My Ethics for the Law Office class has been working on finding and summarizing some current cases, from 2010 on attorneys' ethical violations. I have posted a number of them here. Thanks!
Prof. Kirstin
Angie Pantlin
“Minnesota: Lawyer Suspended for Neglecting 8 clients.”
Bent Karlsen became a lawyer in MN in May 1995. He moved from practicing in law firms to being in solo practice when in 2007 he failed to renew his attorney license and it became inactive on April 1. He continued to practice until approximately July of 2007. During the time period from June 2006 to January 2008 Karlsen also neglected client matters, failed to communicate with his clients and made false statements to his clients, and falsified an affidavit that was submitted to the USCIS. Karlsen failed to respond or otherwise communicate with the clients who brought the complaints.
In March 2008, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Karlsen citing six counts of unprofessional conduct. Karlsen filed a general denial to the claims and stated he no longer practiced law due to stress, depression and other unspecified medical conditions. Karlsen then failed to respond to many requests by letter and any other means by the Director. He then failed to show to a referee hearing and the referee filed that Karlsen be indefinitely suspended from practicing law in the State of MN.
The referee found, based on the findings that Karlsen violated Rule 1.3 by failing to diligently handle his client’s matters and Rule 1.4 by failing to communicate with his clients. He also violated Rule 4.1 by making false and misleading statements to his clients and making false statements under oath violated Rule 8.4. Karlsen also violated Rule 8.1 (a) (1) and (3) and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR). All of these rules are from the Minnesota Rules of Professional Conduct (MRPC).
The court concluded that because the nature of Karlsen’s conduct was so substantial that he be suspended from the practice of law for not less than 12 months. He caused adverse consequences for his many clients by lying to them. He neglected them by not communicating in a timely manner and sometimes not at all. The court said that “the integrity of our legal system depends first on the honesty and integrity of lawyers.” The court also said that since this case involved eight clients matter over more than two years it was seen as an aggravating factor in determining appropriate action.
Key terms include Karlsen, disciplinary action, suspension, Minn.
Website: http://minnlawyer.com/2010/02/15/attorney-discipline-indefinite-suspension/
\Sandra Black-OR Paralegal November 28, 2010 Ethics Unit 8 Assignment Disciplinary ActionsSummary
Link for opinion: In re Discipline of Harding, 2004 UT 100, 104 P.3d 1220, 2004 Utah LEXIS 221, 514 Utah Adv. 3 (2004)
Title: Judge disbarred for violation of Rule 6(c) of the Rules of Lawyer Discipline and Disability. (Converted to: Chapter 14, Article 5. Lawyer Discipline and Disability, Rule 14-105) and Chapter 13 Rules of Professional Conduct 8.4 (b)(d).
The judge’s wife called the police to their home on July 13, 2002. The police officers responded to the domestic disturbance call and found cocaine, heroin, and drug paraphernalia in the Judge’s home. He was administered drug tests and tested positive for cocaine, opiates, and Valium. Judge Harding was arrested by the officers and charged with two felony counts of possession and use of controlled substances. Judge Harding pled guilty to two counts of attempted possession and use of controlled substances, which is a class A misdemeanor.
The court ordered the Office of Professional Conduct (OPC) to investigate the judge under the ordinary rules of lawyer conduct because the judge gave his resignation not to hold judicial office prior to any disciplinary hearings by the bar. However, the Supreme held that the court had the authority to issue a final order on the judge’s practice of law.
The Utah Supreme court disbarred Judge Ray Harding Jr. on November 30, 2004 from practicing law in the State of Utah, In the Matter of the Discipline of Ray Harding, Jr., # 1363. Judge Harding disputed the Courts jurisdiction under Rule 6(c) ( now Rule 14-105)
The Utah Supreme Court held that under rule 8.4(d) of the Rules of Professional Conduct, lawyers that abuse a public office also has an inability to fulfill the role of an attorney. “Here, Harding's behavior demonstrates an inability to fulfill that role with the degree of fitness required to practice in this state.”
The Court also held that the possession and use of unlawful controlled substances were not enough to cause disbarment. It was the all of the aggravated circumstances that were involved. The judge publicly maintained his innocence and criticized his accusers in the media. He brought disgrace to the bench and breached the public’s trust by his admission of guilt. The judge made these statements to the media fully knowing that he was solely responsible and accountable for his actions. (Rules 8.4(b)(c) were violated here)
The importance of this case regarding Rules 8.4 (b)(c)(d) is that not only did the judge commit a crime but he also criticized the police and prosecution in the media with the full knowledge that he was culpable for his actions because he was a sitting judge in the Fourth District Court. When he later pled guilty after adamantly and publicly maintained his innocence for over a year, he disgraced the bench and burdened his fellow district court judges while collecting his pay. The judge misrepresented himself and did intentionally attempt to deceive the public’s trust. The Utah Supreme Court will not tolerate such conduct that attempts to prejudice the administration of justice by a judicial official to the public. The importance of Rule 6(b) is that the Utah Supreme court can order an OPC investigation into unethical judicial conduct. The Court has the authority to hear such cases and it has the final ruling for disbarment.
Student Name: Sonja Bearson
Link for opinion: http://www.lawlibrary.state.mn.us/archive/ctappub/1006/opa091282-0629.pdf
Title: Minnesota: Law Firm Sued by Client Over Legal Malpractice Case
In Schmitz v. Rinke, 783 N.W.2d 733 (Minn. App. 2010), the Minnesota Appeals Court reviewed the case of legal malpractice brought against Rinke, Noonan, Smoley, Deter, Colombo, Wiant, Von Korff and Hobbs, Ltd. (Rinke Noonan) by their client Ralph Schmitz. Mr. Schmitz accuses Rinke Noonan of legal malpractice in a transactional matter. The district court granted Rinke Noonan’s motion for judgment as a matter of law, and denied Rinke Noonan’s pretrial motion for summary judgment.
The Court is reviewing whether the district court made a mistake when granting the respondent’s motion for judgment as a matter of law at the close of appellant’s case in chief, and whether the district court erred in denying the respondent’s pretrial motion for summary judgment.
The appellant is claiming that the firm was negligent and caused him to incur damages. While both parties were unable to provide undeniable evidence either way, Schmitz was ultimately unable to prove all elements of an action for legal malpractice in a transactional matter: “(1) an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts proximately caused the plaintiff’s damages; and (4) that but for the defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result obtained.” Jerry’s, 711 N.W.2d at 816, 819.
The Minnesota Appeals Court affirmed the district court’s grant of judgment as a matter of law and reversed its denial of summary judgment.
This case is one that focuses on communication. It teaches the importance of not only the relationship a lawyer keeps with the client, but also the relationship that the client cultivates with the lawyer. While the case did not lead to the disciplining of the lawyer, it still shows that when there is idleness seen from both sides it will inevitably lead to an issue.
Labels for the post: legal ethics, negligence, damages, malpractice
Susan Stavros
Link for opinion – http://www.lawlibrary.state.mn.us/archive/supct/1003/OPA082082-0318.pdf
Title – Minnesota Lawyer Suspended Indefinitely for Misconduct, Appeal Unsuccessful.
In re Albrecht, 779 N.W.2d 530 (Minn.2010), the Minnesota Supreme Court suspended a lawyer for an indefinite time with no right to petition for reinstatement for a minimum of two years for misconduct causing his client financial harm.
The Minnesota Supreme Court affirmed the referee’s conclusion that the lawyer had shown a pattern of incompetence and lack of diligence that violated Minn. R. Prof. Conduct 1.1, 1.3, 3.4 (c), and 8.4(d) and violated Minn. R. Prof. Conduct 8.4(d) by issuing a non-negotiable check from an account with insufficient funds and failing to communicate with his client regarding that check. Albrecht did not contest the charges; however, he appealed the referee’s recommendation and ordered a transcript of the referee’s proceedings. Albrecht contests the referee’s findings with respect to several mitigating and aggravating factors, argued that the referee failed to consider several relevant mitigating factors, and challenges the referee’s recommended discipline as “arbitrary.” He argues that a three-month suspension, with a possible requirement of a reinstatement petition would be a more appropriate discipline.
The first mitigating factor Albrecht cited was his adjustment disorder. The Minnesota Supreme Court held that the referee did not err in finding that Albrecht’s adjustment disorder was not a mitigating factor.
The second mitigating factor Albrecht said the referee did not consider was the time elapsed since his last instance of misconduct causing harm to a client. In this case the Supreme Court ruled the referee did not err in finding that the time gap between the attorney’s misconduct was not a mitigating factor.
The third mitigating factor Albrecht presented was the favorable results he had achieved for other clients in complex matters. The Court ruled that a referee may choose to treat an attorney’s good reputation or past good results in difficult cases as mitigating factors. However, it is not erroneous for the referee to choose not to.
Fourth, Albrecht argued that the referee failed to address whether Albrecht’s remorse for his misconduct was a mitigating factor. The Court found that the referee did err in failing to address whether this was a mitigating factor and was required to make a factual finding regarding Albrecht’s remorse.
Fifth, Albrecht cited his cooperation with the Director’s disciplinary investigation as a mitigating factor and argued the referee erred in not addressing this. The Court held that compliance in a disciplinary investigation is not a mitigating factor in attorney discipline cases.
Lastly, Albrecht argued that the referee should have treated his pro bono work as a mitigating factor. The Court found that it was unclear whether the referee considered Albrecht’s volunteer work as a mitigating factor; however this lack of clarity does not mean the referee erred in not concluding that Albrecht’s pro bono work was a mitigating factor.
Albrecht also argued that the referee erred in treating the financial harm to his client as an aggravating factor. The Court ruled that the referee did not err in treated this as an aggravating factor.
This case teaches the importance of the lawyer’s enhanced duties under Rules 1.1 and 1.3 that state a lawyer must provide competent and diligent representation to a client. Competent representation requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
In addition, Minn. R. Prof. Conduct 3.4(c) states that a lawyer shall not “knowingly disobey an obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists.”
Labels for the post: legal ethics, lawyer suspended, attorney misconduct, Rule 1.1, Rule 3.4, Rule 8.4, financial harm to client.
Sherron M Eisenhart
Minnesota Attorney Suspended for Mis-use of Client Trust Account
James L. Berg was an attorney in the State of Minnesota, who was admitted in 1982 as a personal injury attorney. The petition that was filed found that Mr. Berg’s actions of misconduct were as follows in the case.
The first action was misappropriating the funds of six of his clients. He disbursed money from his client trust account, but did not say or admit to whom. He withdrew funds from his client trust account for his own personal use, as well as set up automatic with-drawls for his own personal bill payments. When it came to the client’s monies, he didn’t put some monies in the account when he received it from them and also when it came to allocating the money, he forged his client’s signature to the check and withdrew all the money regarding that settlement and failed to send funds to clients from trust account checks.
He also did not provide proper documentation regarding outcomes of cases to his clients and failed to write contingency agreements. These clients never saw the outcome of their case or true billing information. He neglected his client’s matters, as well as completely lacked in communication with them.
During this investigation, he denied wholly all these allegations and did not comply with the ethics committee or the director. After the investigation had started, he changed his answers and admitted to all the allegations.
There were factors that were taken into consideration since Berg had not had any offenses in the 20 years of practice. He had been diagnosed with a fatal heart condition and had depression, which may have affected his ability to make effective client decisions. However, there was intentional misconduct when it came to the money and concealment of the funds and failure to cooperate with the investigation.
The decision of the Court was that Berg would be indefinitely suspended for his actions.
Link to case information
http://www.injurylawstpaul.com/messages/539.htm -- this is the order
Shari Martinez
Link for opinion: http://www.wicourts.gov/services/public/lawyerreg/statusreprimands/jackman.pdf
Title: Wisconsin: Lawyer Suspended for Failing to Report a Criminal Conviction
In re Jackman, SCR 22.09(3), 11, 8 (Wis. 2010), the Wisconsin Supreme court publically reprimanded a lawyer for not reporting a prior criminal conviction for Operating While Under Influence (2nd offense”).
The Wisconsin Supreme Court found that in 2005 the lawyer failed to report criminal convictions to the Office of Lawyer Regulation (“OLR”) and the clerk of the Supreme Court as required under SCR 21.15(5).
The lawyer has been in practice since 1997, in 2000, he was convicted of OWI (1st), a non-criminal offense. In July 2004, he was pulled over in Marathon County and convicted January 2005 for OWI (2nd), which is a criminal charge. He was again pulled over in Adams County for misdemeanor Operating While Revoked (1st). The lawyer was convicted for his OWI (3rd) in January 2010 when it was discovered about the prior convictions.
By failing to report the January 2005 conviction, the lawyer violated SCR 21.15(5) enforced by the Rules of Professional Conduct via SCR 20:8.4(f). It states “It is professional misconduct for a lawyer to…violate a statute, Supreme Court rule, Supreme Court order or Supreme Court decision regulating the conduct of lawyers.” The lawyer had knowledge that his driver’s license was suspended in August 2005 and was the result of the January 2005 conviction in which he violated SCR 20:8.4(b). The conviction in January 2010 also violated SCT 20:8.4(b). In accordance of SCR 22.09(3), the lawyer was publicly reprimanded November 8th, 2010.
Student Name: Sarah Nelson
Link for opinion: http://www.lawlibrary.state.mn.us/archive/supct/0904/OPA071759-0423.pdf
Title: Appellant’s Conviction Not Affirmed Even Though Prosecutor Was Unauthorized to Practice Law
In In re State v. Graham, 764 N.W.2d 340; 2009, appellant filed a direct appeal for voiding his conviction based on arguments of prosecutorial misconduct and unauthorized practice of law by the lead prosecutor. Minnesota Supreme Court rejected the arguments and affirmed the conviction.
Appellant claimed prosecutorial misconduct in three arguments: interfering with alibi witnesses, obstructing defense with evidentiary objections, and using improper language in closing arguments.
Appellant claimed prosecution interfered with alibi witnesses by suggesting they would be prosecuted for giving false testimony, thereby influencing the witnesses against testifying. This argument was found to be unsubstantiated due to the fact that prosecution met with the witnesses’ independent counsel and not directly with them; thereby the witnesses were able to make a voluntary decision. It was determined the prosecution followed American Bar Association’s Standards for Criminal Justice: Prosecution Function and Defense Function which states, “a prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying” (§ 3-3.2(b) (http://www.abanet.org/crimjust/standards/pfunc_blk.html#3.2)
Appellant argued the prosecution’s evidentiary objections represented a pattern of obstruction when defense was attempting to impeach witnesses. Appeals court determined, “none of the State’s objections were so egregious or improper as to rise to the level of prosecutorial misconduct.” (http://www.lawlibrary.state.mn.us/archive/supct/0904/OPA071759-0423.pdf)
The court rejected the appellant’s claim that the State attempted to denigrate his defense and to prejudice the jury against him in closing arguments.
Appellant requested a mistrial on the grounds the lead prosecutor was unauthorized to practice law at the time of the trial. Hennepin County Attorney’s office had been notified of the UPL status of the prosecutor. Her license had been restricted for over twenty years because she had not fulfilled her continuing legal education requirements required under Minnesota Statute § 481.02. Court rejected the argument stating, “…conviction should be set aside only when the defendant is able to show prejudice warranting reversal.” (http://www.lawlibrary.state.mn.us/archive/supct/0904/OPA071759-0423.pdf)
This case teaches how important it is for attorneys to diligently maintain their continuing legal education requirements under Rule 3-3.2(b), and that if an attorney is found to be practicing unlawfully, their cases could be at risk.
Labels for the post: legal ethics, unauthorized practice of law, UPL, Rule 3-3.2, prosecutorial misconduct
Student Name: Narak Sem
Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
Title: Minnesota: Lawyer Publicly Reprimanded and Placed on Probation for Two Years
In In re Bull, 788 N.W.2d 890 (Minn. 2010), the Minnesota Supreme Court approved the jointly recommended disposition of the lawyer and the Director of the Office of Lawyers Professional Responsibility, subject to the following conditions:
- The lawyer shall cooperate fully with the Director’s Office during probation period.
- The lawyer shall abide by the Minnesota Rules of Professional Conduct.
- By April 1, 2011, the lawyer shall submit a list of completed courses of all continuing legal education (CLE) credits to the Director’s Office.
The Director filed petition for disciplinary action alleging that the lawyer Eric David Bull committed professional misconduct when the lawyer represented multiple clients before a tribunal while the lawyer was suspended for failure to CLE credits. The lawyer failed to inform his clients, the court, and opposing counsel that he was ineligible to practice law, which violates Minn. R. Prof. Conduct. 5.5(a) and 8.4(d).
The lawyer admits that his conduct violated the Rules of Professional Conduct, and waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The lawyer and the Director jointly propose that the appropriate discipline for the lawyer professional misconduct is a public reprimand and two years of probation.
The Minnesota Supreme Court approved the jointly recommended disposition and fined the lawyer $900 in costs and disbursement according to Rule 24, RLPR.
Labels for the post: probation, discipline, Rules of Professional Conduct, Rule 14
Student Name: Linda Votaw
Link for Opinion: http://www.utcourts.gov/opinions/supopin/Nemelka061209.pdf
Title: Utah: Lawyer Challenges Public Reprimand Order When Panel Errs in Allowing Cross-examination of Complainant
In Nemelka v. Ethics & Discipline Comm. , 2009 UT 33, 212 P.3d 525, 2009 Utah LEXIS 121 (2009) The Utah Supreme Court vacated a public reprimand for a new exception hearing based on “a respondent has a right to cross-examine a complainant at an exception hearing.” Rules of Professional Practice 14-510 (c)
Richard Nemelka terminated his attorney-client relationship with Tina Simmons before he completed her divorce action. Ms. Simmons filed a complaint with the Utah State Bar Office of Professional Conduct alleging that Mr. Nemelka acted unethically and committed misconduct while he represented her, which was not specifically detailed. The screening panel found that Mr. Nemelka violated five Rules of Professional Conduct, namely 1.6, 1.16 (d), and 8.4 (a). Two other rules were not mentioned. They recommended he receive a public reprimand. Mr. Nemelka filed an exception and requested a hearing based on the Rules of Professional Practice 14-510 (c) that he was not allowed to cross-examine Ms. Simmons. He attempted to subpoena her but was unsuccessful. Mr. Nemelka then filed a petition for extraordinary relief and challenged the panel chair ruling that he failed to show the ruling was unreasonable. The Supreme Court vacated the panel’s ruling and remanded for a new exception hearing.
Under 14-510 (c) of the Supreme Court Rules of Professional Practice the respondent has the right to cross-examine the complainant, which he was not allowed to do. Under rule 65B of the Utah Rules of Civil Procedure states “extraordinary relief may be available where no other plain, speedy, and adequate remedy is available.” Utah R. Civ. P. 65B(a) The violation of the Rules of Professional Conduct were not addressed in this case.
Karla Glad
Minnesota Lawyer suspended for fraud and misrepresentation in his dealings and chief executive officer
In In re Disciplinary Action Against Jonas, 789 N.W. 2d 687 (Minn. 2010), the Minnesota Supreme Court suspended a lawyer for a minimum of one year, required the lawyer to notify clients, opposing counsel, and tribunals of suspension, and ordered that the lawyer will be not be allowed to maintain or hold the position of authorized signer on any lawyer trust account.
Both the Petitioner and respondent admit that the lawyer abused his authority as Chief Executive Officer of two title companies by failing to record over 3,000 mortgages on real estate transactions, reneged on $1.321 million in mortgage payoffs, and failed to pay more than $196,000 in title insurance premiums to title insurers.
The lawyer admitted to his engagement in the fraud, deceit, and misrepresentation in his activities and responsibilities as Chief Executive Officer of title companies as well as in his role in working with mortgage and title companies in violation of Minn. Stat. §§ 45.027, subd. 7(4), 60K.43, subd. 1(7) and (8), 72A.20 subd. 18 (2008), and Minn. R. Prof. Conduct 8.4(c).
This case teaches the importance of a lawyer’s responsibility to act in an honest and trustworthy capacity with regard to his duties both in and outside of his profession. Rule 8.4(c) states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Labels for post: Legal Ethics, fraud, misrepresentation, lawyer suspended, Rule 8.4(c).
Student Name: Julie Benson-Famelis
Link for opinion: http://www.lawlibrary.state.mn.us/archive/supct/1004/OPA090472-0408.pdf
Title: Minnesota: Lawyer Suspended Indefinitely for Making False Statement before Opposing Council, Director, and Referee Coupled with Seven Historical Disciplinary Actions
In In re Lyons, Jr., 780 N.W.2d 629 (Minn. 2010), the Minnesota Supreme Court suspended a lawyer indefinitely and is not permitted to apply for reinstatement for a minimum of 12 months for knowingly making false statements before opposing council, director, and referee. The misconduct and substantial disciplinary history, warrants significant discipline.
The Minnesota Supreme Court affirmed the referee’s conclusions that the lawyer knowingly lied to the Director and did not provide emails, which violated Rule 25(a), RLPR. He also violated Rules 8.1(a) and 8.1(b) and 8.4(c) and 8.4(d) 4 of the Minnesota Rules of Professional Conduct when he made a false statement and did not disclose facts necessary for the case and professional conduct that showed dishonestly and deceit; and Rule 25 of the Minnesota Rules on Lawyers Professional Responsibility.
The lawyer misconduct is serious because he failed to be truthful to opposing counsel about whether his client died before or after counsel reached agreement on terms of a settlement, was untruthful to the Director, and during testimony before the referee about when he learned of his client's death. He also had a substantial disciplinary history. See In re Forrest, 158 N.J. 428, 730 A.2d 340, 345-46 (N.J. 1999) see also Harris v. Jackson, 192 S.W.3d 297, 306 (Ky. 2006) and Ky. Bar Ass'n v. Geisler, 938 S.W.2d 578, 579, 44 2 Ky. L. Summary 13 (Ky. 1997). When "a lawyer demonstrates a lack of that truthfulness and candor that the courts have a right to expect of their officers," we "do not hesitate to impose severe discipline." In re Schmidt, 402 N.W.2d 544, 548 (Minn. 1987)
This case teaches the importance of the lawyer’s conduct during disciplinary proceeding under Rule 8.1 and 8.4 broken down by: Rule 8.1(a) provides in relevant part that "a lawyer . . . in connection with a disciplinary matter, shall not knowingly make a false statement of material fact." Rule 8.1(b) provides in relevant part that "a lawyer . . . in connection with a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from [a] disciplinary authority." Rule 8.4(c), provides that "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty. fraud, deceit, or misrepresentation." 8.4(d), provides that "[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice." In addition Rule 25(a)(1), RLPR, provides that "[i]t shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District Committee, the Director, or the Director's staff, the Board, or a Panel, by complying with reasonable requests, including requests to [f]urnish designated papers, documents or tangible objects."
Labels for the post: misconduct, false statement, lawyer suspended, Rule 8.1, Rule 8.4
Heidi DeAngelis
“Wisconsin: Office of Lawyer Regulation Charges Attorney With 21 Acts of Misconduct.”
Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
Knickermeier v. Reinke 2006 WI App 175; 295 Wis. 2d 841; 721 N.W.2d 157; 2006 Wisc.
In Knickermeier v. Reinke 721 N.W. 2d 157 (Wisc. 2006) Attorney Knickermeier was found to be in violation of numerous Supreme Court rules and was in breach of fiduciary duties by way of using his clients estate income for his own personal use. (SCR 20:1.15 Safe keeping; trust accounts and fiduciary accounts.)
In this case the Appellant Attorney had filed a counter claim to the judgment asking the court to convert the amount of punitive damages that were awarded to his client Reinke. The Wisconsin Circuit Court found Knickermeier had breached his duty to his client in reference to the estate of clients deceased mother and denied him the counter claim. Knickermeier appealed the case for attorneys fees for the representation of James Reinke and the trust account.
In the appeal, the case was affirmed as in the circuit court decision, in all areas accept in the area of the probated estate. In this case the court found that there was no evidence that Knickermeier had done work for the estate and no evidence that he had billed Reinke for that work.
While the Circuit Court case was still pending, the Office of Lawyer Regulation charged Jeffrey Knickermeier with numerous ethics violations. The referee recommended that supreme court discipline Jeffrey Knickermeier for twenty-one acts of misconduct and in turn revoke his license. Office of Lawyer Regulation v. Knickmeier, 2004 WI 115, P105, 275 Wis. 2d 69, 683 N.W.2d 445,
This case has many ethical intricacies in terms of what an attorney may call “billable” hours. Wisc. SCR 20:1.5 (b)(1). (a) “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee.”[1]
Labels for the post: Fiduciary duty, disciplinary action, probated, conversion, punitive, trust account, ethics violations, misconduct.
Amanda Steele
Minnesota Attorney Suspended Indefinitely for Failing
to Disclose Death of Client During Settlement Negotiations
[1] http://lawyersusaonline.com/wp-files/pdfs-2/in-re-lyons.pdf
On April 8, 2010, the Minnesota State Supreme Court upheld a decision to indefinitely suspend Thomas James Lyons, Jr. for failing to disclose the fact that his client died before a settlement was reached in his case. Lyons was also found to have been untruthful with the Director, opposing counsel and during testimony before the referee.
Thomas Lyons represented a Montana man who had been falsely reported as being dead by Trans Union Credit Union. Lyons retained a Montana attorney, Sean Frampton, to assist with the case. During the settlement negotiations, Lyons was contacted by Frampton on October 7, 2007 and was informed that the client became ill and was hospitalized. The client passed away on October 9, 2007. Lyons contacted Trans Union to settle and an agreement was reached on October 26, 2007 for a settlement amount of $19,000.
When Trans Union found out that the client had died, they rescinded their settlement offer and reported Lyons for disciplinary action for failing to report the death of the client and for giving misleading and false statements regarding the client.
A referee hearing was held and Lyons was found to have violated Rules 3.3(a)(1), 4.1, and 8.4(c) and (d) of the Montana Rules of Professional Conduct; Rules 8.1(a) and (b) and 8.4(c) and (d) of the Minnesota Rules of Professional Conduct; and Rule 25 of the Minnesota Rules on Lawyers Professional Responsibility.
Lyons was ordered to be indefinitely suspended from the practice of law and was not eligible to petition for reinstatement for a minimum of 12 months. He was ordered to comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals) and to comply with Rule 18(a)-(c), RLPR if he is to seek reinstatement. Lyons was also ordered to pay $900 in costs.
[1] Wisconsin Lawyer, Vol. 80, No. 6, June 2007, http://www.wisbar.org
Student Name: Melanie Werner
Look for Opinion: www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=48403
Title: Wisconsin: Lawyer Suspended for Professional Misconduct
In In Re Merriam, 780 N.W. 2d 150 (Wisc. 2010) the Wisconsin Supreme Court suspended a lawyer for ninety days due to professional misconduct in filing bankruptcy petitions for several clients.
The Wisconsin Supreme court affirmed the conclusions that the lawyer violated SCR 20:1.3 because he “failed to act with reasonable diligence and promptness” in preparing a reaffirmation agreement for one of his clients. The lawyer disregarded the timeline in accordance with filing certain documents in bankruptcy proceedings and ultimately abused the client’s trust for the lawyer.
The lawyer also was in violation of SCR 20:1.4, SCR 20:3.3(a), SCR 20:1.2(d) and SCR 20:8.4(f). The lawyer failed to keep the client informed of the status of the case and he made false statements to the tribunal about this issue. The lawyer also violated rules in that he assisted the client by using criminal and fraudulent activities and means. The lawyer also violated the Supreme Court rules for the regulation of lawyers.
This case illustrates the importance of a lawyer’s obligation under SCR 20:1.1 which states that “a lawyer shall provide competent representation to a client” and “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyers disregard for this core policy led to his other professional misconduct violations.
Labels for the Post: Legal Ethics, Client Relations, Client Funds, Effective Representation
Student Name: Krystal Enger
Link for opinion: http://www.lawlibrary.state.mn.us/archive/ctappub/1006/opa091282-0629.pdf
Title: An Attorney’s Duty
In the case, Schmitz v. Rinke, Noonan, 783 NW 2d 733 (Minn. Court Appeals 2010) a law firm is sued for legal malpractice.
In June 2001 Ralph Schmitz and Robert Johnson signed a contract agreeing to Schmitz agreed to sell his membership interest in a 18 limited liability companies for $1.77 million to Johnson. Johnson was working with US Bank for financing and was required by the contract to be approved by September 15th, 2001, but when Johnson met with US Bank on August 9, 2001 the funding that this transaction need to proceed was denied. The contract between Johnson and Schmitz failed and Johnson sued Schmitz for breach of contract. Schmitz hired Rinke Noonan to represent them in this breach of contract case. Which ended up in Schmitz suing Rinke Noonan for legal malpractice.
In June 2003 Johnson sued Schmitz for breach of contract in the Stern County District Court. The court denied Schmitz motion for summary judgment. The court ruled that Schmitz terminated the contract on his August 15th letter. The district court then found in favor of Johnson’s motion for summary judgment and dismissed Schmitz counter claim with prejudice. In June 2007 Schmitz sued Rinke Noonan for malpractice.
There are two legal issues in this case. The first legal issue is “Should the district court have granted respondent motion for summary judgment as a matter of law?” The second legal issues is “Was the district court wrong when they denied respondent’s pretrial motion for summary judgment?”
The first legal issue is covered by case law. In Christians v. Grant Thornton, LLP, 733 N.W.2d 803, 812 (Minn.App.2007), states “That when a court apples the “but for” test they must envision what would have occurred but for the negligent conduct.” Fontaine v. Steen, 759 N.W.2d 672, 677 (Minn.App.2009) says “To recover for legal malpractice the plaintiff needs to produce expert testimony as to causation.” The second legal issue is also relies on case law. In the case, Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn.1999) says “Expert affidavits must make far more than mere general disclosures. [2] If the affidavits contain “nothing more than broad and conclusory statements as to causation,” they are legally insufficient to satisfy the professional- malpractice statute.
In the first legal issue, the Court of Appeals decided that the District Court of Stern County was right in granting judgment as a matter of law in favor of Rinke Noonan with the claim arising out of the August 15th letter. The second legal issue decision issued by the Court of Appeals was that the District Court of Stern County was wrong in denying Rinke Noonan’s pretrial motion for summary judgment.
This case shows us just how important it is for a lawyer to act competently. There are many ethical issues that can arise when a lawyer does not act competently.
Labels for the post: legal malpractice, motion for summary judgment, negligent conduct
Student name: Brittany Villalpando
Link for Opinion: http://www.wicourts.gov/SearchWicourtsBartzv.Edmonds
Title: Michael D. Bartz filed a complaint against his former attorney, Michael J. Edmonds, for legal malpractice, fraudulent misrepresentation, and breach of fiduciary duty.
All of Bartz's claims are in relation to Edmonds's representation of Bartz in a federal habeas corpus action. Bartz declares that since Edmonds did not notify him of the federal district courts denial of his habeas corpus petition he gained litigation expenses and lost the ability to appeal the disapproval of his petition.
Edmonds responded that Bartz's claims should be dismissed because Bartz lacked any relevant evidence to support claims in which were made. Bartz also failed to show his innocence, as required by state law. The circuit court agreed with Edmonds and dismissed Bartz's claims. Bartz appeals the circuit court's order. Court affirmed.
Bartz grounds his legal malpractice claim on his allegation that Edmonds did not notify him of the district court's decision and judgment denying his habeas petition, which cost him his appeal and liberation. “Bartz's legal malpractice claim needs to prove four elements which include: (1) that Bartz had a lawyer-client relationship with Edmonds; (2) that Edmonds committed acts constituting negligence; (3) that Edmonds's negligence caused injury to Bartz; and (4) the nature and extent of the injury.”
Since Bartz admitted during trial and in his brief that he shot the victim, he is incapable to show his innocence. Due to Bartz admittance to the allegation his claims against Edmonds was dismissed by the circuit court.
Labels for the Post: See Legal Malpractice and Fraudulent Misrepresentation.
Kristyn Timmers
Unit 8 Assignment
November 23, 2010
Link for opinion: http://www.lawlibrary.state.mn.us/archive/supct/1006/OPA081522-0610.pdf
Title: Minnesota Lawyer Disbarred for Financial Exploitation of a Vulnerable Adult
In the case of In re Disciplinary Action Against Mayne, 783 N.W.2d 153 (Minn. 2010), the Minnesota Supreme Court disbarred a lawyer for criminal charges of felony financial exploitation of a vulnerable adult in violation of Minn. Stat. § 609.2335, subd. 1(1).
In 2005 attorney Lisa Jane Mayne’s father, afflicted with diabetes and Alzheimer’s syndrome, executed a power of attorney, and appointed Ms. Mayne as his attorney-in-fact. Following this appointment, Ms. Mayne took approximately $60,000 from her father’s bank accounts and failed to pay approximately $45,000 in bills to his care facilities. Ms. Mayne’s sister alerted the authorities of her behavior and she was charged with one count of felony financial exploitation of a vulnerable adult, a violation of Minn. Stat. § 609.2335, subd. 1(1). Ms. Mayne plead guilty, was convicted of the crime, and sentenced to 18 months in prison. Her prison term “was stayed during the pendency of 10 years probation.” And her probation included “payment of $46,000 in restitution to her father, continuing psychological counseling, submission to DNA testing, serving 90 days in jail, and the payment of a $100 fine.” (In re Disciplinary Action Against Mayne, 783 N.W.2d 153 [Minn. 2010])
The Director of the Office of Lawyers Professional Responsibility petitioned the court for disciplinary action against Ms. Mayne citing violation of Minnesota Rules of Professional Conduct 8.4(b) and (c), regarding professional misconduct; specifically, committing a criminal act and engaging in fraudulent activity. Ms. Mayne admitted her guilt and requested suspension and probationary reinstatement. A referee was appointed to determine Ms. Mayne’s punishment and, citing mitigating factors, recommended indefinite suspension with leave to apply for reinstatement following the end of her criminal probation in 2018. Ms. Mayne and the Director did not agree with the referee’s conclusion and requested review by the Minnesota State Supreme Court.
The court disagreed with the referee’s decision stating “…the mitigating factors proven by Mayne fall short of what is required for us to deviate from the sanctions we generally impose for similar misconduct. Mayne’s stress, restitution, lack of prior discipline, and seeking of treatment are not significant enough to outweigh her misconduct. Mayne’s misconduct was very serious and resulted in great harm to her father. We seek to deter future similar abuses by lawyers acting as attorneys-in-fact, especially by those acting as attorneys-in fact for vulnerable persons.” (In re Disciplinary Action Against Mayne, 783 N.W.2d 153 [Minn. 2010]) The court concluded that Ms. Mayne’s conduct warranted disbarment.
This case demonstrates the importance of Rule 8.4(b) and (c), which states that it is professional misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” and to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” This case also establishes a precedent regarding abuses of lawyers acting as attorneys-in-fact.
Labels for the post: Attorney-in-fact, financial exploitation, vulnerable adult, Minn. Stat. § 609.2335, lawyer disbarred, Rule 8.4, mitigating factors
Ethics for the Law Office
Unit Eight Assignment
Lorri Savoie
Link for opinion: http://www.lexisnexis.com/hottopics/lnacademic/
Title: Wisconsin: Attorney’s license revoked in the state of Wisconsin for professional misconduct.
In, In re Fisher, 785 N.W.2d 321 (Wis. 2010), the Wisconsin Supreme Court revoked the license of an attorney to practice law in Wisconsin and was ordered to pay restitution along with the costs of the proceedings.
The Wisconsin Supreme Court approved and adopted the referee’s findings of fact and conclusions of law that the attorney committed 55 counts of professional misconduct. The attorney engaged in dishonesty, fraud, deceit and misrepresentation in violation of Wis. R’s. Prof. Conduct SCR 20:8.4(c). The attorney terminated representation with clients prior to completing legal services for which he was hired, SCR 8.4(f). The attorney abandoned his practice and jurisdiction without notice, SCR 8.4(h) and SCR 10.03(2). The attorney failed to advise clients with proper notice and unilaterally terminating the representation SCR 1.16(d). And the attorney failed to respond to the grievances against him, SCR 20:8.4(h), SCR 22.03(2) and (6).
The OLR received information that the attorney had abandoned his law practice, left the United States, and had acknowledged taking unearned funds from his clients. Further attempts to contact the attorney by e-mail, correspondence, and by service of process were unsuccessful.
This case teaches the importance of an attorney’s duty under Rule 8.4(c) that states; it is professional misconduct for a lawyer to: “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Labels for the post: Legal ethics, professional misconduct by an attorney, dishonesty, fraud, deceit, and misrepresentation of clients, Rule 8.4
Janette Luna
Ethics
Case Summary
Minnesota Lawyer Suspended for Incompetence and Misconduct in Clients Case
In re Albrecht 779 N.W.2d 530 (Minn 2010), the Minnesota Supreme Court suspended a lawyer for a minimum of two (2) years for misconduct and harm to the public as well as harm to the legal profession.
The Minnesota Supreme Court upheld the referees’ conclusion that Albrecht actions of misconduct by not representing his client diligently and timely and by knowingly disobeying the rules of a tribunal, violated the Minnesota Rules of Professional Conduct, 1.1, 1.3, 3.4(c), and 8.4(d) and these actions caused considerable harm to the client.
Albrecht argued that it was because of his adjustment disorder that were mitigating factors led to his misconduct and that the referee did not take into consideration his good standing in the legal community.
The referee found that although Albrecht did suffer from a serious psychological disorder, he did not prove that he suffered from a sever psychological disorder and that the psychological problem was a cause of his misconduct. The referee concluded that Albrecht was not remorseful for his actions and he failed to get adequate treatment for his adjustment disorder.
This case is an example of what can happen when an attorney does not provide competent representation (Minnesota Rules of Professional Conduct Rule 1.1), when an attorney does not represent his client with diligence (Minnesota Rules of Professional Conduct Rule 1.3), when an attorney knowingly disobeys a rule from a tribunal (Minnesota Rules of Professional Conduct Rule 3.4(c)), and when an attorney engages in conduct that is prejudicial to the administration of justice (Minnesota Rules of Professional Conduct Rule 8.4(d).
Labels for the post are: misconduct, ethical violations, and Minnesota Rules of Professional Conduct, rules 1.1, 1.3, 3.4(c), and 8.4(d).
Lisa Malloch
November 30, 2010
Ethics for the Law Office
Case Summary
Case Citation: Lutron Elecs. Co. v. Crestron Elecs., Inc., 2010 U.S. Dist. LEXIS 120864 (D. Utah Nov. 12, 2010)
Summary: This case was brought before the Court regarding Petitioner’s Expedited Motion to Disqualify and Defendant’s Expedited Motion for A Determination of No Conflict of Interest. In 2006, Lutron hired the law firm of Kaye Scholer to represent it concerning issues related to Lutron's U.S. Patents. In 2006, Mr. Joshua S. Reisberg was hired as an associate at Kaye Scholer and Mr. Reisberg was assigned to complete work on Lutron's behalf. For approximately 8 months, Mr. Reisberg, along with other associates and law clerks, reviewed and coded Lutron documents for various lawsuits brought by Lutron. Mr. Reisberg did not perform any work on Lutron's behalf after 2007, and in September of 2009, Mr. Reisberg left Kaye Scholer and joined the law firm Quinn Emanuel. While working at Quinn Emanuel, the firm was hired to represent Crestron in a case against Lutron. When this case began, no one at Quinn Emanuel was aware of a possible conflict of interest. It wasn’t until Quinn Emanuel received a letter from Kay Scholer that there was a conflict of interest. Upon receipt of the letter, Quinn Emanuel immediately placed an ethical wall around Mr. Reisberg and began an investigation regarding any possible conflict. During the investigation, it was found that Mr. Reisberg hadn’t spoken to anyone regarding his review of Lutron documents and that he didn’t even recall any of the information contained in the documents since he was simply coding the documents and wasn’t involved in any litigation planning. Quinn Emanuel informed Lutron of their investigation and of all the measures taken to create the ethical wall. The Court after a review of this information denied Petitioner’s Expedited Motion to Disqualify. The court found that there has been no misconduct that could potentially taint the litigation. And there was no type of conduct generally associated with the harsh sanction of disqualification because nothing inconsistent with an ethical wall occurred. Nobody at Quinn Emanuel had received any information regarding Mr. Reisberg's former representation of Lutron, nor would Mr. Reisberg be able to share any such information in the future because Quinn Emanuel created an ethical wall to prevent Mr. Reisberg and any personnel at the firm from sharing any information or materials relating in any way to Lutron.
