity, the complaint was originally dismissed, and the decision was later upheld by the New York Court of Appeals.
Victor Finmann represented the decedent from April 2000 till his death in 2006. His life insurance policy at the time of his death was considered a part of his gross estate, making the policy taxable. His survivors sued the respondent for negligence in failing to advise the decedent to transfer the policy. Because of an absence of privity, the complaint was originally dismissed, and the decision was later upheld by the New York Court of Appeals.
Computer Once, Inc. and Caroline C. Roberts V. Grisham & Lawless, P.A., professional association, Thomas L. Grisham, and Stephen F. Lawless.
http://caselaw.findlaw.com/nm-supreme-court/1116280.html
Facts: Defendants represented Computer One in a breach of contract against Sandia Corporation. Defendants entered into settlement with Sandia Corporations and agreed to settle Computer One’s $750,000 claims. After this settlement was made, Computer One stated that the Defendants did not have the authority to do so. Defendants then filed an attorney lien. Sandia Corporation filed a motion to enforce the settlement and Computer One objected, stating that again the Defendants had no authority to enter into the settlement. After the district court found that Computer One had given Defendants the authority to settle for $750,000, the Defendants got the settlement. Following the attorney lien charge, the district court held a hearing and the parties discussed claims between Defendants and another creditor of the settlement. Computer One then state they had the intendancy to dispute the enforceability of the Defendants’ claims for the fees and Computer One requested a hearing on the issue of the attorneys fees and stated it would be filing objections to the charging lien. Computer One was given ten days to files its objections. Computer One stated that the attorney feed that the Defendants wanted were excessive and unreasonable because Defendants: (1) negotiated the settlement without consent; (2) released potential claims of both Computer One and Roberts without authority and to their economic detriment; and (3) failed to pursue a malpractice claim valued at 1.5 million dollars against predecessor counsel and failed to negotiate an attorney charging lien filed by predecessor counsel. Computer One also claimed that (4) the amended charging lien included fees for services not related to representation of Computer One in the action; and (5) the contingency fee agreement on which the charging lien was based did not conform to Rule 16-105(C) NMRA, and was therefore unenforceable. Computer One repeated these statements to Sandia Corporation’s motion, as well and the court held a hearing on Sandia Corporation’s motion to disburse fees and on Defendants’ attorney charging lien. Over a year later, Computer One sued Defendants for legal malpractice. Computer One claimed that Defendants’ recommendation to accept settlement for $750,000 constituted legal professional negligence. Computer One claimed that Defendants failed to properly assess the damages available for breach of contract in the Sandia case. Defendants requested for summary judgment arguing that Computer One’s legal malpractice claims were barred by claim preclusion. The district court stated the Computer One had raised legal malpractice claims in the litigation concerning the attorney charging lien and had been unsuccessful. The district court also found that computer One had the opportunity to litigate the issue of whether there had been an improper handling of the litigation by Defendants and was attempting to telitigate the issue by raising different legal theories.
Issue: Did Grisham & Lawless Law firms commit legal malpractice to Computer One?
Rule of Law: Anaya v. City of Albuquerques argues that Claim preclusion rests on the need to balance the interests of defendants and the courts, on the one hand, to bring a close to litigation, and of plaintiffs, on the other hand, to seek relief of their claims. Moffat, 2005-NMCA-103 states that for claim preclusion to apply, four requirements must exist. "The two actions (1) must involve the same parties or their privies, (2) who are acting in the same capacity or character, (3) regarding the same subject matter, and (4) must involve the same claim."
Holding: The district court correctly determined that claim preclusion barred Computer One’s claims for legal malpractice.
Facts: Defendants represented Computer One in a breach of contract against Sandia Corporation. Defendants entered into settlement with Sandia Corporations and agreed to settle Computer One’s $750,000 claims. After this settlement was made, Computer One stated that the Defendants did not have the authority to do so. Defendants then filed an attorney lien. Sandia Corporation filed a motion to enforce the settlement and Computer One objected, stating that again the Defendants had no authority to enter into the settlement. After the district court found that Computer One had given Defendants the authority to settle for $750,000, the Defendants got the settlement. Following the attorney lien charge, the district court held a hearing and the parties discussed claims between Defendants and another creditor of the settlement. Computer One then state they had the intendancy to dispute the enforceability of the Defendants’ claims for the fees and Computer One requested a hearing on the issue of the attorneys fees and stated it would be filing objections to the charging lien. Computer One was given ten days to files its objections. Computer One stated that the attorney feed that the Defendants wanted were excessive and unreasonable because Defendants: (1) negotiated the settlement without consent; (2) released potential claims of both Computer One and Roberts without authority and to their economic detriment; and (3) failed to pursue a malpractice claim valued at 1.5 million dollars against predecessor counsel and failed to negotiate an attorney charging lien filed by predecessor counsel. Computer One also claimed that (4) the amended charging lien included fees for services not related to representation of Computer One in the action; and (5) the contingency fee agreement on which the charging lien was based did not conform to Rule 16-105(C) NMRA, and was therefore unenforceable. Computer One repeated these statements to Sandia Corporation’s motion, as well and the court held a hearing on Sandia Corporation’s motion to disburse fees and on Defendants’ attorney charging lien. Over a year later, Computer One sued Defendants for legal malpractice. Computer One claimed that Defendants’ recommendation to accept settlement for $750,000 constituted legal professional negligence. Computer One claimed that Defendants failed to properly assess the damages available for breach of contract in the Sandia case. Defendants requested for summary judgment arguing that Computer One’s legal malpractice claims were barred by claim preclusion. The district court stated the Computer One had raised legal malpractice claims in the litigation concerning the attorney charging lien and had been unsuccessful. The district court also found that computer One had the opportunity to litigate the issue of whether there had been an improper handling of the litigation by Defendants and was attempting to telitigate the issue by raising different legal theories.
Issue: Did Grisham & Lawless Law firms commit legal malpractice to Computer One?
Rule of Law: Anaya v. City of Albuquerques argues that Claim preclusion rests on the need to balance the interests of defendants and the courts, on the one hand, to bring a close to litigation, and of plaintiffs, on the other hand, to seek relief of their claims. Moffat, 2005-NMCA-103 states that for claim preclusion to apply, four requirements must exist. "The two actions (1) must involve the same parties or their privies, (2) who are acting in the same capacity or character, (3) regarding the same subject matter, and (4) must involve the same claim."
Holding: The district court correctly determined that claim preclusion barred Computer One’s claims for legal malpractice.
New Jersey: Concurrent Conflict of Interest Not Enough to Disqualify Law Firm
Wyeth v. Abbott Laboratories, 692 F.Supp.2d 453 (D.N.J. 2010). Found on www.legalmalpracticelawreview.com website.
Facts: U.S. District Judge Joel Pisano reversed a magistrate judge's decision disqualifying international law firm Howrey, LLP from representing Boston Scientific Scimed, Inc. (“BSC”) in an underlying patent infringement action. Wyeth alleged a conflict of interest existed in this representation against Wyeth as Howrey was simultaneously representing Wyeth in a patent matter in Europe. Wyeth contended that Howrey’s conduct was in violation of RPC 1.7(a)(1). The lower court interpreted applicable case law as requiring mandatory disqualification for a violation of RPC 1.7. Howrey appealed.
Issue: Can a law firm represent an adversary to a current client in an unrelated matter?
Rule of Law: RPC 1.7(a)(1) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure).
Holding: The Court determined that since there was a client-attorney relationship, Howrey was in violation of RPC 1.7. The Court found that disqualification is never automatic citing U.S. v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980). The facts of any particular case necessarily determine whether disqualification is warranted. The Court set 12 factors to consider in determining whether or not disqualification is needed: 1) prejudice to plaintiff; 2) prejudice to third party client; 3) whether representation of the plaintiff would allow third party client access to any confidential information; 4) the cost in terms of both time and money for the third party client to retain new counsel; 5) the complexity of the issues in the case and the time needed to take new counsel to acquaint themselves with the facts and issues; 6) which party, if either, was responsible for creating the conflict; 7) whether the two matters at issue are related in substance; 8) whether both matters are presently active; 9) whether any attorneys from the firm have been involved in both matters; 10) whether the matters are each being handled from offices in different geographic locations; 11) whether the attorneys from the law firm work with different client representative(s) for each matter; and 12) the relative time billed by the law firm to each matter.
The Court found no evidence that Howrey’s independent professional judgment would be impaired if permitted to continue as counsel for BSC, since the matters were completely unrelated and Howrey had put up an “ethical wall” with regard to the attorneys working on the matters, as well as the confidential information with regard to each matter. The Court determined that depriving BSC of Howrey’s depth of experience and expertise in the complex technologies at issue and the delay in litigation needed to obtain new counsel would be too great a hardship for them. Wyeth did not identify any prejudice that it would suffer if Howrey was not disqualified. As a result, the Court allowed Howrey to continue as counsel for BSC in the underlying patent litigation.
Facts: U.S. District Judge Joel Pisano reversed a magistrate judge's decision disqualifying international law firm Howrey, LLP from representing Boston Scientific Scimed, Inc. (“BSC”) in an underlying patent infringement action. Wyeth alleged a conflict of interest existed in this representation against Wyeth as Howrey was simultaneously representing Wyeth in a patent matter in Europe. Wyeth contended that Howrey’s conduct was in violation of RPC 1.7(a)(1). The lower court interpreted applicable case law as requiring mandatory disqualification for a violation of RPC 1.7. Howrey appealed.
Issue: Can a law firm represent an adversary to a current client in an unrelated matter?
Rule of Law: RPC 1.7(a)(1) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure).
Holding: The Court determined that since there was a client-attorney relationship, Howrey was in violation of RPC 1.7. The Court found that disqualification is never automatic citing U.S. v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980). The facts of any particular case necessarily determine whether disqualification is warranted. The Court set 12 factors to consider in determining whether or not disqualification is needed: 1) prejudice to plaintiff; 2) prejudice to third party client; 3) whether representation of the plaintiff would allow third party client access to any confidential information; 4) the cost in terms of both time and money for the third party client to retain new counsel; 5) the complexity of the issues in the case and the time needed to take new counsel to acquaint themselves with the facts and issues; 6) which party, if either, was responsible for creating the conflict; 7) whether the two matters at issue are related in substance; 8) whether both matters are presently active; 9) whether any attorneys from the firm have been involved in both matters; 10) whether the matters are each being handled from offices in different geographic locations; 11) whether the attorneys from the law firm work with different client representative(s) for each matter; and 12) the relative time billed by the law firm to each matter.
The Court found no evidence that Howrey’s independent professional judgment would be impaired if permitted to continue as counsel for BSC, since the matters were completely unrelated and Howrey had put up an “ethical wall” with regard to the attorneys working on the matters, as well as the confidential information with regard to each matter. The Court determined that depriving BSC of Howrey’s depth of experience and expertise in the complex technologies at issue and the delay in litigation needed to obtain new counsel would be too great a hardship for them. Wyeth did not identify any prejudice that it would suffer if Howrey was not disqualified. As a result, the Court allowed Howrey to continue as counsel for BSC in the underlying patent litigation.
Nevada: Client Sues Individual Lawyer and Firm
Link for opinion: http://www.nevadajudiciary.us/index.php/advancedopinions/877-elyousef-v-oreilly-a-ferrario-llc-
In Elyousef v. O’Reilly & Ferrario, Elyousef entered into a business arrangement with Homayouni, an employee of O'Reilly. Eventually the business and the relationship soured and Homayouni sued Elyousef. Elyousef brought a countersuit and won the case, settling for $50,000 plus the return of his interest in the Nevada Oil and Land Development.
After this case ended, Elyousef sued O'Reilly for negligence and legal malpractice. The disctrict court judged in O'Reillys favor in this case.
Elyousef appealed, stating that he deserved further recovery. The Court held that suing O'Reilly a second time was in violation of the doctrines of double recovery and issue preclusion. The double recovery doctrine states that there can only be one recovery of damages for one wrong or injury. Because Elyousef already was fully recovered through the initial settlement, he was not able to recover a second time.
In Elyousef v. O’Reilly & Ferrario, Elyousef entered into a business arrangement with Homayouni, an employee of O'Reilly. Eventually the business and the relationship soured and Homayouni sued Elyousef. Elyousef brought a countersuit and won the case, settling for $50,000 plus the return of his interest in the Nevada Oil and Land Development.
After this case ended, Elyousef sued O'Reilly for negligence and legal malpractice. The disctrict court judged in O'Reillys favor in this case.
Elyousef appealed, stating that he deserved further recovery. The Court held that suing O'Reilly a second time was in violation of the doctrines of double recovery and issue preclusion. The double recovery doctrine states that there can only be one recovery of damages for one wrong or injury. Because Elyousef already was fully recovered through the initial settlement, he was not able to recover a second time.
Missouri lawyer, James T. Madison, suspended for multiple violations of the Rules of Professional Conduct.
http://caselaw.findlaw.com/mo-supreme-court/1127624.html
The issues involved in this disciplinary action are;
1. Mr. Madison’s conduct went beyond the standards in that he made reckless statements regarding the qualifications and integrity of a judge.
2. Resisted a judge’s ruling beyond that necessary to preserve a claim for appeal.
3. Disrupted the court and acted in a manner prejudicial to the administration of justice.
Also that Mr. Madison claimed his speech and conduct was not protected as a matter of law, but because it was true and was justified.
The DHP (disciplinary hearing panel) of the OCDC recommended that Mr. Madison be suspended from the practice of law with no leave to apply for reinstatement for 12 months and that his reinstatement be conditioned on his agreement to undergo a psychological evaluation and complete anger management or other programs or therapies recommended as part of that evaluation. Mr. Madison appealed this ruling.
This case was referred to the Missouri Supreme Court on May 5, 2009. The DHP found that Mr. Madison’s conduct violated the following rules; Rule 4-3.5(d), Rule 4-8.2(a) and Rule 4-8.4(d). Rule 4-3.5(d) states “a lawyer shall not …engage in conduct intended to disrupt a tribunal”. Rule 4-8.2 (a) states “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsify concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office”. Rule 4-8.4 (d) states “it is professional misconduct for a lawyer to;…engage in conduct that is prejudicial to the administration of justice”.
In the first issue Mr. Madison represented a plaintiff in a personal injury case filed in September, 2002. The judge that was assigned the case, because of a family situation, had to continue the case at another time. Because the judge’s staff did not give the reason behind the continuance to Mr. Madison, he responded with several letters to the judge, two of which were sent after she recused herself from hearing the case. The wording in these letters is what is at issue in the first violation. Mr. Madison made statements in these letters accusing the judge of racism, drunk with power, doubts concerning fitness to preside, appearance of impropriety, an “evil” network, and that people would know her and the 16th Circuit court for an act of infamy.
The second and third issues occurred on March 16, 2005 while Mr. Madison was in court representing a landlord seeking back rent and possession of an apartment. Mr. Madison did not bring a witness for the landlord, but the tenant showed up. The judge told Mr. Madison and the tenant to leave the court room and go into the hall and try to settle the matter. When the judge resumed the case, he made it clear to Mr. Madison that he would need a witness to make his case because of the tenant’s denial of the debt, he also offered future dates to hear the case. Mr. Madison did not accept the judge’s dates, and insisted on completing the trial that day. After personally questioning the tenant, the judge made a ruling excusing all the rent except the last month. He did not allow Mr. Madison a chance at cross-examination. At this point Mr. Madison started arguing with the judge. Witnesses claimed Mr. Madison’s behavior as disruptive and disrespectful and his attitude arrogant. Mr. Madison sent a letter to the judge. He accused the judge of misconduct and unethical behavior, but did not file a complaint with the commission or appeal the judge’s decision in his case.
In the Supreme Court opinion they cited Belz, 258 S.W.3d at 39 and Crews, 159 S.W.3d at 360-61 for providing guidance in regard to the appropriate discipline for the violations committed by Mr. Madison. They upheld the verdict of the DPH, finding Mr. Madison in violation of the Rules of Professional Conduct. Because of Mr. Madison’s conduct during the investigation and interviews of the panel conducted by the Supreme Court, they found that a reprimand was insufficient. The Supreme Court suspended Mr. Madison indefinitely with no leave to reapply for six months. Reinstatement was conditional on meeting the requirements set out in the court’s ruling. Mr. Madison was required to show he had undergone a psychological evaluation and completed anger management or other programs or therapies recommended as a part of that evaluation, and that he also attended the ethics school conducted by OCDC.
The issues involved in this disciplinary action are;
1. Mr. Madison’s conduct went beyond the standards in that he made reckless statements regarding the qualifications and integrity of a judge.
2. Resisted a judge’s ruling beyond that necessary to preserve a claim for appeal.
3. Disrupted the court and acted in a manner prejudicial to the administration of justice.
Also that Mr. Madison claimed his speech and conduct was not protected as a matter of law, but because it was true and was justified.
The DHP (disciplinary hearing panel) of the OCDC recommended that Mr. Madison be suspended from the practice of law with no leave to apply for reinstatement for 12 months and that his reinstatement be conditioned on his agreement to undergo a psychological evaluation and complete anger management or other programs or therapies recommended as part of that evaluation. Mr. Madison appealed this ruling.
This case was referred to the Missouri Supreme Court on May 5, 2009. The DHP found that Mr. Madison’s conduct violated the following rules; Rule 4-3.5(d), Rule 4-8.2(a) and Rule 4-8.4(d). Rule 4-3.5(d) states “a lawyer shall not …engage in conduct intended to disrupt a tribunal”. Rule 4-8.2 (a) states “a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsify concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office”. Rule 4-8.4 (d) states “it is professional misconduct for a lawyer to;…engage in conduct that is prejudicial to the administration of justice”.
In the first issue Mr. Madison represented a plaintiff in a personal injury case filed in September, 2002. The judge that was assigned the case, because of a family situation, had to continue the case at another time. Because the judge’s staff did not give the reason behind the continuance to Mr. Madison, he responded with several letters to the judge, two of which were sent after she recused herself from hearing the case. The wording in these letters is what is at issue in the first violation. Mr. Madison made statements in these letters accusing the judge of racism, drunk with power, doubts concerning fitness to preside, appearance of impropriety, an “evil” network, and that people would know her and the 16th Circuit court for an act of infamy.
The second and third issues occurred on March 16, 2005 while Mr. Madison was in court representing a landlord seeking back rent and possession of an apartment. Mr. Madison did not bring a witness for the landlord, but the tenant showed up. The judge told Mr. Madison and the tenant to leave the court room and go into the hall and try to settle the matter. When the judge resumed the case, he made it clear to Mr. Madison that he would need a witness to make his case because of the tenant’s denial of the debt, he also offered future dates to hear the case. Mr. Madison did not accept the judge’s dates, and insisted on completing the trial that day. After personally questioning the tenant, the judge made a ruling excusing all the rent except the last month. He did not allow Mr. Madison a chance at cross-examination. At this point Mr. Madison started arguing with the judge. Witnesses claimed Mr. Madison’s behavior as disruptive and disrespectful and his attitude arrogant. Mr. Madison sent a letter to the judge. He accused the judge of misconduct and unethical behavior, but did not file a complaint with the commission or appeal the judge’s decision in his case.
In the Supreme Court opinion they cited Belz, 258 S.W.3d at 39 and Crews, 159 S.W.3d at 360-61 for providing guidance in regard to the appropriate discipline for the violations committed by Mr. Madison. They upheld the verdict of the DPH, finding Mr. Madison in violation of the Rules of Professional Conduct. Because of Mr. Madison’s conduct during the investigation and interviews of the panel conducted by the Supreme Court, they found that a reprimand was insufficient. The Supreme Court suspended Mr. Madison indefinitely with no leave to reapply for six months. Reinstatement was conditional on meeting the requirements set out in the court’s ruling. Mr. Madison was required to show he had undergone a psychological evaluation and completed anger management or other programs or therapies recommended as a part of that evaluation, and that he also attended the ethics school conducted by OCDC.
Mississippi: Lawyer Disbarred for Felony Conviction
Link for opinion: http://scholar.google.com/scholar_case?case=8119683737185704939&q=mississippi+
%2B+%22disciplinary+action%22&hl=en&as_sdt=400000000000002&as_ylo=2010
In The Mississippi Bar v. Castle, 38 So. 3d 632 (Miss 2010), the Mississippi Supreme Court disbarred a lawyer from the state’s bar association following her felony conviction in the United States District Court for the Southern District of Mississippi.
The lawyer was convicted for her involvement in a mortgage-fraud operation in which she, along with twelve others, bought inexpensive real estate through fraudulent acts and then sold the property at inflated prices. Furthermore, the co-conspirators forged documents and inflated financial information so that interested buyers who did not meet loan requirements could acquire financing. The particular lawyer’s role was to handle the loan closings for the initial purchase of the real estate as well as for the resale transactions. She also transferred money between the mortgage company and a co-conspirator and used money to pay buyers for being involved in their scheme.
The operation was uncovered when one of the prospective buyers went to the police. The lawyer was ultimately charged with bank fraud, wire fraud, conspiracy to commit money laundering, conspiracy to commit bank fraud and wire fraud, and submission of false statements. She was convicted of conspiracy to defraud the United States (count 1), frauds and swindles (counts 3-11), and money laundering (count 12). After the verdict, the lawyer was sentenced to forty-eight months for the conspiracy conviction and another forty-eight months for the frauds and swindles conviction, to be served concurrently. She was also sentenced to post-release supervision totally eight years.
Following the conviction, the Mississippi State Bar filed a formal complaint against the lawyer’s violation of Rule 6 of the Rules of Discipline for the Mississippi State Bar, with a copy of the criminal conviction attached. The lawyer did not respond.
Rule 6 states that if a lawyer is convicted of a criminal offense in and any state or federal court a certified copy of the judgment should be filed with the Supreme Court by the Complaint Counsel. Once this is done, the lawyer is immediately suspended from the practice of law. Additionally, once all appeals have been made without reversal the Court will enter an order for disbarment (Rule 6, Rules of Discipline for the Mississippi Bar).
The lawyer had exhausted all appeals and had her conviction affirmed by the appellate court, leaving the Supreme Court with no other option than to disbar her.
%2B+%22disciplinary+action%22&hl=en&as_sdt=400000000000002&as_ylo=2010
In The Mississippi Bar v. Castle, 38 So. 3d 632 (Miss 2010), the Mississippi Supreme Court disbarred a lawyer from the state’s bar association following her felony conviction in the United States District Court for the Southern District of Mississippi.
The lawyer was convicted for her involvement in a mortgage-fraud operation in which she, along with twelve others, bought inexpensive real estate through fraudulent acts and then sold the property at inflated prices. Furthermore, the co-conspirators forged documents and inflated financial information so that interested buyers who did not meet loan requirements could acquire financing. The particular lawyer’s role was to handle the loan closings for the initial purchase of the real estate as well as for the resale transactions. She also transferred money between the mortgage company and a co-conspirator and used money to pay buyers for being involved in their scheme.
The operation was uncovered when one of the prospective buyers went to the police. The lawyer was ultimately charged with bank fraud, wire fraud, conspiracy to commit money laundering, conspiracy to commit bank fraud and wire fraud, and submission of false statements. She was convicted of conspiracy to defraud the United States (count 1), frauds and swindles (counts 3-11), and money laundering (count 12). After the verdict, the lawyer was sentenced to forty-eight months for the conspiracy conviction and another forty-eight months for the frauds and swindles conviction, to be served concurrently. She was also sentenced to post-release supervision totally eight years.
Following the conviction, the Mississippi State Bar filed a formal complaint against the lawyer’s violation of Rule 6 of the Rules of Discipline for the Mississippi State Bar, with a copy of the criminal conviction attached. The lawyer did not respond.
Rule 6 states that if a lawyer is convicted of a criminal offense in and any state or federal court a certified copy of the judgment should be filed with the Supreme Court by the Complaint Counsel. Once this is done, the lawyer is immediately suspended from the practice of law. Additionally, once all appeals have been made without reversal the Court will enter an order for disbarment (Rule 6, Rules of Discipline for the Mississippi Bar).
The lawyer had exhausted all appeals and had her conviction affirmed by the appellate court, leaving the Supreme Court with no other option than to disbar her.
Michigan: Attorney General Disqualified for Representing a Judge in a Conflict of Interest Case
Link for Opinion: http://scholar.google.com/scholar_case?case=3957021689359029401&q=rules+of+professional+conduct&hl=en&as_sdt=80000004&as_ylo=2010
In People v. Waterstone, 486 Mich. 942, 783 N.W.2d 314 (2010), the court of appeals directed the Attorney General to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct 1.9 and 1.10. In this case, the Attorney General brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others. The Attorney General’s office assigned an assistant Attorney General from the Public Employment, Elections and Tort Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the Attorney General agreed to prosecute the cases.
The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client. In this case, the Attorney General’s office was a “firm” under Michigan Rules of Professional Conduct 1.10. This means that the Attorney General’s office should have conducted a conflict check before getting involved with the case. Even though the assistant Attorney General involved in the prosecution did not have actual knowledge of the Attorney General’s former representation of the judge, the court held that “prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances.” Because a simple conflict check would have revealed the federal lawsuit, the Attorney General should have obtained the consent of the former client before taking the case. Further, the Attorney General’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the Attorney General was still representing her when an investigator from the Attorney General’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the Attorney General to withdraw from prosecuting the judge in the criminal matter.
In People v. Waterstone, 486 Mich. 942, 783 N.W.2d 314 (2010), the court of appeals directed the Attorney General to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct 1.9 and 1.10. In this case, the Attorney General brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others. The Attorney General’s office assigned an assistant Attorney General from the Public Employment, Elections and Tort Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the Attorney General agreed to prosecute the cases.
The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client. In this case, the Attorney General’s office was a “firm” under Michigan Rules of Professional Conduct 1.10. This means that the Attorney General’s office should have conducted a conflict check before getting involved with the case. Even though the assistant Attorney General involved in the prosecution did not have actual knowledge of the Attorney General’s former representation of the judge, the court held that “prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances.” Because a simple conflict check would have revealed the federal lawsuit, the Attorney General should have obtained the consent of the former client before taking the case. Further, the Attorney General’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the Attorney General was still representing her when an investigator from the Attorney General’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the Attorney General to withdraw from prosecuting the judge in the criminal matter.
Maryland: Attorney Suspended Indefinitely in Reciprocal Discipline Action
Link for opinion: http://mdcourts.gov/opinions/coa/2010/18a09ag.pdf
In Attorney Grievance v. Haas, 412 Md. 536, 988 A.2d 1033 (2010), the Court of Appeals of Maryland upheld the indefinite suspension imposed by the Attorney Grievance Commission as reciprocal discipline for professional misconduct which occurred in New York.
Haas had received a three-year suspension in New York as a result of his representation of a defendant in the appeal of a murder conviction in which Haas accepted a retainer of $15,000 but provided little or no legal services and converted the fee to his own personal use.
Upon receiving information of the New York disciplinary action, the Attorney Grievance Commission of Maryland filed a petition for disciplinary action against Haas pursuant to Maryland rule 16-773 (b). The Attorney Grievance Commission alleged that Haas had violated Rules 1.1, Competence; 1.2, Scope of Representation and Allocation of authority Between Client and Lawyer; 1.3, Diligence; 1.4, Communications; 1.5, Fees; 1.15, Safekeeping Property; 1.16, Declining or Terminating Representation; Rule 8.4, Misconduct, of the Maryland Rules of Professional Conduct.
Haas appealed the indefinite suspension in Maryland arguing that Maryland rule 16-773 permits, but does not mandate reciprocal discipline. Haas also felt that there are exceptional circumstances that demonstrate that the imposition of the suspension would be a “grave injustice.” He argued that “the proceedings in New York denied Respondent the opportunity to fairly present his case” due to the proceedings taking place during his “decline into end stage liver failure” and as a result of “debilitating effects of treatments.” Haas was also “suffering from great adversity from the loss of all of the office records and equipment that would have enabled more effective responses to the requests for information.”
The Maryland Court of Appeals upheld the indefinite suspension as an equivalent sanction to the suspension in New York. Haas can only be reinstated to practice law in New York only by order by the state’s court. Thus, reinstatement to practice in Maryland is conditioned on the respondent’s reinstatement in New York.
This case teaches the importance of competently representing all clients for which an attorney accepts a retainer fee and enters into an attorney-client relationship, even when facing exceptional circumstances personally.
In Attorney Grievance v. Haas, 412 Md. 536, 988 A.2d 1033 (2010), the Court of Appeals of Maryland upheld the indefinite suspension imposed by the Attorney Grievance Commission as reciprocal discipline for professional misconduct which occurred in New York.
Haas had received a three-year suspension in New York as a result of his representation of a defendant in the appeal of a murder conviction in which Haas accepted a retainer of $15,000 but provided little or no legal services and converted the fee to his own personal use.
Upon receiving information of the New York disciplinary action, the Attorney Grievance Commission of Maryland filed a petition for disciplinary action against Haas pursuant to Maryland rule 16-773 (b). The Attorney Grievance Commission alleged that Haas had violated Rules 1.1, Competence; 1.2, Scope of Representation and Allocation of authority Between Client and Lawyer; 1.3, Diligence; 1.4, Communications; 1.5, Fees; 1.15, Safekeeping Property; 1.16, Declining or Terminating Representation; Rule 8.4, Misconduct, of the Maryland Rules of Professional Conduct.
Haas appealed the indefinite suspension in Maryland arguing that Maryland rule 16-773 permits, but does not mandate reciprocal discipline. Haas also felt that there are exceptional circumstances that demonstrate that the imposition of the suspension would be a “grave injustice.” He argued that “the proceedings in New York denied Respondent the opportunity to fairly present his case” due to the proceedings taking place during his “decline into end stage liver failure” and as a result of “debilitating effects of treatments.” Haas was also “suffering from great adversity from the loss of all of the office records and equipment that would have enabled more effective responses to the requests for information.”
The Maryland Court of Appeals upheld the indefinite suspension as an equivalent sanction to the suspension in New York. Haas can only be reinstated to practice law in New York only by order by the state’s court. Thus, reinstatement to practice in Maryland is conditioned on the respondent’s reinstatement in New York.
This case teaches the importance of competently representing all clients for which an attorney accepts a retainer fee and enters into an attorney-client relationship, even when facing exceptional circumstances personally.
Maine Lawyer’s Inappropriate Advances Leads to Suspension, Possible Disbarment
Link of Opinion: http://www.courts.state.me.us/court_info/opinions/documents/Bar-09-14Pongratz6-8-10.pdf
In Board of Overseers of the Bar v. Pongratz, BAR-09-14 (June 8, 2010) (Levy, J.), the Maine Supreme Judicial Court suspended the lawyer for 18 months (subject to other terms and conditions), after questioning his “ability to achieve the level of professionalism required” of an attorney, along with his failure to exercise reasonable care, skill and judgment, and for wrongfully asserting a lien against a client’s file.
The Maine Supreme Judicial Court affirmed the Maine Bar of Overseers conclusions that the lawyer’s inappropriate sexual advances toward a client was in violation of Maine Bar Rule 3.6(a), and the assertion of a lien on a client's file in order to secure payment of a fee is in violation of Maine Bar Rule 3.7(c)(1).
The lawyer’s failure to exercise reasonable care, and “interjecting his own needs and desires” into the attorney-client relationship, “while simultaneously providing representation and advice,” purposely loses the “trust and confidence” of a client. This, along with the lawyer’s history of a hiding the truth about his federal felony charge prior to admittance to the bar, and his recent actions, brought into question the lawyer’s “capacity to maintain the level of professionalism required of members of the Bar.”
This case teaches the importance of the lawyer’s duty under Maine Bar Rule 3.6(a) that states “a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services.” In addition, Maine Bar Rule 3.7(c)(1) states a “does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee.”
In Board of Overseers of the Bar v. Pongratz, BAR-09-14 (June 8, 2010) (Levy, J.), the Maine Supreme Judicial Court suspended the lawyer for 18 months (subject to other terms and conditions), after questioning his “ability to achieve the level of professionalism required” of an attorney, along with his failure to exercise reasonable care, skill and judgment, and for wrongfully asserting a lien against a client’s file.
The Maine Supreme Judicial Court affirmed the Maine Bar of Overseers conclusions that the lawyer’s inappropriate sexual advances toward a client was in violation of Maine Bar Rule 3.6(a), and the assertion of a lien on a client's file in order to secure payment of a fee is in violation of Maine Bar Rule 3.7(c)(1).
The lawyer’s failure to exercise reasonable care, and “interjecting his own needs and desires” into the attorney-client relationship, “while simultaneously providing representation and advice,” purposely loses the “trust and confidence” of a client. This, along with the lawyer’s history of a hiding the truth about his federal felony charge prior to admittance to the bar, and his recent actions, brought into question the lawyer’s “capacity to maintain the level of professionalism required of members of the Bar.”
This case teaches the importance of the lawyer’s duty under Maine Bar Rule 3.6(a) that states “a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services.” In addition, Maine Bar Rule 3.7(c)(1) states a “does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee.”
Louisiana: Lawyer Disbarred for Tax Fraud and Misrepresentation to Clients
Link for opinion: http://www.lasc.org/opinions/2010/10B0593.pc.pdf
In re Thomas, 38 So. 3d 248 (La. 2010), the Louisiana Supreme Court permanently disbarred a lawyer for repeatedly committing tax fraud and making false statements to clients. This followed the lawyer’s release from a thirty-six month prison term for previous tax evasion and misrepresentation charges.
The Louisiana Supreme Court affirmed that the lawyer was knowingly dishonest to clients and attempted to defraud the government by filing a false tax return and failing to pay taxes. The lawyer also displayed a pattern of misconduct to paying clients and the profession of law. The lawyer violated Louisiana Rules 8.4(b) and (c) of the Rules of Professional Conduct.
The lawyer also failed to pay restitution, and failed to admit to misrepresenting the clients. The court agreed that the lawyer intentionally deceived the Internal Revenue Service and the clients by not abiding by the Louisiana Rules of Professional Conduct and for filing a false tax return in violation of 26 U.S.C. § 7206(1).
This case demonstrates the importance of the lawyer’s duty under Louisiana Rule 8.4(b)(c) that states a lawyer shall not “commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In addition, the rule states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
In re Thomas, 38 So. 3d 248 (La. 2010), the Louisiana Supreme Court permanently disbarred a lawyer for repeatedly committing tax fraud and making false statements to clients. This followed the lawyer’s release from a thirty-six month prison term for previous tax evasion and misrepresentation charges.
The Louisiana Supreme Court affirmed that the lawyer was knowingly dishonest to clients and attempted to defraud the government by filing a false tax return and failing to pay taxes. The lawyer also displayed a pattern of misconduct to paying clients and the profession of law. The lawyer violated Louisiana Rules 8.4(b) and (c) of the Rules of Professional Conduct.
The lawyer also failed to pay restitution, and failed to admit to misrepresenting the clients. The court agreed that the lawyer intentionally deceived the Internal Revenue Service and the clients by not abiding by the Louisiana Rules of Professional Conduct and for filing a false tax return in violation of 26 U.S.C. § 7206(1).
This case demonstrates the importance of the lawyer’s duty under Louisiana Rule 8.4(b)(c) that states a lawyer shall not “commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In addition, the rule states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Kentucky: Attorney Disqualified Due to a Conflict of Interest Between Parties
Link: Lovell v. Winchester
Appellants: Richard Clay
Appellee: Jerry D. Winchester
Justice: Graves
Facts:
o Pursuant to CR 76.36, the Appellants request the court issue a writ of mandamus which would order the trial court to disqualify attorney Charles King as counsel for Minnie Kidd in their suit against Kidd in McCreary Circuit Court.
o Previously, the Appellants approached King about representing them in a claim regarding an alleged shortage of acreage in land purchased from Kidd.
o Attorney King declined to represent the clients. The clients retained another attorney and sued Kidd. Kidd obtained King as his attorney in the same lawsuit.
o The Appellants alleged a conflict of interest and moved to disqualify King. King stated he could recall nothing from his consultation with the Appellants and only knew of their encounter by checking an old office calendar.
o The circuit court refused to disqualify King and the Appellants sought a writ of mandamus in the Court of Appeals.
o Under KRE 503(a)(1) definition stated below, the court held that an individual who seeks legal services is entitled to the privilege regardless of if representation occurs or not. The Appellants consulted King with the intent that he would represent them in their case against Kidd.
Issue:
Is it a conflict of interest when an attorney who is representing a defendant in a lawsuit has previously consulted with the opposing party but does not recall the consultation?
Rule of law:
KRE 503(a)(1) defines a client as “a person . . . who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.”
Holding:
The Court of Appeals mandated that the circuit court enter an order to disqualify attorney Charles E. King. The holding of the circuit court is reversed.
Appellants: Richard Clay
Appellee: Jerry D. Winchester
Justice: Graves
Facts:
o Pursuant to CR 76.36, the Appellants request the court issue a writ of mandamus which would order the trial court to disqualify attorney Charles King as counsel for Minnie Kidd in their suit against Kidd in McCreary Circuit Court.
o Previously, the Appellants approached King about representing them in a claim regarding an alleged shortage of acreage in land purchased from Kidd.
o Attorney King declined to represent the clients. The clients retained another attorney and sued Kidd. Kidd obtained King as his attorney in the same lawsuit.
o The Appellants alleged a conflict of interest and moved to disqualify King. King stated he could recall nothing from his consultation with the Appellants and only knew of their encounter by checking an old office calendar.
o The circuit court refused to disqualify King and the Appellants sought a writ of mandamus in the Court of Appeals.
o Under KRE 503(a)(1) definition stated below, the court held that an individual who seeks legal services is entitled to the privilege regardless of if representation occurs or not. The Appellants consulted King with the intent that he would represent them in their case against Kidd.
Issue:
Is it a conflict of interest when an attorney who is representing a defendant in a lawsuit has previously consulted with the opposing party but does not recall the consultation?
Rule of law:
KRE 503(a)(1) defines a client as “a person . . . who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.”
Holding:
The Court of Appeals mandated that the circuit court enter an order to disqualify attorney Charles E. King. The holding of the circuit court is reversed.
Kansas: Plaintiffs granted new trial due to court’s ruling on the inclusion of expert witnesses
Link for opinion: http://ftp.resource.org/courts.gov/c/F2/950/950.F2d.643.88-1596.html
In Werth v. Makita Electric Works LTD, 950 F.2d 643, (KS 1991), the United States District Court of the District of Kansas erred in not allowing the testimony of the Plaintiff’s expert witnesses.
The United States District Court of the District of Kansas reversed the original court’s decision and remanded the case for a new trail due to the error of the trial judge’s exclusion of the expert testimony of two of the plaintiff’s expert witnesses.
The plaintiff’s Gilbert and Kathleen Werth filed a suit on behalf of their minor son, Chris, who had his fingers severed due to the malfunction of the defendants Makita Electric Works 7 ¼ inch circular saw while cutting a piece wood paneling. Chris has experience in the use of power tools including circular saws having used them at school and on the farm without any problems.
The complaint against Makita alleges three different counts however the plaintiffs elected to proceed with one count claiming the circular saw was defective in that the equipment was not equipped with either a blade brake or riving knife and the instruction manual contained in adequate warnings and instructions.
Makita sought to preclude the testimony of the plaintiff’s expert witness asserting he was not qualified under Fed.R.Evid.702 to testify on the proper design, function or operation of circular saws, blade brakes or riving knives. Plaintiff’s counsel said the accident was the result of the kickback of the saw that was caused by the wood binding of the wood on the rotating blade which forced the saw blade up out of the kurf (the cut made by the saw in the wood).
Makita’s counsel claimed that the incident happened at a result Chris’ carelessness in putting his hand under the paneling where it was exposed to the saw blade. Their claim is based on the fact that Chris’ cut was on the palm side. Because Chris could not recall exactly how his hand made contact with the saw blade, he conceded that it was possible that he placed his hand under the wood when steadying it.
As a result of the two expert witnesses not being able to testify, the plaintiff’s motion for a new trial was not granted. However the standards governing admission of the evidence, the admission of expert testimony is guided in federal court by the Federal Rules of Evidence 702 and 703. In Rule 702 is states “if specific, technical, or toehr specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Rule 703 states “the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonable relied upon by experts in the [articular field in forming opinions or inferences upon the subject, the facts or date need not be admissible in evidence.”
As a result of Rules 702, 703 and 704 the expert witnesses were allowed to testify and a judgment was reversed and the case was remanded for a new trail.
In Werth v. Makita Electric Works LTD, 950 F.2d 643, (KS 1991), the United States District Court of the District of Kansas erred in not allowing the testimony of the Plaintiff’s expert witnesses.
The United States District Court of the District of Kansas reversed the original court’s decision and remanded the case for a new trail due to the error of the trial judge’s exclusion of the expert testimony of two of the plaintiff’s expert witnesses.
The plaintiff’s Gilbert and Kathleen Werth filed a suit on behalf of their minor son, Chris, who had his fingers severed due to the malfunction of the defendants Makita Electric Works 7 ¼ inch circular saw while cutting a piece wood paneling. Chris has experience in the use of power tools including circular saws having used them at school and on the farm without any problems.
The complaint against Makita alleges three different counts however the plaintiffs elected to proceed with one count claiming the circular saw was defective in that the equipment was not equipped with either a blade brake or riving knife and the instruction manual contained in adequate warnings and instructions.
Makita sought to preclude the testimony of the plaintiff’s expert witness asserting he was not qualified under Fed.R.Evid.702 to testify on the proper design, function or operation of circular saws, blade brakes or riving knives. Plaintiff’s counsel said the accident was the result of the kickback of the saw that was caused by the wood binding of the wood on the rotating blade which forced the saw blade up out of the kurf (the cut made by the saw in the wood).
Makita’s counsel claimed that the incident happened at a result Chris’ carelessness in putting his hand under the paneling where it was exposed to the saw blade. Their claim is based on the fact that Chris’ cut was on the palm side. Because Chris could not recall exactly how his hand made contact with the saw blade, he conceded that it was possible that he placed his hand under the wood when steadying it.
As a result of the two expert witnesses not being able to testify, the plaintiff’s motion for a new trial was not granted. However the standards governing admission of the evidence, the admission of expert testimony is guided in federal court by the Federal Rules of Evidence 702 and 703. In Rule 702 is states “if specific, technical, or toehr specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Rule 703 states “the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonable relied upon by experts in the [articular field in forming opinions or inferences upon the subject, the facts or date need not be admissible in evidence.”
As a result of Rules 702, 703 and 704 the expert witnesses were allowed to testify and a judgment was reversed and the case was remanded for a new trail.
Iowa: Lawyer Suspended for Neglecting Client Matters
Link to opinion: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20100423/09-1074.pdf
In Iowa Supreme Court Atty. Disc. v. Hoglan, 781 N.W.2d 279 (2010), the Iowa Supreme Court suspended the license of an attorney for thirty days for his failure to file appeals in three separate cases and for his failure to perfect an administrative appeal. All four instances of neglect resulted in harm to the clients by costing them their cases. The lawyer admitted guilt in all four claims, but claimed he had health problems with his back due to a degenerative condition and had several surgeries during the period of time the incidents occurred, which contributed to his neglect.
The claims against the attorney were previously reviewed by the grievance commission; upon finding the attorney guilty of all four counts, the commission recommended a public reprimand. The court considered whether that punishment was appropriate given the nature of the attorney’s actions and the number of complaints.
The Iowa Supreme Court affirmed the commission’s conclusions that the attorney’s failure to practice reasonable promptness in all four counts violated Iowa R. Prof. Conduct 32:1.3; concluded his failure to withdraw representation due to physical malady violated rule 32:1.16(a)(2);concluded his failure to expedite litigation violated 32:3.2; concluded he violated ethical rules 32:8.4(a); and concluded his conduct was prejudicial to the administration of justice, violating rule 32:8.4(d).
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) states punishment of attorney neglect requires the court make a stricter punishment when there are multiple instances of neglect. While accepting the commission’s finding of neglect, the court determined a stricter punishment than public reprimand was warranted due to the fact the attorney was responsible for more than one instance of neglect. Moreover, Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001) claims stricter punishment is necessary when a client suffers harm due to attorney neglect. In this case, the attorney’s neglect led to client losses in all four instances, and the court determined the stricter punishment was appropriate. Finally, because the court determined the attorney’s back problems were a mitigating cause to his neglect, citing Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006), beyond the thirty-day suspension, the court required the attorney to provide a physical evaluation from a doctor claiming he was physically fit enough to provide counsel before his suspension could be ended.
In Iowa Supreme Court Atty. Disc. v. Hoglan, 781 N.W.2d 279 (2010), the Iowa Supreme Court suspended the license of an attorney for thirty days for his failure to file appeals in three separate cases and for his failure to perfect an administrative appeal. All four instances of neglect resulted in harm to the clients by costing them their cases. The lawyer admitted guilt in all four claims, but claimed he had health problems with his back due to a degenerative condition and had several surgeries during the period of time the incidents occurred, which contributed to his neglect.
The claims against the attorney were previously reviewed by the grievance commission; upon finding the attorney guilty of all four counts, the commission recommended a public reprimand. The court considered whether that punishment was appropriate given the nature of the attorney’s actions and the number of complaints.
The Iowa Supreme Court affirmed the commission’s conclusions that the attorney’s failure to practice reasonable promptness in all four counts violated Iowa R. Prof. Conduct 32:1.3; concluded his failure to withdraw representation due to physical malady violated rule 32:1.16(a)(2);concluded his failure to expedite litigation violated 32:3.2; concluded he violated ethical rules 32:8.4(a); and concluded his conduct was prejudicial to the administration of justice, violating rule 32:8.4(d).
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) states punishment of attorney neglect requires the court make a stricter punishment when there are multiple instances of neglect. While accepting the commission’s finding of neglect, the court determined a stricter punishment than public reprimand was warranted due to the fact the attorney was responsible for more than one instance of neglect. Moreover, Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001) claims stricter punishment is necessary when a client suffers harm due to attorney neglect. In this case, the attorney’s neglect led to client losses in all four instances, and the court determined the stricter punishment was appropriate. Finally, because the court determined the attorney’s back problems were a mitigating cause to his neglect, citing Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006), beyond the thirty-day suspension, the court required the attorney to provide a physical evaluation from a doctor claiming he was physically fit enough to provide counsel before his suspension could be ended.
Indiana: Lawyer waived affirmative defenses by failing to assert them in response to motion for summary judgment on legal malpractice/ negligence suit
Link for opinion: http://www.leagle.com/xm/Result.aspx?xmldoc=In+INCO+20100506224.xml&docbase=CSLWAR3-2007-CURR
In Reiswerg v. Statom, 926 N.E.2d 26 (Ind. 2010), the Indiana Supreme Court held that a party is not obligated to waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that is not dispositive to the issue of liability.
The Indiana Supreme Court affirmed that the trial court properly struck Reiswerg’s summary judgment on the basis that he waived his statute of limitations defense, by failing to raise it in response to Statom’s motion for partial judgment, based on Ind. Trial Rule 56 and Ind. Trial Rule 8(c). Dissenting to PART I of the majority opinion. Concurring to results of PART II.
The lawyer also alleged fraud an constructive fraud. Join App. at 46-48. Both defendant and Plaintiff were granted in favor of the court. All claims were not raised and identified only pieces.
This case teaches the importance of lawyer’s liability of being legally obligated and accountable. Black Laws Dictionary 997 (9th ed. 2009). This case also teaches that to hold an attorney accountable for negligence in the practice of law a plaintiff must demonstrate attorney breach of duty, employment of attorney to client, proximate cause, and damages. Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008)
In Reiswerg v. Statom, 926 N.E.2d 26 (Ind. 2010), the Indiana Supreme Court held that a party is not obligated to waive an affirmative defense by failing to raise it in response to a motion for partial summary judgment that is not dispositive to the issue of liability.
The Indiana Supreme Court affirmed that the trial court properly struck Reiswerg’s summary judgment on the basis that he waived his statute of limitations defense, by failing to raise it in response to Statom’s motion for partial judgment, based on Ind. Trial Rule 56 and Ind. Trial Rule 8(c). Dissenting to PART I of the majority opinion. Concurring to results of PART II.
The lawyer also alleged fraud an constructive fraud. Join App. at 46-48. Both defendant and Plaintiff were granted in favor of the court. All claims were not raised and identified only pieces.
This case teaches the importance of lawyer’s liability of being legally obligated and accountable. Black Laws Dictionary 997 (9th ed. 2009). This case also teaches that to hold an attorney accountable for negligence in the practice of law a plaintiff must demonstrate attorney breach of duty, employment of attorney to client, proximate cause, and damages. Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008)
Attorney Privately Reprimanded for Misconduct
Idaho: 140 Idaho 800, 102 P.3d 1119
This case came in front of the Supreme Court of Idaho in November of 2004. The attorney (defendant and petitioner) filed a petition for review of the Hearing Committee of the Professional Conduct Board (HCPCB) of the Idaho State Bar. The defendant wanted a review of a decision that was made by the HCPCB where he was found to have engaged in conduct that was prejudicial to the administration of justice and recommended that he receive a private reprimand. The attorney, who was prosecuting a defendant in a criminal case, obtained a transcript of the grand jury testimony in that case without an order of the court and then gave a copy of that transcript to a third party engaged in civil litigation against the same defendant. When reviewing the hearing committee's decision in an attorney discipline matter, the Supreme Court independently reviews the record and assesses the evidence to see if the misconduct was proven by clear and convincing evidence.
The rules of law for this case include:
Idaho Criminal Rule provide that no other person present in grand jury proceeding shall disclose to any other person what was said or done in a proceeding, except by order of any court for good cause shown, did not apply to attorney who was prosecuting a defendant in a criminal case, absent showing that attorney was present in the grand jury proceeding. Criminal Rule 6.4(c).
Conduct of attorney, who was prosecuting a defendant in a criminal case, in obtaining a transcript of grand jury testimony in that case without an order of court and then giving a copy of that transcript to a third party engaged in civil litigation against same defendant constituted conduct that was prejudicial to the administration of justice, for purposes of attorney disciplinary proceeding. Criminal Rules 5.2(a), 6.3(c)
Attorney who was prosecuting a defendant in a criminal case was not an “agent of the tax commission,” for purposes of statute making it a felony for any agent of the tax commission to knowingly divulge or make known to any person in any manner any tax return or tax information whatsoever obtained directly or indirectly by him in the discharge of his duties. I.C. § 63-3076.
A hearing committee does have authority to resolve issues of law that arise in connection with its determination of an attorney discipline matter before it; if either party contends that the committee's resolution of the matter is based upon an erroneous interpretation of law, that party can seek review in the Supreme Court.
The Idaho Supreme Court held and affirmed that:
1. The defendant’s petition for review was sufficient under Bar Commission Rules.
2. The conduct of the defendant was prejudicial to the administration. This was confirmed by evidence that showed him obtaining a transcript of the grand jury testimony in a criminal case where he represented the defendant without an order of the court and then giving a copy of that transcript to a third party that was engaged in a civil litigation suit against the same defendant.
3. The attorney (defendant) was not an “agent of the tax commission,” for purposes of statute making it a felony for any agent of the tax commission to knowingly divulge tax information obtained in the discharge of his duties.
4. Attorney’s conducted warranted private reprimand.
This case came in front of the Supreme Court of Idaho in November of 2004. The attorney (defendant and petitioner) filed a petition for review of the Hearing Committee of the Professional Conduct Board (HCPCB) of the Idaho State Bar. The defendant wanted a review of a decision that was made by the HCPCB where he was found to have engaged in conduct that was prejudicial to the administration of justice and recommended that he receive a private reprimand. The attorney, who was prosecuting a defendant in a criminal case, obtained a transcript of the grand jury testimony in that case without an order of the court and then gave a copy of that transcript to a third party engaged in civil litigation against the same defendant. When reviewing the hearing committee's decision in an attorney discipline matter, the Supreme Court independently reviews the record and assesses the evidence to see if the misconduct was proven by clear and convincing evidence.
The rules of law for this case include:
Idaho Criminal Rule provide that no other person present in grand jury proceeding shall disclose to any other person what was said or done in a proceeding, except by order of any court for good cause shown, did not apply to attorney who was prosecuting a defendant in a criminal case, absent showing that attorney was present in the grand jury proceeding. Criminal Rule 6.4(c).
Conduct of attorney, who was prosecuting a defendant in a criminal case, in obtaining a transcript of grand jury testimony in that case without an order of court and then giving a copy of that transcript to a third party engaged in civil litigation against same defendant constituted conduct that was prejudicial to the administration of justice, for purposes of attorney disciplinary proceeding. Criminal Rules 5.2(a), 6.3(c)
Attorney who was prosecuting a defendant in a criminal case was not an “agent of the tax commission,” for purposes of statute making it a felony for any agent of the tax commission to knowingly divulge or make known to any person in any manner any tax return or tax information whatsoever obtained directly or indirectly by him in the discharge of his duties. I.C. § 63-3076.
A hearing committee does have authority to resolve issues of law that arise in connection with its determination of an attorney discipline matter before it; if either party contends that the committee's resolution of the matter is based upon an erroneous interpretation of law, that party can seek review in the Supreme Court.
The Idaho Supreme Court held and affirmed that:
1. The defendant’s petition for review was sufficient under Bar Commission Rules.
2. The conduct of the defendant was prejudicial to the administration. This was confirmed by evidence that showed him obtaining a transcript of the grand jury testimony in a criminal case where he represented the defendant without an order of the court and then giving a copy of that transcript to a third party that was engaged in a civil litigation suit against the same defendant.
3. The attorney (defendant) was not an “agent of the tax commission,” for purposes of statute making it a felony for any agent of the tax commission to knowingly divulge tax information obtained in the discharge of his duties.
4. Attorney’s conducted warranted private reprimand.
Hawaii: Summary judgment upheld in favor of lawyer.
Link for opinion: http://www.courts.state.hi.us/docs/opin_ord/ica/2010/jun/ica28654mop.pdf
In Chin v. Carpenter-Asui, 233 P.3d 719 (2010), the Intermediate Court of Appeals of the State of Hawaii, affirmed in part, vacated in part and remanded for further proceedings for a claim of legal malpractice, breach of contract, breach of fiduciary duty, emotional distress and punitive damages. Chin appeals from the circuit court’s grant of summary judgment and reiterates her contentions that due to Carpenter-Asui’s alleged mishandling of Chin’s marital status discrimination case against her former employer, City Bank (Chin v. City Bank, Civ. No. 03-1-0196), Chin not only lost the case but was forced to give up her right to appeal as part of an unwanted and coerced settlement. The significant component of Chin’s current appeal focuses on Carpenter-Asui’s alleged failure in the underlying action to contest City Bank’s motion for attorney’s fees and costs, which led to a judgment against Chin in the amount of $54, 734.60. This in turn allegedly caused Chin to ultimately decide to forgo her appeal in the underlying action in exchange for City Bank’s dropping its demand for attorney’s fees and costs.
In support of her motion for summary judgment, Carpenter-Asui submitted a detailed declaration and exhibits setting forth her actions in representing Chin in the underlying action. This declarations set forth facts establishing that Carpenter-Asui communicated with Chin on a regular and extensive basis, that she responded to and opposed several substantive motions by the City Bank defendants, and that she perfected an appeal in the underlying action from the trial court’s judgment against Chin. Absent from the record is any evidence as to whether Carpenter-Asui responded to or opposed the motion for fees and costs in the first instance, and if not, the reason for not responding or opposing it. The underlying motion for fees and costs is not in evidence in this case.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005). In responding to a summary judgment motion, see Hawai’i Rules of Civil Procedure (HRCP) 56(e) (2010).
Further significance in this case is that Chin completely failed to present any admissible evidence in responding to Carpenter-Asui’s motion for summary judgment other that a proffered letter from her psychologist purporting to document her emotional trauma from the alleged discrimination at City Bank and her failure to get vindication through the legal system. See Henderson v. Prof’l Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2727 (1983)).
The conclusion was that the summary judgment was appropriate with regard to the claims for legal malpractice, breach of contract, and breach of fiduciary duty. With regard to the claim for emotional distress, summary judgment was appropriate as to all of Chin’s allegations except those pertaining to the handling of the underlying motion for fees and costs and whether the handling of that motion had any relation to efforts by Carpenter-Asui to settle and dismiss the underlying appeal. The remedy of punitive damages remains viable to the extent the claim for emotional distress survives.
In Chin v. Carpenter-Asui, 233 P.3d 719 (2010), the Intermediate Court of Appeals of the State of Hawaii, affirmed in part, vacated in part and remanded for further proceedings for a claim of legal malpractice, breach of contract, breach of fiduciary duty, emotional distress and punitive damages. Chin appeals from the circuit court’s grant of summary judgment and reiterates her contentions that due to Carpenter-Asui’s alleged mishandling of Chin’s marital status discrimination case against her former employer, City Bank (Chin v. City Bank, Civ. No. 03-1-0196), Chin not only lost the case but was forced to give up her right to appeal as part of an unwanted and coerced settlement. The significant component of Chin’s current appeal focuses on Carpenter-Asui’s alleged failure in the underlying action to contest City Bank’s motion for attorney’s fees and costs, which led to a judgment against Chin in the amount of $54, 734.60. This in turn allegedly caused Chin to ultimately decide to forgo her appeal in the underlying action in exchange for City Bank’s dropping its demand for attorney’s fees and costs.
In support of her motion for summary judgment, Carpenter-Asui submitted a detailed declaration and exhibits setting forth her actions in representing Chin in the underlying action. This declarations set forth facts establishing that Carpenter-Asui communicated with Chin on a regular and extensive basis, that she responded to and opposed several substantive motions by the City Bank defendants, and that she perfected an appeal in the underlying action from the trial court’s judgment against Chin. Absent from the record is any evidence as to whether Carpenter-Asui responded to or opposed the motion for fees and costs in the first instance, and if not, the reason for not responding or opposing it. The underlying motion for fees and costs is not in evidence in this case.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005). In responding to a summary judgment motion, see Hawai’i Rules of Civil Procedure (HRCP) 56(e) (2010).
Further significance in this case is that Chin completely failed to present any admissible evidence in responding to Carpenter-Asui’s motion for summary judgment other that a proffered letter from her psychologist purporting to document her emotional trauma from the alleged discrimination at City Bank and her failure to get vindication through the legal system. See Henderson v. Prof’l Coatings Corp., 72 Haw. 387, 401, 819 P.2d 84, 92 (1991) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2727 (1983)).
The conclusion was that the summary judgment was appropriate with regard to the claims for legal malpractice, breach of contract, and breach of fiduciary duty. With regard to the claim for emotional distress, summary judgment was appropriate as to all of Chin’s allegations except those pertaining to the handling of the underlying motion for fees and costs and whether the handling of that motion had any relation to efforts by Carpenter-Asui to settle and dismiss the underlying appeal. The remedy of punitive damages remains viable to the extent the claim for emotional distress survives.
Georgia: WALKER et al. v. CROMARTIE et al
Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In Walker v. Cromartie, 287 Ga. 511; 696 S.E.2d 654; 2010 Ga. LEXIS 487; 2010 Fulton County D. Rep. 2077, the Georgia Supreme Court held that the attorney’s did not commit malpractice towards the clients.
The Georgia Supreme Court stated that the clients, Walker, did not file an expert affidavit with their malpractice complaint, as required in O.C.G.A § 9-11-9.1, therefore making the claim invalid.
The lawyers were not held liable because the clients did not get a proper expert affidavit against the lawyers, therefore not upheld in court.
This case teaches the clients properly submit the proper documents required on time so that they have the possibility of having their malpractice case heard in a court of law.
In Walker v. Cromartie, 287 Ga. 511; 696 S.E.2d 654; 2010 Ga. LEXIS 487; 2010 Fulton County D. Rep. 2077, the Georgia Supreme Court held that the attorney’s did not commit malpractice towards the clients.
The Georgia Supreme Court stated that the clients, Walker, did not file an expert affidavit with their malpractice complaint, as required in O.C.G.A § 9-11-9.1, therefore making the claim invalid.
The lawyers were not held liable because the clients did not get a proper expert affidavit against the lawyers, therefore not upheld in court.
This case teaches the clients properly submit the proper documents required on time so that they have the possibility of having their malpractice case heard in a court of law.
Florida: Attorney Disbarred for Tax Evasion
Link for opinion: http://www.floridasupremecourt.org/decisions/2010/sc07-661.pdf
In Florida Bar v. Behm, No. SC07-661, 41 So. 3rd 136 (Fla 2010), the Florida Supreme Court disbarred an attorney from practicing law in the State of Florida due to his failure to prepare and maintain certain required trust account records and failure to file federal income tax returns and to pay federal income taxes from 1999 to 2006, despite having taxable income exceeding the threshold amount triggering the legal obligation to file.
The Florida Supreme Court affirmed the referee’s conclusions that the attorney had earned taxable income from his law practice. While the referee only asked the tribunal to sanction the attorney, the court permanently disbarred the attorney from ever again practicing law in Florida, violating Rules Regulating the Florida Bar 4-1.1 (failing to provide competent representation); 4-3.3(a)(2) (knowingly failing to disclose a material fact to a tribunal to avoid assisting a criminal or fraudulent act by a client); 4-3.4(a) (unlawfully obstructing another party‘s access to evidence or unlawfully altering, destroying, or concealing a document or other material that is relevant to a pending or a reasonably foreseeable proceeding or counseling or assisting another person to do so); 4-3.4(h) (threatening to present disciplinary charges solely to obtain an advantage in a civil matter); 4-4.2(a) (while representing a client, communicating about the subject of the representation with a person the lawyer knows to be found guilty of professional misconduct related to trust account violations and failure to file income tax returns since the time he became a lawyer.
The attorney asserted that he is not required to pay federal income taxes because his time was his life capital and, in practicing law, he was trading his life capital for an hourly fee, both of equal value.‖ The court ruled the argument was devoid of merit and lacked any basis in established law, and the attorney did not have a good faith belief that he didn’t owe taxes. The court cited Florida. Bar v. Del Pino, 955 So. 2d 556, 560-61 (Fla. 2007), another case of attorney tax evasion, which states “No doubt there are millions of Americans who would prefer not to have to deal with filing and paying their federal income taxes each April, but have no choice under the law. As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws.”
In Florida Bar v. Behm, No. SC07-661, 41 So. 3rd 136 (Fla 2010), the Florida Supreme Court disbarred an attorney from practicing law in the State of Florida due to his failure to prepare and maintain certain required trust account records and failure to file federal income tax returns and to pay federal income taxes from 1999 to 2006, despite having taxable income exceeding the threshold amount triggering the legal obligation to file.
The Florida Supreme Court affirmed the referee’s conclusions that the attorney had earned taxable income from his law practice. While the referee only asked the tribunal to sanction the attorney, the court permanently disbarred the attorney from ever again practicing law in Florida, violating Rules Regulating the Florida Bar 4-1.1 (failing to provide competent representation); 4-3.3(a)(2) (knowingly failing to disclose a material fact to a tribunal to avoid assisting a criminal or fraudulent act by a client); 4-3.4(a) (unlawfully obstructing another party‘s access to evidence or unlawfully altering, destroying, or concealing a document or other material that is relevant to a pending or a reasonably foreseeable proceeding or counseling or assisting another person to do so); 4-3.4(h) (threatening to present disciplinary charges solely to obtain an advantage in a civil matter); 4-4.2(a) (while representing a client, communicating about the subject of the representation with a person the lawyer knows to be found guilty of professional misconduct related to trust account violations and failure to file income tax returns since the time he became a lawyer.
The attorney asserted that he is not required to pay federal income taxes because his time was his life capital and, in practicing law, he was trading his life capital for an hourly fee, both of equal value.‖ The court ruled the argument was devoid of merit and lacked any basis in established law, and the attorney did not have a good faith belief that he didn’t owe taxes. The court cited Florida. Bar v. Del Pino, 955 So. 2d 556, 560-61 (Fla. 2007), another case of attorney tax evasion, which states “No doubt there are millions of Americans who would prefer not to have to deal with filing and paying their federal income taxes each April, but have no choice under the law. As guardians of the law, lawyers have a special obligation to honor the law themselves, including the tax laws.”
COLLEGE PARK LAWYER INDICTED FOR MONEY LAUNDERING, WITNESS TAMPERING, AND TAX OFFENSES
http://www.justice.gov/usao/md/Public-Affairs/press_releases/press08/CollegeParkLawyerIndictedForMoneyLaunderingWitnessTamperingandTaxOffenses
Title: Walter L. Blair is accused of money laundering due to an incident of the relative of a drug dealer who came to Blair for legal advice after circumstances relating to a safe of money that was left behind after the murder of the drug dealer and his girlfriend and her son. He is accused of using the money to pay other lawyers, real estate agents, himself and other individuals to enhance his lifestyle.
Blair was also accused of tampering with witnesses by intimidating the relative to give false statements to the FBI in connection with the money laundering incident. Blair and the relative, along with other individuals, made up a company in order to use the money to buy real estate to enhance their financial well being. The FBI became suspicious of this activity and had in interest in questioning “witnesses”.
In addition, Blair was charged with not filing tax returns for 2002 through 2004. Blair faces a maximum sentence of: 20 years in prison for each money laundering charge; 10 years in prison for the witness tampering charge; 10 years in prison for the obstruction of justice charge; and one year in prison for each charge of failure to file a tax return. (Justice.gov).
This case teaches not professional ethics but personal ones as well.
Title: Walter L. Blair is accused of money laundering due to an incident of the relative of a drug dealer who came to Blair for legal advice after circumstances relating to a safe of money that was left behind after the murder of the drug dealer and his girlfriend and her son. He is accused of using the money to pay other lawyers, real estate agents, himself and other individuals to enhance his lifestyle.
Blair was also accused of tampering with witnesses by intimidating the relative to give false statements to the FBI in connection with the money laundering incident. Blair and the relative, along with other individuals, made up a company in order to use the money to buy real estate to enhance their financial well being. The FBI became suspicious of this activity and had in interest in questioning “witnesses”.
In addition, Blair was charged with not filing tax returns for 2002 through 2004. Blair faces a maximum sentence of: 20 years in prison for each money laundering charge; 10 years in prison for the witness tampering charge; 10 years in prison for the obstruction of justice charge; and one year in prison for each charge of failure to file a tax return. (Justice.gov).
This case teaches not professional ethics but personal ones as well.
Delaware: Attorney put on probation for failing to represent client
Link for opinion: http://couts.delaware.gov/opinions/lists.aspx?ag=Supreme+Count
In re Elgart, Supreme Court No. 376,2010, the Delaware Supreme Court publicly reprimanded and placed Elgart on two years of probation for failing to properly represent his client which is in violation of rules 1.1, 1.3, 1.4 (a) (3), 1.4 (a) 4, 1.15 (d) of the Delaware lawyers Rules of Professional Conduct.
The attorney also violated Rule 8.1 (b) of the Delaware Lawyer Rules of Professional Conduct by failing to disclose records in connection with this disciplinary matter.
The Court affirmed the Board on Professional Responsibility’s findings. Even though the failure to represent his client, as well as failing to keep the client informed, may not have been intentional and a result of poor office management, the client was actually injured. The attorney failed to disburse funds to the client in a timely manner and let the statute of limitations fun on the under insurance claim. Elgart acknowledged the injuries and expressed remorse for his actions or lack thereof. The Board found the probationary period appropriate based upon the following case law: Matter of Howard, 705 A. 2d 243 (Del. 1997), In re Brodoway, 854 A. 2d 1158 (Del. 2004) and In re Callaway, 760 A. 2d 162 (Del 2000).
This case highlights the importance of keeping the client informed, as well as keeping client matters up to date. The multiple violations could have been avoided by staying in contact with the client. Rule 1.4 (a) (3) requires that “a lawyer keep the client reasonably informed about the status of the matter.” If the attorney would have followed this rule, he would have been more up to date on the client’s file, thus preventing the other violation.
In re Elgart, Supreme Court No. 376,2010, the Delaware Supreme Court publicly reprimanded and placed Elgart on two years of probation for failing to properly represent his client which is in violation of rules 1.1, 1.3, 1.4 (a) (3), 1.4 (a) 4, 1.15 (d) of the Delaware lawyers Rules of Professional Conduct.
The attorney also violated Rule 8.1 (b) of the Delaware Lawyer Rules of Professional Conduct by failing to disclose records in connection with this disciplinary matter.
The Court affirmed the Board on Professional Responsibility’s findings. Even though the failure to represent his client, as well as failing to keep the client informed, may not have been intentional and a result of poor office management, the client was actually injured. The attorney failed to disburse funds to the client in a timely manner and let the statute of limitations fun on the under insurance claim. Elgart acknowledged the injuries and expressed remorse for his actions or lack thereof. The Board found the probationary period appropriate based upon the following case law: Matter of Howard, 705 A. 2d 243 (Del. 1997), In re Brodoway, 854 A. 2d 1158 (Del. 2004) and In re Callaway, 760 A. 2d 162 (Del 2000).
This case highlights the importance of keeping the client informed, as well as keeping client matters up to date. The multiple violations could have been avoided by staying in contact with the client. Rule 1.4 (a) (3) requires that “a lawyer keep the client reasonably informed about the status of the matter.” If the attorney would have followed this rule, he would have been more up to date on the client’s file, thus preventing the other violation.
Connecticut: Attorney Convicted of Larceny in the First Degree by Embezzlement
Link for opinion: http://caselaw.findlaw.com/ct-court-of-appeals/1141851.html
In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.
The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).
On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.
The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”
This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.
In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.
The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).
On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.
The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”
This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.
Connecticut: Attorney Convicted of Larceny in the First Degree by Embezzlement
Student Name: Kayla Dropik
Link for opinion: http://caselaw.findlaw.com/ct-court-of-appeals/1141851.html
In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.
The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).
On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.
The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”
This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.
Link for opinion: http://caselaw.findlaw.com/ct-court-of-appeals/1141851.html
In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.
The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).
On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.
The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”
This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.
The People of the State of Colorado, Complainant v. Christopher Alster, Respondent
Link for opinion: https://web2.westlaw.com/result/default.wl?elmap=Inline&tc=31&service=Find&scxt=WL&sv=Split&tf=562&rlti=1&cxt=DC&n=1&mt=Westlaw&fn=_top&vr=2.0&rlt=CLID_FQRLT886181126192211&rp=%2fFind%2fdefault.wl&cite=221+P.3d+1088&cnt=OUT&rs=WLW10.10&ss=CNT
In citation number 221 P.3d 1088 (Colo 2009), the Colorado Supreme Court suspended Christopher Alster from the practice of law for a period of 90 days, he must complete the one-day ethics school and a one-day trust account school as well as paying the costs of the proceedings. Rules of Prof.Conduct, Rule 8.4(c); Rule 1.15(f)(1) (2007)
The Colorado Supreme Court stated, the respondent placed personal funds into a COLTAF account and thereafter used it as a personal business account to hide personal assets from his creditors. Based on these undisputed factual allegations, the Court found that Respondent violated Colo. RPC 1.15(f)(1) (failure to keep personal funds separate from COLTAF account) and Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The rules of professional conduct require an attorney to keep personal funds separate from client trust accounts and prohibiting the attorney from engaging in the aforementioned conduct.
The court report states, “The People filed their complaint in this matter on September 13, 2007. Respondent failed to answer the complaint or otherwise participate in these proceedings and the Court granted “Complainant's Motion for Default” on September 9, 2008. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.” FN1. See People v. Richards, 748 P.2d 341, 346 (Colo.1987).
In citation number 221 P.3d 1088 (Colo 2009), the Colorado Supreme Court suspended Christopher Alster from the practice of law for a period of 90 days, he must complete the one-day ethics school and a one-day trust account school as well as paying the costs of the proceedings. Rules of Prof.Conduct, Rule 8.4(c); Rule 1.15(f)(1) (2007)
The Colorado Supreme Court stated, the respondent placed personal funds into a COLTAF account and thereafter used it as a personal business account to hide personal assets from his creditors. Based on these undisputed factual allegations, the Court found that Respondent violated Colo. RPC 1.15(f)(1) (failure to keep personal funds separate from COLTAF account) and Colo. RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The rules of professional conduct require an attorney to keep personal funds separate from client trust accounts and prohibiting the attorney from engaging in the aforementioned conduct.
The court report states, “The People filed their complaint in this matter on September 13, 2007. Respondent failed to answer the complaint or otherwise participate in these proceedings and the Court granted “Complainant's Motion for Default” on September 9, 2008. Upon the entry of default, the Court deems all facts set forth in the complaint admitted and all rule violations established by clear and convincing evidence.” FN1. See People v. Richards, 748 P.2d 341, 346 (Colo.1987).
Texas: Lawyer Sued for Failing to Appeal for a Client after JNOV
Link for the opinion – the link to the opinion cannot be obtained from the state court website but can be viewed here: http://www.leagle.com/xmlResult.aspx?xmldoc=19901052786SW2d266_11007.xml&docbase=CSLWAR2-1986-2006
In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.
The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.
Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.
This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.
In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.
The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.
Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.
This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.
Arkansas: Case involving Wrong legal advice
Link for opinion: http://courts.arkansas.gov/court_opinions/sc/2010a/20100311/Lindsey%20v.%20Gary%20Green.pdf
Citation: Lindsey v. Green, No. 09-453, 2010 Ark. 118 (Ark Sup Ct, March 11, 2010)
In October of 1999 Lindsey and Ellis the appellants filled a claim against their previous employers for sexual harassment. Diane Sexton and Kelli Cashion were their attorneys for the sexual harassment claim. A motion for summary judgment was granted because Lindsey and Ellis had failed to obtain and “right to sue letter” from the Equal Employment Opportunity Commission (EEOC).
In July of 2010 the appellants had filed a new complaint alleging that the legal advice given by their counsel was wrong and therefore was negligent. This is because it was claimed that Sexton and Cashion has assured the appellants that there was no need to file with the EEOC. In December of 2000 the complaint was amended to include Green and his law office. The amendment of the complaint was due to the fact that the appellants claims that following the filing of the complaint in federal court, but prior to the dismissal of the complaint, Sexton had become an employee of Green, and that during that time, the complaint could have been amended to include causes of action under state law, such as the tort of outrage, a claim for negligent hiring and retention, and a claim of discrimination under the Arkansas Civil Rights Act.
In response Green filed one motion which among other things claimed that it was the appellants own fault that they did not refill their claim with the state court before the statute of limitations had expired. The appellants asserted that green’s use of the law was incorrect and all other filings were barred due to res judicata. The courts granted a summary judgment to Green saying that the appellants failed to show causation.
The Arkansas Supreme Court is trying to decide is if under the doctrine of res judicata does the dismissal of the case, for failure to file with the EEOC, bar any state claims from being filed. Res judicata only applies in cases where the decision is based on the merits, or the essential facts of the case. Because this case was dismissed for failure to satisfy a precondition is it not considered on the merits and therefore not barred. Therefore the appellants did not refill the complaint with the state court before the statute of limitations had expired creating the actual causation for their damages, and the judgment was affirmed
This uses the case law from Criales v. Am. Airlines, Inc., 105 F.3d 93 (2d Cir. 1997) to find authority on the issue. This was an on point case in which res judicata was being looked at after a dismissal for failure to satisfy preconditions. Additionally, Restatement (Second) of Judgments § 20(2) (1982) was looked at when the Supreme Court was determining the relevance of a precondition in the merits of a action as it defines res judicata.
Citation: Lindsey v. Green, No. 09-453, 2010 Ark. 118 (Ark Sup Ct, March 11, 2010)
In October of 1999 Lindsey and Ellis the appellants filled a claim against their previous employers for sexual harassment. Diane Sexton and Kelli Cashion were their attorneys for the sexual harassment claim. A motion for summary judgment was granted because Lindsey and Ellis had failed to obtain and “right to sue letter” from the Equal Employment Opportunity Commission (EEOC).
In July of 2010 the appellants had filed a new complaint alleging that the legal advice given by their counsel was wrong and therefore was negligent. This is because it was claimed that Sexton and Cashion has assured the appellants that there was no need to file with the EEOC. In December of 2000 the complaint was amended to include Green and his law office. The amendment of the complaint was due to the fact that the appellants claims that following the filing of the complaint in federal court, but prior to the dismissal of the complaint, Sexton had become an employee of Green, and that during that time, the complaint could have been amended to include causes of action under state law, such as the tort of outrage, a claim for negligent hiring and retention, and a claim of discrimination under the Arkansas Civil Rights Act.
In response Green filed one motion which among other things claimed that it was the appellants own fault that they did not refill their claim with the state court before the statute of limitations had expired. The appellants asserted that green’s use of the law was incorrect and all other filings were barred due to res judicata. The courts granted a summary judgment to Green saying that the appellants failed to show causation.
The Arkansas Supreme Court is trying to decide is if under the doctrine of res judicata does the dismissal of the case, for failure to file with the EEOC, bar any state claims from being filed. Res judicata only applies in cases where the decision is based on the merits, or the essential facts of the case. Because this case was dismissed for failure to satisfy a precondition is it not considered on the merits and therefore not barred. Therefore the appellants did not refill the complaint with the state court before the statute of limitations had expired creating the actual causation for their damages, and the judgment was affirmed
This uses the case law from Criales v. Am. Airlines, Inc., 105 F.3d 93 (2d Cir. 1997) to find authority on the issue. This was an on point case in which res judicata was being looked at after a dismissal for failure to satisfy preconditions. Additionally, Restatement (Second) of Judgments § 20(2) (1982) was looked at when the Supreme Court was determining the relevance of a precondition in the merits of a action as it defines res judicata.
Attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest
Link for opinion: http://www.azcourts.gov/Portals/36/2010_Scanned/JOandOrders/CookJO8112010.pdf
In re Cook, No. SB-10-0085-D (Ariz. Aug. 8, 2010) available at http://wwwazcourts.gov/Portals/36/2010_Scanned /JOandOrders/CookJ-8112010.pdf, Robert Cook, an attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest.
The Disciplinary Commission of Arizona has reviewed six counts against Mr. Cook. It has been found that Mr. Cook in representing several clients has violated several of the Arizona Court Rules. The violations include the following: 1.1(Competence), 1.2(Scope of Representation), 1.3(Diligence), 1.4(Communication), 1.5(Fees), 1.7(Conflict of Interest), 3.1(Meritorious Claims and Contentions), 3.2(Expediting Litigation), 5.3(Responsibilities Regarding Nonlawyer Assistants), and 8.4(d) (Misconduct).
Several of the counts have shown that Mr. Cook has not provided competent representation in violation of ER 1.1. Mr. Cook has missed critical filing deadlines that could have harmed each of the client’s case. If he did not miss a critical deadline he would request for an extension on the deadline therefore putting a delay in the case in violation ER 3.2. Several default judgments were filed against his clients due to his lack of response or delay in response. Due to the default judgments or lack of response from Mr. Cook, some of Mr. Cook’s clients felt they needed to hire a new attorney to represent them in their legal issues.
Mr. Cook’s communication with his clients is insufficient. Mr. Cook did not send an accounting statement of his services unless the client requested it. Mr. Cook has failed to inform his clients about decisions or circumstances relating to the client’s case. This includes if the client’s objectives could or will be met which leads to violation of 1.2 and 1.4. Mr. Cook also did not notify his client’s status of their claim. While representing several clients he did not communicate with the clients the scope of representation or what rates is the responsibility of the client in violation of ER 1.5.
While on a conference call representing the debtor in a bankruptcy case, Mr. Cook offered his services to several creditors which will lead to violation in ER 1.7. Several of the creditors have accepted the offer for Mr. Cook to represent them and file a Proof of Claim for them. It has also been shown the Mr. Cook was representing a LLC and individuals who were running the LLC which could lead to a violation of the ER 1.7. Since there was comingling of money in accounts it was found that this was a conflict of interest in representing the LLC and the individuals. The issue is what money is available to which creditors, the LLC creditors or the individual creditors. A waiver has not been signed by any of the parties that could have a potential interest.
The Hearing Officer recommends that Mr. Cook shall receive censure, two year probation, and refrain from engaging conduct that would violate Rules of Professional Conduct or rules of the Supreme Court. The probation will include participating in Law Office Management Assistant Program, participating in Member Assistance Program and Continuing Legal Education in specific areas. The Supreme Court of Arizona affirmed the recommendations of the Hearing Officers.
In re Cook, No. SB-10-0085-D (Ariz. Aug. 8, 2010) available at http://wwwazcourts.gov/Portals/36/2010_Scanned /JOandOrders/CookJ-8112010.pdf, Robert Cook, an attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest.
The Disciplinary Commission of Arizona has reviewed six counts against Mr. Cook. It has been found that Mr. Cook in representing several clients has violated several of the Arizona Court Rules. The violations include the following: 1.1(Competence), 1.2(Scope of Representation), 1.3(Diligence), 1.4(Communication), 1.5(Fees), 1.7(Conflict of Interest), 3.1(Meritorious Claims and Contentions), 3.2(Expediting Litigation), 5.3(Responsibilities Regarding Nonlawyer Assistants), and 8.4(d) (Misconduct).
Several of the counts have shown that Mr. Cook has not provided competent representation in violation of ER 1.1. Mr. Cook has missed critical filing deadlines that could have harmed each of the client’s case. If he did not miss a critical deadline he would request for an extension on the deadline therefore putting a delay in the case in violation ER 3.2. Several default judgments were filed against his clients due to his lack of response or delay in response. Due to the default judgments or lack of response from Mr. Cook, some of Mr. Cook’s clients felt they needed to hire a new attorney to represent them in their legal issues.
Mr. Cook’s communication with his clients is insufficient. Mr. Cook did not send an accounting statement of his services unless the client requested it. Mr. Cook has failed to inform his clients about decisions or circumstances relating to the client’s case. This includes if the client’s objectives could or will be met which leads to violation of 1.2 and 1.4. Mr. Cook also did not notify his client’s status of their claim. While representing several clients he did not communicate with the clients the scope of representation or what rates is the responsibility of the client in violation of ER 1.5.
While on a conference call representing the debtor in a bankruptcy case, Mr. Cook offered his services to several creditors which will lead to violation in ER 1.7. Several of the creditors have accepted the offer for Mr. Cook to represent them and file a Proof of Claim for them. It has also been shown the Mr. Cook was representing a LLC and individuals who were running the LLC which could lead to a violation of the ER 1.7. Since there was comingling of money in accounts it was found that this was a conflict of interest in representing the LLC and the individuals. The issue is what money is available to which creditors, the LLC creditors or the individual creditors. A waiver has not been signed by any of the parties that could have a potential interest.
The Hearing Officer recommends that Mr. Cook shall receive censure, two year probation, and refrain from engaging conduct that would violate Rules of Professional Conduct or rules of the Supreme Court. The probation will include participating in Law Office Management Assistant Program, participating in Member Assistance Program and Continuing Legal Education in specific areas. The Supreme Court of Arizona affirmed the recommendations of the Hearing Officers.
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