Rhode Island: Former Attorney Found Guilty for Legal Malpractice for Breach of Duty of Care

In Credit Union Cent. Falls v. Groff, 966 A.2d 1262 (R.I., 2009) the attorney misappropriated funds in connection with two real estate closings. The court addressed the issue of whether the former attorney owed a duty of care to the credit union. The court held that since it was uncontested that the former attorney misappropriated loan proceeds, the credit union was entitled to recover on its claim of attorney malpractice.
Mr. Groff was acting as closing attorney for real estate transactions involving Credit Union Central Falls customers. The credit union provided Mr. Groff with a check in the attorney’s name to discharge two existing mortgages to ensure the priority of the credit union mortgage. Mr. Groff did not pay off the previous mortgages but made monthly payments on the prior loans to conceal their continued existence and instead used the money for personal ends.
Rhode Island ethical codes permit multiple representation if there is full disclosure, the clients consent in writing, and the attorney reasonably believes there will be no harm to either client. Although Mr. Groff was representing the credit union’s customers for these real estate transactions, Mr. Groff had a deep financial interest in maintaining a good relationship with the credit union and much of the closing attorney’s duties were directly intended to benefit the credit union. In McIntosh County Bank v. Dorsey &Whitney, LLP, 745 N.W.2d 538, 547 (Minn. 2008), the court reaffirmed its rule of law “that in order for a third party to proceed in a legal malpractice action, the party must be a direct and intended beneficiary of the attorney’s services.” It also went on to state that “the benefit to the third party must be ‘the end and aim of the transaction’ before the beneficiary may be called direct.” In this case, Mr. Groff was required to ensure that the credit union’s mortgage had priority and the borrowers authorized Mr. Groff to satisfy the credit union’s loan requirements. Therefore, the court found that the credit union, if not a client, was at the very least an intended beneficiary of the contractual obligations between Mr. Groff and the borrowers, and as such, the attorney owed the credit union a duty of care.
The court found in the credit union’s favor and that they are entitled to recover on its claim of attorney malpractice for Mr. Groff’s flagrant breach of his duty to use “ordinary care and skill” in the exercise of his profession. The court found summary judgment in favor of Credit Union Central Falls.

Minnesota: Lawyer Suspended After Leaving State for Professional Misconduct

In In re Sungtaek Cho, 764 N.W.2d20, (Minn 2009) the Minnesota Supreme Court suspended Sungtaek Cho from the practice of law for profession misconduct which included the neglect of client matters, failure to communicate with clients and failure to cooperate with the Director of the Office of Lawyer Professional Responsibility’s investigation.

The Minnesota Supreme Court affirmed that the lawyer was in violation of Minn. Rules of Professional Conduct 1.1, 1.3, 1.4 which dealt with attorney client relationship and 8.1(b) which deals with disciplinary matters. The lawyer was also in violation Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

The lawyer also could not be found in the state or served personally with the petition for disciplinary action that was filed on October 5, 2007. The Minn. Supreme Court allows the lawyer one year to move from vacation of the order and for leave to answer the disciplinary petition. If the lawyer fails to appear within one year the allegations in the petition for disciplinary action would be admitted.

This case teaches the importance of a lawyers duty to their clients. Under Minn. Rules of Professional Conduct 1.1,1.3, and 1.4 a lawyer shall “provide competent representation to a client which requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation”, “shall act with reasonable diligence and promptness in representing a client” and a lawyer “shall communicate with their client”. If this is not done disciplinary action may result.

Minnesota: Dual Representation

In Commonwealth v. Brown, 972 A.2d 529 (Minn. 2009), the court reversed and remanded the appeal of defendant Brown for a petition on post conviction relief based on claim of ineffective assistance of counsel due to conflict of interest when the trial court denied it.

Brown was not aware his attorney also represented the codefendant Bryant. Brown was told Bryant will testify against him and he was convinced to plead guilty for all counts of robbery, criminal conspiracy, and delivery of controlled substance. Brown was sentence to a ten to twenty year incarceration. The standard for an attorney’s ethical obligation is stated in the ABA Code under section 5-16 that the attorney must reveal and explain to each client the pros and cons of the same legal counsel representation.

However, the burden of proof lies in the party seeking the claim. The party does not have to show or prove actual harm but just the “possibility of harm” due to the dual representation. In this particular case, Brown received a lesser sentence than Bryant. The Court does not have the actual evidence to dispute that. Therefore, the court reversed the decision for Brown’s appeal and is remanding a hearing for Brown. The hearing is to determine whether the representation was ineffective which would “require the withdrawal of Brown’s plea.”

Pennsylvania: Lawyer’s suspension vacated by the Supreme Court of Pennsylvania

In Re Counsel v. Debbie Ann Carlitz, 1336 No. 131 DB 2007. (March 26, 2008)
Following the submission to the Supreme Court of a Joint Petition in Support of Discipline, Debbie Ann Carlitz was suspended on consent for a period of one year and one day by Order of the Court dated March 26, 2008 according to the Disciplinary Board Rules Rule 277 Pa EE §§ 91.91-91.91 of. Petitioner requested review of this matter as she claimed that she did not enter into the consent discipline knowingly, freely or voluntarily. By Order of May 11, 2009, the Court remanded the matter for an evidentiary hearing. Office of Disciplinary Counsel and Respondent entered into Joint Stipulations of Fact and Law on August 27, 2009. The Hearing Committee accepted the Stipulations and based on the information contained therein, recommended that the Suspension Order be vacated and the matter remanded. The Joint Stipulations of Fact and Law support the finding that Respondent did not personally endorse the Joint Petition in Support of Discipline or expressly authorize anyone to sign the Joint Petition on her behalf. It is clear that Bonnie Sweeten, Respondent's paralegal, handled all aspects of the consent discipline and never revealed the circumstances to Respondent. Respondent remained ignorant of her suspended status until it was pointed out to her by a colleague. For these reasons, the Board recommends that the Suspension Order at 131DB 2007 be vacated and the matter remanded to the Office of Disciplinary Counsel for further consideration.
This case teaches the importance of the lawyer’s duty under Pa R.D.E. Rule 215 (e) and 215 (g) that states that an attorney has an affirmative duty to know the status of his privilege to practice law and comply with professional requirements in Re Anonymous No 123 DB 1996 (Simon Belli,111), 41 Pa.D. & C. 4th 290,299-300(1998). An attorney cannot continue practicing law after being transferred to inactive status for failing to fulfill continuing legal education requirements. An attorney must enter into the consent discipline knowingly, freely or voluntarily.

Oklahoma: Lawyer suspended for billing clients with false expenses

The Oklahoma bar association filed a complaint against a lawyer that violated the Oklahoma professional conduct in State ex rel. Okla. bar Ass'n v. Pacenza, 2006 OK 23, 136 P.3d 616. The Lawyer billed clients for travel expenses that she did not incur and work expenses that she did not do for the clients. The lawyer also explained that she was under stress when she billed clients for work she did not do, being that she was unable to spend as much time with her family. An employee figured out she was billing clients wrong when they found discrepancies in their records. The lawyer did say she felt bad but also called it a bad judgment call and wanted to spend time with her children but did not want to ask the law firm for time off. Did the lawyer violate Oklahoma professional conduct when billing clients for travel fees and work that was not real? Yes, she did not travel for clients or work on client cases even though she billed clients. The court also agreed that stress was not a reason for violating the Oklahoma professional code and for being dishonest. The lawyer violated the Oklahoma professional conduct 1.5, 1.15, 8.4(a), 8.4(b), 8.4(c), and Rule 1.3 of the Rules Governing Disciplinary Proceedings. The Oklahoma tribunal found the lawyer guilty and suspended her from working for a period of twelve months, receive psychological treatment, and to pay court proceedings. According to Oklahoma law the lawyer will have to inform clients if he or she is being suspended. The lawyer ended up having to pay 948.24 in ninety days from the day the opinion was stated.
The Oklahoma bar association also took action when the lawyer involved in this case was dishonest and his integrity tested. The lawyer didn’t tell his clients about a 300,000.000 tax lien on a property that they had bought, even after the clients made improvements to the property. A six month suspension was suggested but the courts decided to suspend the lawyer for two years and one day. Unfortunately there are a lot of cases like this. Many lawyers make mistakes if they intend to or not.

Nebraska: Lawyer Disbarred for Failure to use the Attorney Trust Account

In State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002), the Nebraska Supreme Court disbarred a lawyer from practicing law in the State of Nebraska, held in contempt of court and ordered to pay all costs associated with his failure to use an Attorney Trust Account and provide documentation for the monies from his client’s personal injury claim that was to be used to satisfy a physician’s lien. The lawyer failed to place the settlement proceeds for the physician’s lien into an Attorney Trust Account, and failed and refused to satisfy the lien.

The Nebraska Supreme Court affirmed the referee’s conclusions that the lawyer’s conduct violated several disciplinary and trust account rules and his oath of office as an attorney, in violation of DR 1-102(A)(1), (4), and (6); DR 6-101(A)(3); DR 9-102(A); Neb. Ct. R. of Discipline 9(E); and Neb. Ct. R. of Trust Accounts and Blanket Bonds 1 and 4.

The lawyer did not dispute or file a written exception to the referee’s report, and the relator filed a motion for judgment on the pleadings, under Neb. Ct. R. of Discipline 10(L) (rev. 2001). When no exceptions are filed, the Nebraska Supreme Court may consider the referee’s findings final and conclusive. See State ex rel. Counsel for Dis. V. Apker, 263 Neb. 741, 642 N.W.2d 162 (2002).

This case shows the importance of the lawyer’s duty under Rule 1.15 (a) that states a lawyer shall “hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account…with consent of the client or third person.” In addition, Rule 1.15 (d) states that “upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person…a lawyer shall promptly deliver to the client or third person any funds or property that the client or third person is entitled to receive.”

Mississippi: Lawyer guilty of alienation of affection, breach of contract, and intentional infliction of emotional distress

In In re Pierce v. Cook, 992 So. 2d 612; (Miss. 2008), the Mississippi Rankin County Circuit Court found in favor of the plaintiff, Ernest Allen Cook, and awarded him $1,500,000 in damages. The court found the defendant, Ronald Henry Pierce guilty of alienation of affection, breach of contract, and intentional infliction of emotional distress after.
In the fall of 1997 Ernest Allen Cook Sr., wife Kathleen Susan Shorkey Cook, and minor son Ernest Allen Cook Jr., appointed attorney Ronald Henry Price to represent them in a medical mal-practice suit. In June 2003, Cook moved to California to pursue a career in the film industry. His wife and children stayed at their home in Mississippi. Cook frequently visited but despite the efforts Cook and Kathleen separated and ceased cohabitation in September 2000. Pierce was still representing them on the medical mal-practice case at this time. Around September 30, 2000, Pierce began an intimate relationship with Kathleen. October 2000 is when Cook became aware of this relationship and terminated Pierce as his attorney. June 3, 2002 Cook was granted a divorce from Kathleen. Soon after, Kathleen and Pierce were married and had a child together.
December 23, 2002, Cook filed a complaint against Pierce in the Circuit Court of Rankin County. He was accusing Pierce of alienation of affection, breach of contract, and intentional infliction of emotional distress. This was based on Pierce’s affair with Kathleen. June 20-23, 2006, the trial was held in Rankin County Circuit Court, presiding was Judge Samac S. Richardson. The Jury decided in Cook’s favor, against Pierce, and entered a judgment awarded to Cook in the amount of $1,500,000, June 7, 2006. Pierce went on to file a motion on September 27, 2006 for a new trial. The court denied it.
On October 25, 2006, Pierce appealed the trial court’s decision. In the matter of breach of contract, Pierce claimed that Cook needed to have sufficient testimony to prove malpractice. Hickox v. Holleman, 502 So. 2d 626, 635 (Miss. 1987). However, Cook stated he did not sue for malpractice but breach of fiduciary duty owed to him. It was found that Pierce had committed malpractice but in Byrd, 933 So. 899, 904 (Miss. 2006), there were some exceptions laid out for expert testimony. “The attorney who finds himself the defendant in a legal malpractice case, however, has a judge and the trial attorneys who are already experts.” So, Cook did not need expert testimony, he already had experts involved in the case. Another good point to bring up is that ordinary jurors have a normal level of intelligence and lay expertise to determine if an attorney has an affair with his clients husband is a breach of duty, and expert testimony would not lend guidance on this situation. The court found this issue without merit.

Pierce also appealed stating that Cook did not follow the statute of limitations. According to Smith v. Sneed, 638 So. 2d 1252, 1255 (Miss. 1994), in a continuing tort the statute of limitations does not begin until the date of the last injury. Cook’s divorce was granted June 3, 2002 and he filed the claim on December 23, 2002, so it was with-in the one year statute of limitation. Stevens v Lake, 615 So. 2d 1177, 1183 (Miss. 1993) it was decided that the continuing tort doctrine must have continuing incidences occurring after the initial incident. This is the case for Cook. Pierce took Kathleen on a trip to New Orleans, and they had sexual relations. Pierce flaunted his involvement with Kathleen in a local restraint in Jackson. There is also a tape of Pierce coaching Kathleen of what to say to Cook. Pierce called Cook on his Birthday to apologize for the situation with Kathleen. The Trail Court did not find err in the statute of limitations because of these events, until the divorce, and Cook did file with-in the statute of limitation. For these reasons the court found this issue to be without merit also.
“For the reasons stated in the Rankin County Circuit Court judgment entered consistent with the jury verdict against Ronald Henry Price and in favor of Ernest Allen Cook Sr., in the amount of $1,500,000, is affirmed.

North Carolina: Lawyer Charge with Professional Negligence

In Drake v. Hance, (N.C. Court of Appeals. 2009), the North Carolina Court of Appeals found the lawyer breached his duty of care to the plaintiff and caused proximate damages.
Plaintiff’s owned two lots, 3301 Chancellor Drive in Monroe County, North Carolina (Lot 15) and a vacant lot across the street, Lot 11. Hance contracted to purchases the vacant lot owned by the plaintiffs. The defendant served as an attorney to transfer the deed and close the sale. An error was made in the legal description of the transferred property. The description of the deed included both lots and a purchase prices for only one of them. A reformation was sought by plaintiffs to delete Lot 11 from the recorded deed. Hance appealed to the court and the decision to reform the deed stood. Plaintiffs are attempting to recover damages from the defendant with allegations of professional negligence.
The North Carolina Court of Appeals reversed and remanded the decision of the lower court because the plaintiff’s signing of the deed does not constitute contributory negligence on their part. In a negligence action, summary judgment is proper if evidence fails to establish negligence on the defendant’s part, contributory negligence on the plaintiff’s part, or the alleged negligent conduct was not the proximate cause of the injury. Cornelius, 120 N.C. App. 175-76, 461 S.E.2d at 340.
This case teaches the importance of the duty that a lawyer owes to his or her clients. When an “attorney-client relationship exists between the parties, a fiduciary duty to render professional services in a skillful and prudent manner. See also Cornelius v. Helms, 120 N.C. App. 172, 175, 461 S.E.2d 338, 340(1995). In addition, the N.C. Rules of Prof. Conduct 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

New York: Attorney’s Name Stricken from the Roll of Attorneys Admitted to Practice Before the Court

In In re Saghir, 632 F. Supp 2d 328, 2009 U.S. Dist. LEXIS 63370 (S.D.N.Y., 2009), the United States District Court for the Southern District of New York issued an interim order of suspension, and due to further allegations ordered to have the name of the attorney stricken from the roll of attorneys admitted to practice before the Court.
The United States District Court for the Southern District of New York agreed the attorney had engaged in conduct prejudicial to the administration of justice in violation of DR 1–102(A)(5) “by failing to submit answers to inquiries concerning the complaints filed against him and failing to provide materials pursuant to subpoena, respondent ‘thwarted the Committee’s investigation…and engaged in conduct prejudicial to the administration of justice in violation of DR 1–102(A)(5)’” See In re Deluca, 230 A.D.2d 234, 235, 655 N.Y. S.2d 516, 517 (1st Dep’t 1997)
The attorney also failed to cooperate in violation of 22 NYCRR 603.15(e), by “failing to comply with subpoena records without any justification, asserted his privilege against self incrimination at his disposition, and was deemed to have ‘willful[ly] and deliberate[ly]’ failed to cooperate.” See In re Pikna, 101 A.D.2d 588, 589, 476 N.Y.S.2d 140, 141 (1st Dep’t 1984)
The Court wrote in the Interim Suspension, “[S]aghir not only has demonstrated an inability to conform to the rules and orders of this Court, but also has failed to take any steps to ameliorate the prejudice to her clients and the public after her defaults were brought to her attention.”
This case teaches the importance of an attorney to conform and abide by the rules and orders of the Court. The case also teaches when there is a lack of competence in the attorney, that lacking leads to a negligent representation of the client and the attorney as seen by the Court.

Utah: Case Against Lawyer for Civil Rights Violation Dismissed

In In re Yengich, Slip Copy, 2009 WL 4543688 (D.Utah), the Utah District Court dismissed a case against Defendant Yengich and other attorneys for conspiring to deny the Plaintiff’s co-defendants in another case the right to a fair trial, and various other grievances against the Defendant. The Plaintiff’s co-defendant’s guilty pleas in this other case were a clerical error. The Plaintiff filed the complaint pro-se.

The Utah District Court found that although the clerical error was made, the Plaintiff had no standing as a third party to assert claims for her co-defendants. The Supreme Court has recognized that “there may be circumstances where it is necessary to grant a third party standing to assert the rights of others.” Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Warth, 422 U.S. at 499). A party seeking third-party standing must make two additional showings: (1) that the party asserting the right has a close relationship with the person who possesses the right; and (2) that there is a hindrance to the possessor's ability to protect his or her own interests. Id.

To the extent that Ms. Wood-Federowicz may be attempting to assert claims on behalf of Mr. Federowicz and Ms. Bluff, she also has not satisfied the requirements for third-party standing. That is, the Court can find no indication that there is any hindrance to the abilities of Mr. Federowicz and Ms. Bluff to protect their own interests. See Kowalski, 543 U.S. at 129. Indeed, both Mr. Federowicz and Ms. Bluff have filed their own section 1983 actions in the District of Utah (09-cv-00481-JLK and 09-cv-00483-JLK). Accordingly, Ms. Wood-Federowicz is not entitled to third-party standing in this action. Because the Court finds that Ms. Wood-Federowicz does not have standing, it need not address Defendant's other arguments for dismissal.

This case teaches that even though an attorney may make a mistake which could be construed as mal-practice, it’s best to leave some legal issues to the professionals.

Montana: Office of Disciplinary Counsel files complaint against Lawyer for violations of the Montana Rules of Professional Conduct

In matter of Olson, 2009 MT 455; 354 Mont. 358; 2009 Mont. LEXIS 693, The Office of Disciplinary Counsel filed a complaint against Eric Olson alleging violations of Rule 3.4 and Rules 8.4(b)-(d) of the Montana Rules of Professional Conduct.
Olson undertook the representation of Kelly Mortenson who was charged with 38 counts of sexual abuse of children. Olson and Kohm, a retired detective from the Cascade County Sheriff’s Office that Olson retained, collected items from the Mortenson apartment they thought would be helpful in formulating a defense. There were 13 photographs among other items taken from the apartment. Olson and Kohm testified they did not believe the photographs were child pornography. Olson testified also that he did not think the items were contraband.
Kohm was concerned about if they could be subject to criminal culpability for possessing the photos. Olson got advice and counsel from Tony Gallagher, the Chief Federal Defender in the District of Montana who had extensive experience in handling child pornography cases. Olson was advised to seek a protective order in case someone thought the items were child pornography. Olson got the order.
Olson was hired as the state training coordinator for the Office of the State Public Defender. He did not go forward with the Mortenson defense.
Olson did not turn over any of the evidence he seized to law enforcement officials or tell them of the existence of the evidence prior to leaving. Mortenson’s case was assigned to Carl Jenson. Jensen learned of the evidence and ordered Kohm to turn over the evidence to County Attorney Light. Kohm objected but did turn it over. Light had no intention of prosecuting Olson for possessing the evidence.
Olson contested the charges. The Commission on Practice concluded that the Office of Disciplinary Counsel (ODC), failed to prove by clear and convincing evidence that Olson violated the Montana Rules of Professional Conduct. The Commission recommended that the ODC’s complaint be dismissed with prejudice.
The ODC objected to the Findings of Fact, Conclusions of Law, and Recommendation of the Commission. The Supreme Court of Montana denied the ODC’s objections and adopted the Commission’s recommendation to dismiss the complaint with prejudice.
ODC’s complaint alleged Olson violated MRPC 3.4 –Fairness to opposing counsel, when he unlawfully obstructed another party’s access to evidence and/or concealed documents or other materials having potential evidentiary value.” The complaint also alleges Olson of violating MRPC 8.4(b) the “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” and “tampering with or fabricating physical evidence in § 45-7-207, MCA.
The ODC claims the Commission failed to decide if the photographs were child pornography. They just determined that Olson had a good faith belief they were not child pornography or contraband. The ODC states that Olson had an ethical obligation to turn over the contraband to authorities and his good faith belief cannot defeat this obligation.
The Supreme Court stated that the main question is not if the photographs were pornographic but if the ODC demonstrated clear and convincing evidence that Olson violated MRPC 3.4(a) and 8.4(b)-(d). The Commission concluded that Olson did all he could to comply with Rule 3.4. He preserved the evidence in a way that was safe, and got a protective order for its possession. Rule 8.4(b) there is no evidence that Olson intended to tamper with evidence. Rule 8.4(c), the ODC failed to demonstrate that Olson’s conduct was dishonest or deceitful. Rule 8.4(d) the ODC failed to prove by clear and convincing evidence that Olson’s conduct met the standard of some nexus between Olson’s conduct and an adverse effect on the administration of justice.
The recommendation of the Commission is adopted and ordered that the complaint against Olson is dismissed with prejudice.

Louisiana: Attorney permanently disbarred for negligence against several clients

In In Re S. Judd Tooke, 22 So. 3d 902 (La. 2009), the Louisiana Supreme Court ordered a lawyer’s name to be stricken from the roll, their license to practice law revoked in Louisiana, and that the attorney be permanently prohibited from being readmitted to the practice of law in Louisiana, and was ordered to pay full restitution to his victims.

The Louisiana Supreme Court affirmed the hearing committee’s conclusions that the lawyer knowingly neglected legal matters, failed to communicate with clients, failed to properly supervise his non-lawyer assistant, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, had converted client to his own use by billing and receiving payment for expenses and legal fees that did not exist, did not properly communicate a fee arrangement to a client, did not refund unearned fees, didn’t fulfill obligations upon termination of representations, also engaged in conflicts of interest. Also the lawyer’s conduct was more intentional than negligent. The attorney violated duties to his clients, the legal system, and the legal profession, he actually caused substantial harm. The attorney was in violation under Louisiana Rules of Professional Conduct: 1.1(a), 1.3, 1.4, 1.5(a), 1.5(b), 1.7(a), 1.8(c), 1.15(a), 1.16(d), 3.2, 5.3, 8.4(a), 8.4(b), and 8.4(c).

The lawyer had admitted to some of the deceit, yet did not offer any type of repayment to the victims of his deceit, fraud, or misrepresentation. The lawyer failed to fix any of the wrongs that he made in regards to The Rhodes Matter, The Hamilton Matter. The lawyer had used a client trust account for his own personal use. The lawyer failed to answer the formal charges that were brought against himself; he also never filed anything for the hearing committee’s consideration. In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3).
This case teaches the importance of the lawyer’s duty under Rule 1.1(a) failure to provide competent representation to a client, Rule 1.4 Communication, and overall Rule 8.4(c) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation

New Hampshire: Lawyer Suspended Due to Conflicts of Interest

Facts: In this case the respondent, Donald L. Wyatt, Jr. is an attorney licensed to practice in New Hampshire. The Supreme Court Professional Conduct Committee filed a petition to have Wyatt disbarred. Wyatt was hired by David Stacy to serve as his personal counsel. David was a full-time employee of his mother and held her general power of attorney. Wyatt’s firm drafted a general power of attorney for Michel Brault to manage David’s affairs. Brault was a personal friend of Wyatt and the chief executive officer of former corporate client of Wyatt’s firm. In 2001, David’s mother “dismissed” David and cut off his support. Wyatt represented David in negotiations with his mother in order to get financial support from her.

A contract was agreed to in May of 2001 in which they agreed to set up mutual general releases. The agreement included, amongst other things, creating and funding of various trusts for David. It also stipulated that David file a petition for “voluntary conservatorship” requesting Brault to act as the conservator. The contract would terminate if, among other things, David terminated the conservatorship or dismissed Brault as conservator without cause. Wyatt explained the document in full. He gave him definitions and explained how David could opt out of the agreement and that this action could negate his mother’s financial obligations.

David asked Wyatt to continue as his personal attorney as well as representing his “conservatorship estate.” Wyatt explained that the conservator would decide if and when someone would serve as counsel. Wyatt did not discuss conflicts of interest. Wyatt explained and felt that David understood that Brault would be in charge of conservator issues and would have the final say if there were a disagreement between David and Brault.

The conservatorship was granted in June of 2001 and Brault was named conservator. Brault then asked Wyatt to represent the “Estate of David E. Stacy.” Wyatt advised Brault on the conservatorship and that Brault could not make personal choices for David.

Wyatt continued advising Brault and David about both personal and business matters concerning the conservatorship.

When there were complications concerning abdominal surgery that brought up possible mental health issues, Wyatt became concerned. Wyatt advised Brault and his wife Svetlana to ask for a limited guardianship in regards to medical issues. Even though Wyatt told them they should get another attorney for this issue, which they did, Wyatt continued giving them legal advice in pursuit of guardianship.

Throughout all of the issues with David and with Brault and Svetlana petitioning for conservatorship, all expenses, even the ones for Wyatt, were being billed to the conservatorship estate. This includes even when Brault and Svetlana had their own attorneys in both New Hampshire and Texas where the hospitalization of David took place.

Once the guardianship was granted, an attorney was appointed for David. Wyatt gave all materials and information about David to the attorney. The attorney met with David on April 24th. After that time Wyatt had nothing to do with David concerning the guardianship. David told his attorney that he was no longer happy with Wyatt and did not want him to represent him any more.

In spite of several more years and court dates dealing with these matters, Wyatt was still present and giving advice. Brault resigned from being David’s conservator. Finally, David’s sister, Deborah, filed to be David’s legal guardian. Deborah then filed a sworn statement in May of 2003 alleging professional misconduct on the part of Wyatt.

Issues: Did Wyatt violate the New Hampshire Rules of Professional Conduct 1.7 and 1.9, by representing two people at the same time concerning the same matter (conflict of interest)?

Was Wyatt charging illegal fees for services in violation of New Hampshire Rules of Professional Conduct 1.5?

Rule of Law: The New Hampshire Rules of Professional Conduct 1.7 states that a lawyer cannot represent a client if that relationship will “adversely affect” the relationship with the other client unless the client agrees to the relationship after being given all the information and possible consequences. Also, if the representation of the client would be “materially limited” by the case with the other client this would breach Rule 1.7 (b).

In Rule 1.9 Wyatt could not represent another person in the same matter as he represented the first person. In this case Wyatt represented David and the Brault in the guardianship matters.

Rule 1.5 has to do with charging illegal fees. The court contends that since Wyatt charged these fees while he was in violation of Rules 1.7 and 1.9 they were illegal.

Holding: The court held that Wyatt was indeed in violation of Rules 1.7, 1.9, and 1.5. There was a conflict of interest based on representing two people from the same case at the same time. Also, he also represented one client (Brault) once he no longer represented the other client (David). This is a conflict of interest because they are parties of the same case. They also said that Wyatt was charging fees at a time when he was in violation of Rules 1.7 and 1.9. The court held that Wyatt should have known or did know of the conflict of issue since at least twice two separate attorneys brought it to his attention.

The appropriate sanction for this case was held to be a two year suspension. One of the reasons was because there was no evidence of Wyatt not always working in the best interest of David.

Missouri Attorney Suspended for Improper Handling of IOLTA Accounts & Misconduct

In In re Coleman 295 S.W. 3rd 857 (Mo. 2009), the Missouri Supreme Court imposed a one year probationary period on a lawyer for improper use of IOLTA accounts funds and for improper filing a motion in court to enforce a settlement agreement.

The Missouri Supreme Court’s ordered a stayed suspension for filing a motion in court in an attempt to enforce a settlement agreement that violated Missouri Rule of Professional Conduct 4 – 1.2 and for writing a check on his IOLTA account to pay his fees and cost that violated Missouri Rule of Professional Conduct 4 – 1.5.

The lawyer improperly filed a motion to enforce a settlement agreement despite a client’s refusal to settle and for leaving his share of settlement proceeds in the IOLTA account and then would write checks to pay personal obligations directly out of the IOLTA account. The court held that the attorneys’ actions arose out of ignorance of the rules of professional conduct instead of an intention to violate the rules and that it is likely that his misconduct can be remedied by education and supervision.

This case teaches the importance of an attorneys’ duty to fully understand the rules of profession conduct within the state that they practice in. The proper use of IOLTA accounts in Rule 4 – 1.5 states that a lawyer is to “hold client and third party property separate from his own property”. Rule 4 – 1.2 requires a lawyer to “accept and adhere to the client’s decision whether to accept an offer of settlement in a matter”.

Mississippi: Lawyer disbarred for fee-splitting and referral-fee agreements to recruit clients and made false complaints to win tort claim

In Miss. Bar v. Arledge, 987 2d. 953 (Miss. 2009), the Mississippi Supreme Court permanently disbarred a lawyer and sentenced him to seventy-eight (78) months in prison for entering into fee-splitting and referral-fee agreement to recruit clients.

The Mississippi Supreme Court affirmed the trial court’s decision that the lawyer knowingly employed a person to solicit clients and to supply false claims in order to receive a settlement in a mass tort claim. The lawyer’s actions were found to be conspiracy pursuant to 18 U.S.C. §371, mail fraud pursuant to 18 U.S.C. 1341, and wire fraud pursuant to 18 U.S.C. in the United States District Court of the Southern District of Mississippi.

Due to the nature of the crimes charged against the lawyer, the Mississippi State Bar Association filed for disbarment pursuant to Rule 6(a), (d) of the Mississippi Rules of Discipline. The crimes for which the lawyer was convicted and sentenced are among those contemplated by Rule 6. Furthermore, the attorney has completed the appeal process, and his convictions have been affirmed by the State Supreme Court of Mississippi. In accordance to Rule 6, the attorney must be disbarred and stricken from the rolls of those licensed to practice law in the State of Mississippi.

This case teaches the importance of a lawyer’s duty to act lawfully. In addition, it tells us that a lawyer can be punished by the court and by the State Bar Association.

Maryland Lawyer Suspended for 60 Days For Professional Misconduct

In In re Tanko, 408 Md. 404 (M.D. 2009), the Maryland Appeals Court suspended a lawyer for 60 days for the professional misconduct of handling a clients expungement petition case. The petitioner also tried to prove miscount because the respondent applied for a duplicate license within four days of the police taking it away.

The Maryland Appeals Court affirmed the conclusions that the lawyer was negligent and misunderstood the case law and statutory law as it applied to his client, Mr. Short, Rule 3.3 and 8.4 [(d)]. As to the license, the Court finds that respondent did not violate the Rules of Professional Conduct. The Court finds the evidence to be in equal balance.

The lawyer knew he had to wait until three years has passed since his client’s disposition to file expungement petitions. Even though he knew of the waiting period, he filed one of the client’s petitions in Circuit Court, where it was denied, and two more petitions in District Court which were also denied. The lawyer admitted to the Commission that the clerks in Anne Arundel County’s Circuit Court refused to accept the expungement petition because it had not been three years since the entry of probation before judgment in this client’s matter.
This case teaches the importance of the lawyer’s duty under Rule 3.3, Candor Toward the Tribunal and 8.4[(d)], Misconduct, [by engaging] in conduct that is prejudicial to the administration of justice, due in part by his misunderstanding of the relevant case and statutory law.