The Office of disciplinary Counsel (ODC) filled formal charges against respondent, Kenner O. Miller Jr., an attorney licensed to practice law in the state of Louisiana. The ODC was presented three different cases in which the respondent violated multiple provisions of the Louisiana Rules of Professional
Count I The Boyed Matter
Issues
In December 2000, Baton Rouge attorney Drew Louviere asked the respondent to lead counsel in the representation of Allen Boyed. Mr. Boyed had been involved in two car accidents, one in Georgia and one in Louisiana. Respondent agreed to cooperate with a Georgia attorney as local counsel for the Georgia case, but neglectfully failed to do so. On February 12, 2002 respondent informed Mr. Louvier that “ I’ve got the Georgia matter taken care of, don’t worry”.
Latter respondent prepared a lawsuit as a Pro Se filling signed by Mr. Boyed, when in fact, Mr. Boyed had not signed such document. Respondent affixed Mr. Boyed’s signature with-out having power of attorney or any other proper legal written authority to sign his name. The respondent further more failed to inform the Cobb County Superior Court that the signature on the lawsuit was not that of Mr. Boyed’s. Respondent also failed to submit the necessary forms to have the suit assigned to a judge or served in a timely manner. On three separate occasions Mr. Boyed expressed his concern in wanting to know information on his Georgia case and respondent mislead his client by informing Mr. Boyed that a settlement package was being prepared . By September, the “settlement” package had still not been submitted. By this time Mr. Boyed asked for his file back and sought disciplinary action against the respondent.
Rule of Law
The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct:
Rule 1.3 (Failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 3.3 (candor toward the tribunal) 4.1 (truthfulness in statement to others), 8.4 (b) (commission of a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer),8.4 (c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (engaging in conduct prejudicial to the administration of justice).
Count II Heath Matter
Issues
In July 2001, Amy Heath retained the respondent to handle a medical malpractice claim, respondent attempted to locate an expert witness to testify on the case. Respondent briefly spoke with one other attorney and one physician who only reviewed a part of the medical records. On September 2003, respondent filed a petition for damages on Ms. Heath’s behalf with the Fourth Judicial District Court for the Perish of Ouachita. Thereafter, the respondent failed to respond to the defendants discovery reports. Motions for summary judgment on behalf of the defendants were granted in open court on April 5, 2005. A joint motion dismissing the remaining defendants, which the respondent signed was granted on July 24,2006. In May 2005, respondent mailed a copy of the April 2005 Judgment to Ms. Heath and informed her that he had been unable to locate an doctor to testify that the malpractice had in fact occurred. Subsequently Ms Heath requested her file, but the respondent did not send it to her until October 2006, more than a year after the summary judgment had been granted.
Rules of Law
The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct:
Rules of professional Conduct: Rules 1.3, 1.4, 1.16(d) (obligations upon termination of the representation),and 8.4(c) Respondent stipulated that he violated the Rules of Professional Conducts alleged.
Count III The Hampton Matter
Issues
Respondent has never been admitted to the practice of law in Texas. Nonetheless, on March 31,2004, Linda Hampton hired respondent to represent her in a personal injury matter, that had occurred on July 19, 2003 in Harris Count Texas. respondent corresponded with two Texas attorneys about undertaking Ms. Hampton’s representation. Afterwards respondent did not send a settlement demand or otherwise correspond with the apparent defendants in Ms. Hampton’s case. Ms. Hamptons accident occurred on July 19, 2003 and respondent listed it as occurring on August 19, 2003, furthermore respondent did not file the petition on Ms. Hamptons behalf. During the course of the case respondent failed to keep her properly and accurately advised of the status of the case. He failed to inform her that he had not timely filed the lawsuit on her behalf, had not been admitted Pro Vac Vice in her case, and had not submitted a motion for Pro Vac admission.
Rule of law
The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct:
Rules 1.3, 1.4, 1.16(d), 3.3 (a)(1) (a lawyers shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer), 5.5(a) (engaging in the unauthorized practice of law), 8.4(c) and 8.4(d).Respondent stipulated that he violated the Rules of Professional Conduct as alleged.
Holding
After hearing all of the evidence presented the committee determined based on the stipulated facts the respondent repeatedly failed to provide his clients with diligent representation and repeatedly provided them with inaccurate or incomplete information. The committee further found respondent knowingly deceived his clients and the Georgia court by signed Mr. Boyd’s name to the lawsuit without Mr. Boyd’s authorization. The committee also found respondent knowingly deceived the Texas court by post-dating Ms. Hampton’s accident date and misrepresenting his Pro Vac Vice status.
The committee further determined respondent caused injury or potential injury to his clients, and he knowingly engaged in deceitful conduct. The board found the following aggravating factors present: a pattern of misconduct, multiple offences, submission of false statements during the disciplinary process, and the substantial experience in the practice of law. The board rejected the mitigating factor of mental disability or chemical dependency due to respondent’s use of cocaine just prior to his January 28, 2009 deposition and his abandonment of the LAP (lawyers Assistance Project) program. After considering, we adopt the board’s recommendation and suspend respond from the practice of law for eighteen months,
Wednesday, June 2, 2010
Kentucky Lawyer Represents both Clients in an Opposing Action
In Webb v. Kentucky Bar Association, 2009-SC-000642-KB, the Kentucky Supreme Court imposed the sanction of a public reprimand, with conditions, against the attorney who knowingly represented both the plaintiff and defendant of a motor vehicle accident law suit. These additional conditions included directions to attend the Ethics and Professionalism Enhancement Program (EPEP) and pass the test, he was not able to apply for CLE credit of any kind for his attendance at the EPEP, and was required to pay costs in the amount of $34.99.
All members of the Kentucky Supreme Court affirm the decision with all members concurring that Mr. Webb violated SCR 3.130-1.7(b) which, states in part, “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation…” The Kentucky Supreme Court Rules (SCR) listed under the heading of Professional Conduct Rules cover SCR 3.130(1.1) through 1.130(8.4).
Mr. Webb admitted that he violated rules SCR 3.130-1.7(b), which deals with conflict of interest: current clients, when he chose to represent Tina Clauson, the driver of a vehicle involved in a car accident in July 2006. He also chose to represent Phillip Joseph, a passenger in the vehicle hit by Ms. Clauson. When Mr. Webb learned of the conflict, he informed Ms. Clauson that he would no longer be representing her, but he continued to represent Mr. Joseph against Ms. Clauson which is a violation of SCR 3.130-1.9(a), which addresses duties to former clients. Pursuant to SCR 3.380(2), the Kentucky degrees of discipline, Mr. Webb negotiated a sanction of a public reprimand.
This case teaches the importance of the lawyer’s duty under Kentucky SCR 3.130-1.7(b) and 3.130-1.9(a) and federal Rules 1.7 and 1.8 that state a lawyer shall not adversely affect a client(s) due to a conflict of interest in representation.
All members of the Kentucky Supreme Court affirm the decision with all members concurring that Mr. Webb violated SCR 3.130-1.7(b) which, states in part, “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation…” The Kentucky Supreme Court Rules (SCR) listed under the heading of Professional Conduct Rules cover SCR 3.130(1.1) through 1.130(8.4).
Mr. Webb admitted that he violated rules SCR 3.130-1.7(b), which deals with conflict of interest: current clients, when he chose to represent Tina Clauson, the driver of a vehicle involved in a car accident in July 2006. He also chose to represent Phillip Joseph, a passenger in the vehicle hit by Ms. Clauson. When Mr. Webb learned of the conflict, he informed Ms. Clauson that he would no longer be representing her, but he continued to represent Mr. Joseph against Ms. Clauson which is a violation of SCR 3.130-1.9(a), which addresses duties to former clients. Pursuant to SCR 3.380(2), the Kentucky degrees of discipline, Mr. Webb negotiated a sanction of a public reprimand.
This case teaches the importance of the lawyer’s duty under Kentucky SCR 3.130-1.7(b) and 3.130-1.9(a) and federal Rules 1.7 and 1.8 that state a lawyer shall not adversely affect a client(s) due to a conflict of interest in representation.
Trademark Protection for Color Schemes
In Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535 (11th Cir. 1985). This case is a debate questioning whether trademarks are legit, and approved by universities throughout the country. With individualizing their own, it has been determined that this is possible to do; however, it is important to follow the laws, criteria, and stipulations involved. Above information has been found under the link As I look at other reports upon Smack, it is clear they are in the wrong, following unprofessional, illegal activity. The following link went into detail of reasoning’s why detail should be registered. They are: registration creates a presumption that the color scheme is a valid trademark, nationwide scope of protections, and potential to recover attorney fees and obtain damages for infringement. US. Reg. No 3485025, US. Reg. No 3164353, and US. Reg. No 3398563.
Reading further into this case, I found it rather interesting as this is a crucial debate among not only Kentucky, but rather the majority of US colleges. The debate in this case is focused on the color schemes of each of the universities. The schools indicate that licensing has taken place in an effort to sell t-shirts, mugs, hats, etc; however, the crucial matter is that the colleges had not licensed trademarks in these areas, thus, making it illegal. This can be looked up under the Lanham Act. The parties filed cross motion for the judgment on the issues of liability for trademark infringement. Thus, the district court filed judgment stating the universities had acquired secondary trademarks. It had been determined the district court did not abuse its discretion. Therefore affirm denial of the attorney fees. Judgment Affirmed. The case no is 07-30580, c/w No. 07-30887
Reading further into this case, I found it rather interesting as this is a crucial debate among not only Kentucky, but rather the majority of US colleges. The debate in this case is focused on the color schemes of each of the universities. The schools indicate that licensing has taken place in an effort to sell t-shirts, mugs, hats, etc; however, the crucial matter is that the colleges had not licensed trademarks in these areas, thus, making it illegal. This can be looked up under the Lanham Act. The parties filed cross motion for the judgment on the issues of liability for trademark infringement. Thus, the district court filed judgment stating the universities had acquired secondary trademarks. It had been determined the district court did not abuse its discretion. Therefore affirm denial of the attorney fees. Judgment Affirmed. The case no is 07-30580, c/w No. 07-30887
Iowa: Lawyer Suspended for Engaging in a Sexual Relationship with a Client and Disclosing Privileged Information.
In In re Marzen, 779 N.W.2d757 (Iowa 2010), the Iowa Supreme Court suspended a lawyer for a period of not less than 6 months with no possibility of reinstatement during that time for disclosing client confidences, ethical violations and engaging in sexual acts with a client. Upon application for reinstatement, the attorney shall have the burden to prove he has not practiced during the suspension and meets all requirements for reinstatement provided in Iowa Court Rule 35.13
The Iowa State Supreme Court affirmed the grievance commissions finding that the lawyer violated Iowa R. Prof’l Conduct 32:1.6(a) and overturned the grievance commissions finding that the attorney did not engage in sexual relations with his client. The Iowa State Supreme Court found that the attorney violated Iowa R. Prof’l Conduct 32:8.1(j) by engaging in sexual acts at least 4 times with a client.
The lawyer disclosed privileged information regarding his client during a news interview of which the client states she never gave him permission to do. He used the interview to defame his client during his successful bid to become county attorney. The court found that a lawyer can only disclose confidential information in the appropriate forum and only to the extent necessary to offer protection. The revelation of information to the reporter was needed to defend the bid for county attorney not to defend against the allegations of the disciplinary hearing. See In re Bryan, 61P.3d at 658 (Kansas 2003).
The lawyer engaged in sexual relations with the client at least four times. The relations occurred twice at his home, once at her home and once at his office. Both sides presented conflicting testimony and witnesses. The court found that the lawyer’s sexual relationship with his client was particularly offensive to the notions of trustworthiness and professionalism because the attorney met the client as her court-appointed attorney during her involuntary mental health commitment hearing. He displayed an egocentric attitude that was apparent. See also In re Mcgrath, 713N.W.2d 682, 703-04 (Iowa 2006).
This case teaches the importance of the lawyer’s duty under rule 32:1.6(a) that states that a lawyer “shall not reveal information related to the representation of the client unless the client gives informed consent.” In addition, Iowa R. Prof. Conduct 32.8.1(j) states that “an attorney is prohibited from having sexual relations with a client when the client is not the lawyer’s spouse or when the sexual relationship did not predate the initiation of the attorney-client relationship.”
The Iowa State Supreme Court affirmed the grievance commissions finding that the lawyer violated Iowa R. Prof’l Conduct 32:1.6(a) and overturned the grievance commissions finding that the attorney did not engage in sexual relations with his client. The Iowa State Supreme Court found that the attorney violated Iowa R. Prof’l Conduct 32:8.1(j) by engaging in sexual acts at least 4 times with a client.
The lawyer disclosed privileged information regarding his client during a news interview of which the client states she never gave him permission to do. He used the interview to defame his client during his successful bid to become county attorney. The court found that a lawyer can only disclose confidential information in the appropriate forum and only to the extent necessary to offer protection. The revelation of information to the reporter was needed to defend the bid for county attorney not to defend against the allegations of the disciplinary hearing. See In re Bryan, 61P.3d at 658 (Kansas 2003).
The lawyer engaged in sexual relations with the client at least four times. The relations occurred twice at his home, once at her home and once at his office. Both sides presented conflicting testimony and witnesses. The court found that the lawyer’s sexual relationship with his client was particularly offensive to the notions of trustworthiness and professionalism because the attorney met the client as her court-appointed attorney during her involuntary mental health commitment hearing. He displayed an egocentric attitude that was apparent. See also In re Mcgrath, 713N.W.2d 682, 703-04 (Iowa 2006).
This case teaches the importance of the lawyer’s duty under rule 32:1.6(a) that states that a lawyer “shall not reveal information related to the representation of the client unless the client gives informed consent.” In addition, Iowa R. Prof. Conduct 32.8.1(j) states that “an attorney is prohibited from having sexual relations with a client when the client is not the lawyer’s spouse or when the sexual relationship did not predate the initiation of the attorney-client relationship.”
Illinois: Attorney’s Employment Ad Leads to Ethics Violation
In Illinois Attorney Registration and Disciplinary Commission v. Samir Zia Chowhan, Commission No.09 CH 53, a lawyer was disciplined for violating Rule 8.1 (a)(1), making a false statement, and Rule 8.4(a)(4), conduct involving dishonesty, fraud, deceit or misrepresentation, of the Illinois Rules of Professional Conduct and Illinois Supreme Court Rule 770, conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute; among other violations.
The Administrator of the Attorney Registration and Disciplinary Commission had requested a review of this case before a Hearing Board.
Attorney Chowhan submitted an employment advertisement with the website CraigsList. The advertisement was explaining a legal secretary position that required paralegal and secretarial skills with on the job training. The advertisement asked for a resume, pictures, and interestingly, also asked for measurements. Ms. Dickenson responded to the advertisement with her resume, pictures, and physical description. Chowhan later responded that the position would require her to “have sexual interaction with me and my partner, sometimes together sometimes separate.” He also wrote that she would need to dress provocatively. He went on to say that during the interview “you’ll be required to perform for us sexually.”
Ms. Dickenson reported this to the Administrator of the Illinois Attorney Registration and Disciplinary Commission, which in turn started an investigation. Chowhan would go on to deny posting the job advertisement and claimed that someone else had maliciously posted the advertisement. Later, he would admit to the posting.
This case is a peculiar example of how a lawyer allows the power of his position to pressure and intimidate others. The case demonstrates the importance of being vigilant in maintaining the integrity of the legal process and system to ensure the honor of our profession and not allowing our own egos diminish our devotion to law.
The Administrator of the Attorney Registration and Disciplinary Commission had requested a review of this case before a Hearing Board.
Attorney Chowhan submitted an employment advertisement with the website CraigsList. The advertisement was explaining a legal secretary position that required paralegal and secretarial skills with on the job training. The advertisement asked for a resume, pictures, and interestingly, also asked for measurements. Ms. Dickenson responded to the advertisement with her resume, pictures, and physical description. Chowhan later responded that the position would require her to “have sexual interaction with me and my partner, sometimes together sometimes separate.” He also wrote that she would need to dress provocatively. He went on to say that during the interview “you’ll be required to perform for us sexually.”
Ms. Dickenson reported this to the Administrator of the Illinois Attorney Registration and Disciplinary Commission, which in turn started an investigation. Chowhan would go on to deny posting the job advertisement and claimed that someone else had maliciously posted the advertisement. Later, he would admit to the posting.
This case is a peculiar example of how a lawyer allows the power of his position to pressure and intimidate others. The case demonstrates the importance of being vigilant in maintaining the integrity of the legal process and system to ensure the honor of our profession and not allowing our own egos diminish our devotion to law.
Idaho: Severson, represented by conflict free counsel?
Case Name: State of Idaho, Plaintiff, v. Larry M. Severson, defendant
Citation: 215 P. 3d 414-Idaho: Supreme Court, Boise 2009
Facts: Mary and Larry Severson were married and resided in Idaho. Mary passed away from being poisoned. Severson was indicted on one count of first degree murder and one count of poisoning food and/or medicine. The Elmore County Public Defender’s Office was appointed to represent Severson at trial. Severson argued that the appointment of Mr. Franchiseur was a conflict of interest and was operating under conflict of interest because Terry Ratliff, another public defender, who works in the same office of Mr. Franchiseur, had represented Mary’s mother in a civil suit that was directly related to his criminal case. Trial court concluded Mr. Ratliff’s conflict did not preclude Mr. Franchiseur from representing Severson.
Issue: Was Severson denied his right to be represented by conflict free counsel?
Rule of Law: State v. Nath, A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. Wood v. Georgia The amendment has been interpreted to include the right to be represented by conflict-free counsel. Smith v. Lockhart In order to satisfy the inquiry requirement, a trial court’s examination of the potential conflict must be thorough and searching and should be conducted on the record.
Under the Idaho Rules of Professional Conduct Rule 1.10, the court reasoned that because the Elmore County Public Defender’s Office was not a “firm,” Mr. Ratliff’s conflict should not be imputed to Mr. Franchiseur. There is no evidence that Mr. Franchiseur and Mr. Ratliff communicated about Severson’s case or that they shared information. As a precaution the court directed to completely screen Mr. Ratliff from involvement in any activities or information relating to Severson’s case.
The rules define the term, “firm” as “lawyers in a law partnership, Professional Corporation, sole proprietorship or other association authorized to practice law; or lawyers unemployed in a legal services organization or the legal department of a corporation or other organization.”
Application of law to facts: The state of Idaho argues that even if the trial court did not make a proper inquiry into the conflict, Severson’s challenge should fail because he has not established that the conflict adversely affected his lawyer’s performance or otherwise resulted in prejudice.
Severson argues, the district decision should be reversed because the court failed to conduct an adequate inquiry into the potential conflict; and erred in concluding that the Public Defender’s Office did not make a conflict of interest.
Severson was provided with an opportunity to be heard.
Conclusion: There is no evidence in the record that would support the conclusion that Mr. Ratliff’s conflict was likely to result in prejudice. Severson was not deprived of his right to be represented by conflict-free counsel.
This case teaches us the lawyer’s duty under the Rules of Professional Conduct: Rule 1.7 conflict of interest: states “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” In addition to that Idaho Rules of Professional Conduct judge whether the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.
Citation: 215 P. 3d 414-Idaho: Supreme Court, Boise 2009
Facts: Mary and Larry Severson were married and resided in Idaho. Mary passed away from being poisoned. Severson was indicted on one count of first degree murder and one count of poisoning food and/or medicine. The Elmore County Public Defender’s Office was appointed to represent Severson at trial. Severson argued that the appointment of Mr. Franchiseur was a conflict of interest and was operating under conflict of interest because Terry Ratliff, another public defender, who works in the same office of Mr. Franchiseur, had represented Mary’s mother in a civil suit that was directly related to his criminal case. Trial court concluded Mr. Ratliff’s conflict did not preclude Mr. Franchiseur from representing Severson.
Issue: Was Severson denied his right to be represented by conflict free counsel?
Rule of Law: State v. Nath, A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. Wood v. Georgia The amendment has been interpreted to include the right to be represented by conflict-free counsel. Smith v. Lockhart In order to satisfy the inquiry requirement, a trial court’s examination of the potential conflict must be thorough and searching and should be conducted on the record.
Under the Idaho Rules of Professional Conduct Rule 1.10, the court reasoned that because the Elmore County Public Defender’s Office was not a “firm,” Mr. Ratliff’s conflict should not be imputed to Mr. Franchiseur. There is no evidence that Mr. Franchiseur and Mr. Ratliff communicated about Severson’s case or that they shared information. As a precaution the court directed to completely screen Mr. Ratliff from involvement in any activities or information relating to Severson’s case.
The rules define the term, “firm” as “lawyers in a law partnership, Professional Corporation, sole proprietorship or other association authorized to practice law; or lawyers unemployed in a legal services organization or the legal department of a corporation or other organization.”
Application of law to facts: The state of Idaho argues that even if the trial court did not make a proper inquiry into the conflict, Severson’s challenge should fail because he has not established that the conflict adversely affected his lawyer’s performance or otherwise resulted in prejudice.
Severson argues, the district decision should be reversed because the court failed to conduct an adequate inquiry into the potential conflict; and erred in concluding that the Public Defender’s Office did not make a conflict of interest.
Severson was provided with an opportunity to be heard.
Conclusion: There is no evidence in the record that would support the conclusion that Mr. Ratliff’s conflict was likely to result in prejudice. Severson was not deprived of his right to be represented by conflict-free counsel.
This case teaches us the lawyer’s duty under the Rules of Professional Conduct: Rule 1.7 conflict of interest: states “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” In addition to that Idaho Rules of Professional Conduct judge whether the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.
Hawaii Lawyer Breached Duty to Act in a Diligent Manner when Representing a Client
In the case Denham v. Hawaiian Electric Company (Hawaii 2009), the Hawaii District Court awarded damages to the defendant, Hawaiian Electric Company for the lack of diligence by the attorney for the Plaintiff, Denham. The counsel for Denham failed to act with a duty of diligence in keeping up with depositions throughout the case. The individual’s failure to act resulted in recklessness and gross negligence.
The Hawaiian District Court confirmed that the lawyer knowingly allowed the discovery deadline to pass and therefore failed to act with diligence and was in violation of the Hawaii Rules of Professional Conduct Rule 1.3.
The lawyer not only failed to act with diligence one time, but on several occasions. The lawyer waited six months until after the initial discovery deadline passed before he requested depositions. After the judge granted an extension, the lawyer knowingly allowed the discovery deadline to pass and after another two months, he filed a motion requesting to take depositions due to an excessive workload. The lawyer violated Hawaii Professional Conduct Rule 1.3 and therefore the defendant was awarded attorney fees and costs. See also Patelco Credit Union v. Sahni, 262 F.3d 897 (9th Cir. 2001).
This case teaches the importance of the lawyer’s duty to act with diligence under the Hawaii Professional Conduct Rule 1.3 which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
The Hawaiian District Court confirmed that the lawyer knowingly allowed the discovery deadline to pass and therefore failed to act with diligence and was in violation of the Hawaii Rules of Professional Conduct Rule 1.3.
The lawyer not only failed to act with diligence one time, but on several occasions. The lawyer waited six months until after the initial discovery deadline passed before he requested depositions. After the judge granted an extension, the lawyer knowingly allowed the discovery deadline to pass and after another two months, he filed a motion requesting to take depositions due to an excessive workload. The lawyer violated Hawaii Professional Conduct Rule 1.3 and therefore the defendant was awarded attorney fees and costs. See also Patelco Credit Union v. Sahni, 262 F.3d 897 (9th Cir. 2001).
This case teaches the importance of the lawyer’s duty to act with diligence under the Hawaii Professional Conduct Rule 1.3 which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Hawaii: Lawyer Sued for Breach of Fiduciary Duties
In re Fisher v. Grove Farm Co., 2009 Haw. App. LEXIS 796 (Haw. Ct. App., Dec. 29, 2009), appellant shareholders sued for the breach of fiduciary duties in the sale of a farm. The attorney represented both the shareholders the buyer in the transaction. In this case the buyer happened to be the attorney’s son.
The Circuit Court of the Fifth Circuit, Hawaii granted the motion to dismiss the suit with prejudice and awarded that the attorney be paid costs. The Intermediate Court of Appeals, Hawaii, held that the attorney did breach fiduciary duties because the farm did not retain the attorney to benefit the shareholders. Since the shareholders had no attorney-client relationship with the attorney, they were not able to pursue their claims of constructive and securities fraud. Since this was the case, they were unable to collect punitive damages and unable to recover and attorney’s fees. Haw. Rev. Stat. § 607-14 (Supp. 2008). The original judgment was affirmed.
In this case, the attorney may have acted unethically by selling the farm to his son, however, the shareholders had not retained this attorney themselves and therefore had no relationship giving them the grounds to sue. The attorney’s relationship was with the farm only and since the farm did not bring case against the attorney, there was no case.
The Circuit Court of the Fifth Circuit, Hawaii granted the motion to dismiss the suit with prejudice and awarded that the attorney be paid costs. The Intermediate Court of Appeals, Hawaii, held that the attorney did breach fiduciary duties because the farm did not retain the attorney to benefit the shareholders. Since the shareholders had no attorney-client relationship with the attorney, they were not able to pursue their claims of constructive and securities fraud. Since this was the case, they were unable to collect punitive damages and unable to recover and attorney’s fees. Haw. Rev. Stat. § 607-14 (Supp. 2008). The original judgment was affirmed.
In this case, the attorney may have acted unethically by selling the farm to his son, however, the shareholders had not retained this attorney themselves and therefore had no relationship giving them the grounds to sue. The attorney’s relationship was with the farm only and since the farm did not bring case against the attorney, there was no case.
Georgia Attorney Disbarred for Mismanagement of Funds, Misconduct
In In re Ballew, S10Y0213 (Ga. 2010), the Supreme Court of Georgia disbarred an attorney for failure to remit a clients funds and forgery legal documents.
The Georgia Supreme Court affirmed the Report and Recommendation of the Review Panel, which concluded that Ballew violated GA R. Proff. Conduct 1.8 (e) when he advanced money to the client prior to receiving any settlement funds, 1.15 (I) as Ballew took advantage of his position of trust as fiduciary for the client’s settlement funds, 1.15 (II) as Bellew failed to remit settlement funds to the client or place the funds in an interest baring IOLTA account and 8.4 (a) (4) when Ballew forged his clients signature on legal documents.
The Georgia Supreme Court has in the past disbarred attorneys for violating Rules 1.15 (I), 1.15 (II) and 8.4 (a) (4), see In the Matter of McKenna, 282 Ga. 469 (651 SE2d 80) (2007) and In the Matter of Ballard, 280 Ga. 504 (629 SE2d 809) (2006), and for settling claims without client authority and forging clients’ names on settlement documents, see In the Matter of King, 278 Ga. 384 (602 SE2d 636) (2004).
This case teaches the importance an attorney’s duty to a client of responsible accounting management. Rule 1.15 (I) provides "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation”. Rule 1.15 (II) sub. C states, “All clients’ funds shall be placed in either an interest-bearing account with the interest being paid to the client or an interest-bearing (IOLTA) account with the interest being paid to the Georgia Bar Foundation”. In addition, this case illustrates a lawyer’s duty under Rule 8.4 (a) (4) stat an attorney shall not “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation”.
The Georgia Supreme Court affirmed the Report and Recommendation of the Review Panel, which concluded that Ballew violated GA R. Proff. Conduct 1.8 (e) when he advanced money to the client prior to receiving any settlement funds, 1.15 (I) as Ballew took advantage of his position of trust as fiduciary for the client’s settlement funds, 1.15 (II) as Bellew failed to remit settlement funds to the client or place the funds in an interest baring IOLTA account and 8.4 (a) (4) when Ballew forged his clients signature on legal documents.
The Georgia Supreme Court has in the past disbarred attorneys for violating Rules 1.15 (I), 1.15 (II) and 8.4 (a) (4), see In the Matter of McKenna, 282 Ga. 469 (651 SE2d 80) (2007) and In the Matter of Ballard, 280 Ga. 504 (629 SE2d 809) (2006), and for settling claims without client authority and forging clients’ names on settlement documents, see In the Matter of King, 278 Ga. 384 (602 SE2d 636) (2004).
This case teaches the importance an attorney’s duty to a client of responsible accounting management. Rule 1.15 (I) provides "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation”. Rule 1.15 (II) sub. C states, “All clients’ funds shall be placed in either an interest-bearing account with the interest being paid to the client or an interest-bearing (IOLTA) account with the interest being paid to the Georgia Bar Foundation”. In addition, this case illustrates a lawyer’s duty under Rule 8.4 (a) (4) stat an attorney shall not “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation”.
Georgia Lawyer Disbarred for Professional Misconduct
In In re Moore, 684 S.E,2d 71 (Ga 2009), the Supreme Court of Georgia disbarred a lawyer for professional misconduct for knowingly selling a house for more than what was listed on the contract and not releasing a buyer’s money or paying closing fees in a second case.
The Supreme Court of Georgia affirmed the two disciplinary actions against the attorney and agreed the attorney should be disbarred for violating Ga. St. Bar R. 4-102(d):1.3, 1.4, 1.15(I) and (II), 1.16, 8.4, and 9.3.
The attorney also failed to file a timely answer or notice of rejection of discipline, causing him to be in default of the violations charged, The court ruled that an attorney is obligated to give effective representation and that this attorney misappropriated the clients funds in their trust account and did not respond to the State Bar about insufficient funds in the trust account. See also In re Burke, 286 Ga. 729; 690 S.E.2d 854 (Ga 2010).
This case teaches us the importance of a lawyer’s responsibilities under Rule 8.4(a)(4)(5) that states a lawyer must not “engage in professional misconduct involving dishonesty, fraud, deceit, or misrepresentation; and who has failed to pay any final judgment against such lawyer for money collected by him within ten days”. In addition, Ga R. Prof. Conduct 4-102(d):1.15(II) states “provides that all funds held by a lawyer for a client shall be deposited in and administered from a trust account; a lawyer shall not withdraw funds from such trust account for the lawyer’s personal use except earned attorney’s fee”.
The Supreme Court of Georgia affirmed the two disciplinary actions against the attorney and agreed the attorney should be disbarred for violating Ga. St. Bar R. 4-102(d):1.3, 1.4, 1.15(I) and (II), 1.16, 8.4, and 9.3.
The attorney also failed to file a timely answer or notice of rejection of discipline, causing him to be in default of the violations charged, The court ruled that an attorney is obligated to give effective representation and that this attorney misappropriated the clients funds in their trust account and did not respond to the State Bar about insufficient funds in the trust account. See also In re Burke, 286 Ga. 729; 690 S.E.2d 854 (Ga 2010).
This case teaches us the importance of a lawyer’s responsibilities under Rule 8.4(a)(4)(5) that states a lawyer must not “engage in professional misconduct involving dishonesty, fraud, deceit, or misrepresentation; and who has failed to pay any final judgment against such lawyer for money collected by him within ten days”. In addition, Ga R. Prof. Conduct 4-102(d):1.15(II) states “provides that all funds held by a lawyer for a client shall be deposited in and administered from a trust account; a lawyer shall not withdraw funds from such trust account for the lawyer’s personal use except earned attorney’s fee”.
District of Columbia: Lawyer Violates Rules of Professional Conduct
In re Stillwell, 980 A.2d 430 (D.C.2009), the District of Columbia Court suspended Garland H. Stillwell for sixty days, with no requirement of indicating the ability to practice law prior to reinstatement, after multiple violations of the Rules of Professional Conduct.
Stillwell admits to violating the District of Columbia Rules of Professional Conduct, specifically Rules 8.4 (c) and 1.7 (b)(1). The acts of violating these specified rules included inaccurate representation of status at a law firm, false representation, improper charges of personal expenses upon others, working outside the law firm where he was employed and of which the company prohibited, and he took a position on behalf of clients that was unfavorable to a position taken by a client of his firm without consent of all of the parties.
The Hearing Committee Number Eleven of the Board on Professional Responsibility received the facts in the petition, in addition to Stillwell’s own affidavit, and admittance that he did in fact violate the Rules 8.4 (c) and 1.7 (b)(1). Stillwell also made a point to state that he was not coerced into the agreement with the Bar Counsel. He acknowledged that he would have to comply with the requirements put in place by the D.C. Bar R. XI, §14, and Board Rule 9.9. The Committee’s decision was for Stillwell to be suspended from practicing law for sixty days, with no additional requirements prior to reinstatement.
Stillwell admits to violating the District of Columbia Rules of Professional Conduct, specifically Rules 8.4 (c) and 1.7 (b)(1). The acts of violating these specified rules included inaccurate representation of status at a law firm, false representation, improper charges of personal expenses upon others, working outside the law firm where he was employed and of which the company prohibited, and he took a position on behalf of clients that was unfavorable to a position taken by a client of his firm without consent of all of the parties.
The Hearing Committee Number Eleven of the Board on Professional Responsibility received the facts in the petition, in addition to Stillwell’s own affidavit, and admittance that he did in fact violate the Rules 8.4 (c) and 1.7 (b)(1). Stillwell also made a point to state that he was not coerced into the agreement with the Bar Counsel. He acknowledged that he would have to comply with the requirements put in place by the D.C. Bar R. XI, §14, and Board Rule 9.9. The Committee’s decision was for Stillwell to be suspended from practicing law for sixty days, with no additional requirements prior to reinstatement.
Sokol Holdings, Inc. v. Dorsey & Whitney
Sokol Holdings, Inc. was served with a subpoena by Michael Wilson and Partners, Ltd. (“MWP”). MWP alleged that Sokol Holdings, Inc. was a client of theirs that had been stolen by former MWP lawyers and the fees Sokol paid went to these former lawyers. Under 28 U.S.C. § 1782, Sokol was able to retain Dorsey & Whitney, a Denver, Colorado based law firm, to represent their company’s interests regarding the subpoenas. This representation expanded to include proceedings in Colorado and foreign jurisdictions.
At some point in 2007 or 2008, Sokol decided to stop paying the bills due (around four million dollars) to Dorsey & Whitney based on their alleged statement that the bills were excessive. Sokol brought the case to the Delaware Court of Chancery where they were met with a counterclaim from Dorsey & Whitney for the payment of the bills due. When the case was pending, Sokol decided to challenge whether the Court of Chancery had subject matter jurisdiction to try the case – however, when this came up in court the defendants claimed the court had jurisdiction while the plaintiffs did not take a stand on their own challenge.
The Chancery Court determined they did not have jurisdiction, even with the defendants arguing the plaintiff’s breach of fiduciary duty invoked the Court’s jurisdiction.
Issue(s): Did Dorsey & Whitney, as attorneys, have a fiduciary relationship with Sokol Holdings? If so, does the Chancery Court of Delaware have jurisdiction to hear this case?
Rule of law: An attorney is not a fiduciary party unless the attorney goes beyond providing legal services and has actual control of a party’s property. The Delaware Chancery Court does not have jurisdiction because of the lack of a fiduciary relationship.
Holding: It is a client’s responsibility to be aware of participation in an attorney-client relationship. And Sokol Holdings trying to delay the court proceedings did not bode well for their case. This case was transferred to the Delaware Superior Court and was held as a bench trial because the court held the plaintiff waived their right to a jury trial by bringing action before the Chancery Court.
At some point in 2007 or 2008, Sokol decided to stop paying the bills due (around four million dollars) to Dorsey & Whitney based on their alleged statement that the bills were excessive. Sokol brought the case to the Delaware Court of Chancery where they were met with a counterclaim from Dorsey & Whitney for the payment of the bills due. When the case was pending, Sokol decided to challenge whether the Court of Chancery had subject matter jurisdiction to try the case – however, when this came up in court the defendants claimed the court had jurisdiction while the plaintiffs did not take a stand on their own challenge.
The Chancery Court determined they did not have jurisdiction, even with the defendants arguing the plaintiff’s breach of fiduciary duty invoked the Court’s jurisdiction.
Issue(s): Did Dorsey & Whitney, as attorneys, have a fiduciary relationship with Sokol Holdings? If so, does the Chancery Court of Delaware have jurisdiction to hear this case?
Rule of law: An attorney is not a fiduciary party unless the attorney goes beyond providing legal services and has actual control of a party’s property. The Delaware Chancery Court does not have jurisdiction because of the lack of a fiduciary relationship.
Holding: It is a client’s responsibility to be aware of participation in an attorney-client relationship. And Sokol Holdings trying to delay the court proceedings did not bode well for their case. This case was transferred to the Delaware Superior Court and was held as a bench trial because the court held the plaintiff waived their right to a jury trial by bringing action before the Chancery Court.
Minnesota: Lawyer Publicly Reprimanded and Placed on Probation for Receiving Advance Payments With No Written Fee Agreement
In In re Eichhorn-Hicks, 767 N.W.2d 20 (Minn. 2009), the Minnesota Supreme Court publicly reprimanded and placed an attorney on probation for two years for receiving advance fee payments on two occasions in a client matter in which there was no written fee agreement signed by the client. The lawyer also did not deposit the funds into a trust account and during the investigation failed to disclose the full amount of payments received for representation of a client. These actions violated Minn. R. Prof. Conduct 1.5(b), 1.15(c)(5), and 8.1(b).
The Minnesota Supreme Court accepted the recommended disposition of Director of the Office of Lawyers Professional Responsibility with terms that include lawyer’s avoidance of these violations in the future and cooperation with authorities releasing personal and compliance information.
Compelled by Rule 1.5(b), a lawyer must communicate ““the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible…”. Additionally, Rule 1.15(c)(5) states that “unless the lawyer and the client have entered into a written agreement” a lawyer must ”deposit all fees in advance of the legal services being performed into a trust account … “. In violation of Rule 8.1(b) the lawyer also failed “to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter…”.
The Minnesota Supreme Court accepted the recommended disposition of Director of the Office of Lawyers Professional Responsibility with terms that include lawyer’s avoidance of these violations in the future and cooperation with authorities releasing personal and compliance information.
Compelled by Rule 1.5(b), a lawyer must communicate ““the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible…”. Additionally, Rule 1.15(c)(5) states that “unless the lawyer and the client have entered into a written agreement” a lawyer must ”deposit all fees in advance of the legal services being performed into a trust account … “. In violation of Rule 8.1(b) the lawyer also failed “to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter…”.
Connecticut Attorney Appeals Three Grievances by Statewide Grievance Committee
In Francis Miniter v. Statewide Grievance Committee 2009 Conn. Super. Lexis 1540, the Superior Court of Connecticut, Judicial District of Hartford decided in three cases filed with the Connecticut Statewide Grievance Committee against Attorney Francis Miniter. In all three cases the Statewide Grievance Committee found that the alleged violations had been proven.
Grievances alleged that Miniter violated the state’s Rules of Professional Conduct. In the first case (Docket No. CV 07 4029199) Miniter was reprimanded for violating Rules 1.3, 1.4 and 1.5. In this grievance, the court found by clear and convincing evidence that Miniter failed to provide the complainant with a written fee agreement, accepted $1,500 to represent her, and then fail to appear on the scheduled date. He also failed to return her calls after her case was dismissed. Miniter appealed, asserting that his rights to due process were violated.
The appellant argued that the Grievance Committee failed to grant him a continuance because Miniter was appearing to argue another case. He was not granted the continuance due to his not following the prescribed rules for requesting the continuance. Motions for the continuance require a request form JD-GC-17 to be filed at least seven days prior to the date of the hearing. Not only did he fail to file the needed document, but his motion for continuance was filed only the day preceding the hearing. Based on Miniter’s failure to comply with the rules for a continuance, the Statewide Grievance found that there was no violation of due process.
The Court noted: “While it is clear that the appellant has a vested property interest entitling him to due process, this court’s difficulty with the appellant’s claim of prejudice is the extent to which it was self-imposed. More troubling still is the fact that the underlying allegations before the grievance committee related to his client’s claims that he failed to act with reasonable diligence and promptness in his dealing with her, in violation of Rule 1.3, and her claims that he failed to communicate with her, in violation of Rule 4.1. In this context, his failure to file a timely motion for continuance and to comply with reasonable requests for information so that the grievance committee can fairly assess his request for continuance is not de minimis.”
In the second case (Docket No. CV 07 4030204), the Grievance Committee found by clear and convincing evidence that Miniter violated rule 8.1(2) of the Professional Rules of Conduct and Practice Book §2-32(a)(1). The matter was reported to the Grievance Committee by Bank of America when the appellant’s client funds account was overdrawn. When contacted by the Committee about the overdraft, Miniter initially responded but failed to respond to multiple attempts by the Committee to follow up. The appellant stated that he was involved in an extensive trial and did not receive further communications. There is no evidence that the notifications were mailed to an incorrect address.
The appellant asserts that it wasn’t a lawful demand and that it was beyond the scope of reasonable inquiry, but there was no documentation for the assertion. The court rejected this claim due to an absence of authority for it.
The appellant further asserted that the evidence didn’t show that the letter was mailed, relying on Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 804 A.2d 1027 (2002). He claimed that the Committee wasn’t entitled to make the assumption that the appellant had notice. The court noted, “It is clear from Daniels that these self-serving assertions are simply not enough to overcome the presumption that he received this correspondence.” The Committee concluded that he had violated the rules by failing to respond to a grievance complaint.
In the third case (Docket No. CV 08 4037292), the Committee issued a reprimand by clear and convincing evidence of a violation of Rule1.4 of the Connecticut Rules of Professional Conduct. The appellant received $3,000 of a $5,000 retainer agreement in which the client agreed that the attorney would receive compensation based on expenses and time spent on the case, in the event that the client terminated the litigation. The client decided not to pursue litigation and sent a letter to the attorney to that effect and requesting that his funds be returned. Miniter failed to respond to the correspondence and multiple phone calls from his client. The client filed a grievance at which time Miniter prepared a statement of account and refunded $1,230.
Miniter answered by saying that he believed that his staff had returned the complainant’s phone call to discuss the matter. The client denies receiving any such call. Miniter also noted that he was having computer problems at the time and was unable to provide a final accounting.
The appellant claims his due process rights were violated because the reviewing committee took into account other proceedings against Miniter. He also claimed that he was denied the right to present his secretary as a witness at the proceedings.
On his first claim in this matter, the reviewing committee was notified of other grievances because under Practice Book §2-47(d) an action involving a respondent with at least three disciplinary actions within five years triggers a presentment. The court stated that “Given this authority, which the appellant fails to address, this court is not persuaded by claims that record of his grievances were improperly before the committee.”
On Miniter’s second claim, it was noted that the committee had even shown an interest that Miniter present his secretary to determine the need for further testimony. The court record showed that Miniter made no attempt to submit evidence or testimony from his secretary.
In conclusion, the Court rejected the appeal of all three cases and affirmed the decision of the reviewing committee of the Connecticut Statewide Grievance Committee. It is interesting to note that the same attorney was involved in other similar complaints over a period of years prior to this appeal for complaints 06-0577, 06-0323, and 07-0484. The other complaints were as follows: 09-0040 Davis, Moore, Ayers & Weaver v. Miniter, 08-0154 Wright v. Miniter, 08-0768 Gale v. Miniter, 06-0262 Town of Hartford v. Miniter, and 05-0317A Diana DeGiacomo-Canellas v. Miniter.
Grievances alleged that Miniter violated the state’s Rules of Professional Conduct. In the first case (Docket No. CV 07 4029199) Miniter was reprimanded for violating Rules 1.3, 1.4 and 1.5. In this grievance, the court found by clear and convincing evidence that Miniter failed to provide the complainant with a written fee agreement, accepted $1,500 to represent her, and then fail to appear on the scheduled date. He also failed to return her calls after her case was dismissed. Miniter appealed, asserting that his rights to due process were violated.
The appellant argued that the Grievance Committee failed to grant him a continuance because Miniter was appearing to argue another case. He was not granted the continuance due to his not following the prescribed rules for requesting the continuance. Motions for the continuance require a request form JD-GC-17 to be filed at least seven days prior to the date of the hearing. Not only did he fail to file the needed document, but his motion for continuance was filed only the day preceding the hearing. Based on Miniter’s failure to comply with the rules for a continuance, the Statewide Grievance found that there was no violation of due process.
The Court noted: “While it is clear that the appellant has a vested property interest entitling him to due process, this court’s difficulty with the appellant’s claim of prejudice is the extent to which it was self-imposed. More troubling still is the fact that the underlying allegations before the grievance committee related to his client’s claims that he failed to act with reasonable diligence and promptness in his dealing with her, in violation of Rule 1.3, and her claims that he failed to communicate with her, in violation of Rule 4.1. In this context, his failure to file a timely motion for continuance and to comply with reasonable requests for information so that the grievance committee can fairly assess his request for continuance is not de minimis.”
In the second case (Docket No. CV 07 4030204), the Grievance Committee found by clear and convincing evidence that Miniter violated rule 8.1(2) of the Professional Rules of Conduct and Practice Book §2-32(a)(1). The matter was reported to the Grievance Committee by Bank of America when the appellant’s client funds account was overdrawn. When contacted by the Committee about the overdraft, Miniter initially responded but failed to respond to multiple attempts by the Committee to follow up. The appellant stated that he was involved in an extensive trial and did not receive further communications. There is no evidence that the notifications were mailed to an incorrect address.
The appellant asserts that it wasn’t a lawful demand and that it was beyond the scope of reasonable inquiry, but there was no documentation for the assertion. The court rejected this claim due to an absence of authority for it.
The appellant further asserted that the evidence didn’t show that the letter was mailed, relying on Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 804 A.2d 1027 (2002). He claimed that the Committee wasn’t entitled to make the assumption that the appellant had notice. The court noted, “It is clear from Daniels that these self-serving assertions are simply not enough to overcome the presumption that he received this correspondence.” The Committee concluded that he had violated the rules by failing to respond to a grievance complaint.
In the third case (Docket No. CV 08 4037292), the Committee issued a reprimand by clear and convincing evidence of a violation of Rule1.4 of the Connecticut Rules of Professional Conduct. The appellant received $3,000 of a $5,000 retainer agreement in which the client agreed that the attorney would receive compensation based on expenses and time spent on the case, in the event that the client terminated the litigation. The client decided not to pursue litigation and sent a letter to the attorney to that effect and requesting that his funds be returned. Miniter failed to respond to the correspondence and multiple phone calls from his client. The client filed a grievance at which time Miniter prepared a statement of account and refunded $1,230.
Miniter answered by saying that he believed that his staff had returned the complainant’s phone call to discuss the matter. The client denies receiving any such call. Miniter also noted that he was having computer problems at the time and was unable to provide a final accounting.
The appellant claims his due process rights were violated because the reviewing committee took into account other proceedings against Miniter. He also claimed that he was denied the right to present his secretary as a witness at the proceedings.
On his first claim in this matter, the reviewing committee was notified of other grievances because under Practice Book §2-47(d) an action involving a respondent with at least three disciplinary actions within five years triggers a presentment. The court stated that “Given this authority, which the appellant fails to address, this court is not persuaded by claims that record of his grievances were improperly before the committee.”
On Miniter’s second claim, it was noted that the committee had even shown an interest that Miniter present his secretary to determine the need for further testimony. The court record showed that Miniter made no attempt to submit evidence or testimony from his secretary.
In conclusion, the Court rejected the appeal of all three cases and affirmed the decision of the reviewing committee of the Connecticut Statewide Grievance Committee. It is interesting to note that the same attorney was involved in other similar complaints over a period of years prior to this appeal for complaints 06-0577, 06-0323, and 07-0484. The other complaints were as follows: 09-0040 Davis, Moore, Ayers & Weaver v. Miniter, 08-0154 Wright v. Miniter, 08-0768 Gale v. Miniter, 06-0262 Town of Hartford v. Miniter, and 05-0317A Diana DeGiacomo-Canellas v. Miniter.
Connecticut Attorney Violates Rules of Professional Conduct before Tribunal
John F. O’brien violated rules 1.2, 3.1, 3.3, & 8.4 of the Rules of Professional Conduct. He failed to counsel properly, failed to motion for investigation without good faith belief that a crime had been committed by a government entity. He also misstated the law and had engaged in conduct prejudicial to the administration of justice.
The court held that the plaintiff (Mr. O’Brien) (1) violated rule 1.2 by calling for an investigation in response to the wishes of his client in derogation of his professional obligations as a officer of the court, (2) had violated rule 3.1 by making frivolous assertions without any good faith basis for his claims, (3) had violated rule 3.3(a)(1), which requires candor toward the tribunal, by his ”concerted effort not to know the status of the law” regarding attorney-client privilege, and (4) had violated rule 8.4 by pursuing claims on behalf of his client that improperly insinuated wrongdoing by the office of the state’s attorney.
The court held that the plaintiff (Mr. O’Brien) (1) violated rule 1.2 by calling for an investigation in response to the wishes of his client in derogation of his professional obligations as a officer of the court, (2) had violated rule 3.1 by making frivolous assertions without any good faith basis for his claims, (3) had violated rule 3.3(a)(1), which requires candor toward the tribunal, by his ”concerted effort not to know the status of the law” regarding attorney-client privilege, and (4) had violated rule 8.4 by pursuing claims on behalf of his client that improperly insinuated wrongdoing by the office of the state’s attorney.
Minnesota Prosecutor Accused Of Prosecutorial Misconduct
In State of Minnesota v. Buckingham, 772 N.W. 2d 64; 2009 Minn., defendant, Buckingham was found guilty of one count of first-degree premeditated murder, two counts of attempted first-degree premeditated murder, and three counts of attempted first-degree drive-by shooting murder.
Buckingham appealed his conviction claiming that the State committed prosecutorial misconduct, which deprived him of a fair trial. During trial the prosecutor made the statement, ' “We're going to get you. My group of guys, my group of guys, my gang, is going to get you. You're messing with the wrong people.” ', as a way to interpret the statement “Cash Money, f*** you, Cash Money gonna get you,” some witnesses testified to believing Cash Money to be a gang. Buckingham claimed that the prosecutor said these statements in order to prejudice the jury against him.
Gang evidence was not admitted at trial because Buckingham was not charged with a gang related crime. The district attorney allowed the testimony of those who believed Cash Money to be a gang and included jury instructions stating that Buckingham was not on trial for being a gang member or for being acquainted with possible gang members.
State v. Ferguson, held that when gang evidence is related to motive, it can be admitted. 518 N.W. 2D 824, 835-35 (Minn. 1998). In Ferguson, substantial gang evidence was admitted, but in Buckingham only some testimony referred to Cash Money as a gang. Also, both Ferguson and Buckingham gave jury instructions stating that Buckingham was not on trial for gang related crimes. So even though the testimony and statements may have been prejudicial admitting that testimony was not an error.
Buckingham's appeal was denied and the judgment was affirmed. The prosecutor was not found to have committed any prosecutorial misconduct.
Buckingham appealed his conviction claiming that the State committed prosecutorial misconduct, which deprived him of a fair trial. During trial the prosecutor made the statement, ' “We're going to get you. My group of guys, my group of guys, my gang, is going to get you. You're messing with the wrong people.” ', as a way to interpret the statement “Cash Money, f*** you, Cash Money gonna get you,” some witnesses testified to believing Cash Money to be a gang. Buckingham claimed that the prosecutor said these statements in order to prejudice the jury against him.
Gang evidence was not admitted at trial because Buckingham was not charged with a gang related crime. The district attorney allowed the testimony of those who believed Cash Money to be a gang and included jury instructions stating that Buckingham was not on trial for being a gang member or for being acquainted with possible gang members.
State v. Ferguson, held that when gang evidence is related to motive, it can be admitted. 518 N.W. 2D 824, 835-35 (Minn. 1998). In Ferguson, substantial gang evidence was admitted, but in Buckingham only some testimony referred to Cash Money as a gang. Also, both Ferguson and Buckingham gave jury instructions stating that Buckingham was not on trial for gang related crimes. So even though the testimony and statements may have been prejudicial admitting that testimony was not an error.
Buckingham's appeal was denied and the judgment was affirmed. The prosecutor was not found to have committed any prosecutorial misconduct.
California Attorney Disciplined for Misappropriating a Client's Funds and Thereafter Refusing to Provide an Accounting at his Client's Request
In In re Trousil, 695 P. 2d 1066 - Cal: Supreme Court 1985, the California Supreme Court ordered that the attorney be suspended for two years but was placed on probation for one year on conditions including, inter alia, actual suspension for six months and a requirement that he pass the Professional Responsibility Examination.
There were actually four (4) different plaintiff’s in this case, but the attorney 1) failed to file paperwork for a real estate client as per agreement, 2) he failed promptly to deliver the settlement proceeds to his client, 3) petitioner willfully failed to communicate with his clients, to keep them apprised of the status of their case, and to perform the services for which he was retained, and 4) attorney willfully failed to communicate with his client as to the status of the case, to represent his client diligently, to file the cross-complaint, to promptly deliver papers and property to his client after he was fired, and to render an appropriate accounting of his services.
The final decision of the State Bar Court herein was filed on May 23, 1984, and recommended that petitioner's suspension be consecutive to the discipline previously imposed.
There were actually four (4) different plaintiff’s in this case, but the attorney 1) failed to file paperwork for a real estate client as per agreement, 2) he failed promptly to deliver the settlement proceeds to his client, 3) petitioner willfully failed to communicate with his clients, to keep them apprised of the status of their case, and to perform the services for which he was retained, and 4) attorney willfully failed to communicate with his client as to the status of the case, to represent his client diligently, to file the cross-complaint, to promptly deliver papers and property to his client after he was fired, and to render an appropriate accounting of his services.
The final decision of the State Bar Court herein was filed on May 23, 1984, and recommended that petitioner's suspension be consecutive to the discipline previously imposed.
Minnesota Lawyer Not at Fault in Legal Malpractice Suit
In this case, Fontaine v. Steen, 759 N.W.2d 672 (2009), Jayne Fontaine sought to challenge the district court’s decision in the Minnesota District Court of Appeals. Ms. Fontaine was in a lengthy divorce battle and she was seeking an injunction to grant her deed to a property her ex-husband owned. Apparently, her husband had allowed the mortgage of a deed to default, (the case does not mention if this was an intentional act to keep her from acquiring it in the divorce.)
Ms. Fontaine’s attorney determined that she needed an expert testimony to prove that she had a case, since she was seeking a summary judgment, the statute of limitations to find such a witness was 60 days.
“[L]egal-malpractice actions are governed by a statute with provisions for expert review and witnesses that are nearly identical to expert-review provisions of the statute regarding medical malpractice.”
After she was unable to find an expert witness to testify on her behalf, the 60-day statute of limitations expired, and so her case was dismissed.
She decided that her attorney was at fault for her losing the case so she tried to sue the law firm for malpractice and in addition tried to recover $90,000.00 in legal fees.
“Respondents denied appellant's allegations, counterclaimed for payment of outstanding legal bills, demanded that appellant comply with the expert disclosure requirements stated in Minn.Stat. § 544.42 (2006), and warned that, by statute, failure to comply with the expert-witness requirements could result in dismissal of appellant's action with prejudice.”
The appeal for the case was tried in the Minnesota District Court of Appeals. However, since Ms. Fontaine was not able to come up with any convincing support of her appeal, her case was dismissed.
Ms. Fontaine’s attorney determined that she needed an expert testimony to prove that she had a case, since she was seeking a summary judgment, the statute of limitations to find such a witness was 60 days.
“[L]egal-malpractice actions are governed by a statute with provisions for expert review and witnesses that are nearly identical to expert-review provisions of the statute regarding medical malpractice.”
After she was unable to find an expert witness to testify on her behalf, the 60-day statute of limitations expired, and so her case was dismissed.
She decided that her attorney was at fault for her losing the case so she tried to sue the law firm for malpractice and in addition tried to recover $90,000.00 in legal fees.
“Respondents denied appellant's allegations, counterclaimed for payment of outstanding legal bills, demanded that appellant comply with the expert disclosure requirements stated in Minn.Stat. § 544.42 (2006), and warned that, by statute, failure to comply with the expert-witness requirements could result in dismissal of appellant's action with prejudice.”
The appeal for the case was tried in the Minnesota District Court of Appeals. However, since Ms. Fontaine was not able to come up with any convincing support of her appeal, her case was dismissed.
Arizona Lawyer Serves Two Years Probation for Improperly Managing Client Trust Account
In In re White-Steiner, No. 06-0796 (2008), the Arizona Supreme Court suspended a lawyer for two years for improperly dealing with client trust account and failing to supervise those responsible for maintaining the firm’s trust accounts. The client trust account had been overdrawn by $44.27
The Arizona Supreme Court affirmed the Hearing Officer’s conclusion that she acted with gross negligence and should have known that she was dealing improperly with client property which was in violation of Arizona’s Ethics Rules 1.15(a) and Arizona Supreme Court Rules 43 and 44.
It was found that White-Steiner improperly dealt with client funds and improperly managed her client trust account and she failed to make reasonable efforts to make sure that the firm had in place effective measures that gave reasonable assurance that all lawyers in the firm conformed to the Rules of Professional Conduct. Also, that all non-lawyers assistants’ conduct was compatible with White-Steiner’s professional obligations.
This case teaches the importance of the duty a lawyer has under Arizona’s Ethics Rule 1.15(a) that states “Funds shall be kept in a separate account maintained within the state where the lawyer’s office is situated… Complete records of such account funds and other property shall be kept by the lawyer.” Rule 43 states “Funds belonging in whole or in part to a client or third person in connection with a representation shall be kept separate and apart from the lawyer’s personal and business account.
The Arizona Supreme Court affirmed the Hearing Officer’s conclusion that she acted with gross negligence and should have known that she was dealing improperly with client property which was in violation of Arizona’s Ethics Rules 1.15(a) and Arizona Supreme Court Rules 43 and 44.
It was found that White-Steiner improperly dealt with client funds and improperly managed her client trust account and she failed to make reasonable efforts to make sure that the firm had in place effective measures that gave reasonable assurance that all lawyers in the firm conformed to the Rules of Professional Conduct. Also, that all non-lawyers assistants’ conduct was compatible with White-Steiner’s professional obligations.
This case teaches the importance of the duty a lawyer has under Arizona’s Ethics Rule 1.15(a) that states “Funds shall be kept in a separate account maintained within the state where the lawyer’s office is situated… Complete records of such account funds and other property shall be kept by the lawyer.” Rule 43 states “Funds belonging in whole or in part to a client or third person in connection with a representation shall be kept separate and apart from the lawyer’s personal and business account.
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