Tuesday, March 15, 2011

Hiring a Non-Lawyer With Intent to Split Fees--Summarized by Student Samantha Hamm

In the case of In the Matter of Marcea O’BRIEN-CARRIMAN, 702 S.E.2d 635 (Georgia 2010), the Georgia Supreme court disbarred attorney Marcea O’BRIEN-CARRIMAN for violating Rule 5.3; responsibilities regarding non-lawyer assistants, Rule 5.4; professional independence of a lawyer, and Rule 8.1; bar admission and disciplinary matters. Marcea O’BRIEN-CARRIMAN decided to open her own legal practice where she was involved in a business relationship with a non-lawyer and agreed to pay the non-lawyer a percentage of what she made from the cases. The relationship was ended a year later when Marcea became worried that what they were doing could be considered unauthorized practice of law, when an investigation was made of the the non-lawyer's activities. Under oath, Marcea made submissions about the fee splitting in which she lied twice about before finally admitting to the Office of General Counsel that she agreed to split the fees with the non-lawyer.This case teaches the importance of a lawyer’s duty under Rules 5.4 (a)”an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money”. Rule 8.1 (a) “shall not knowingly make a false statement of material fact”. And Rule 5.3 (b) “a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer”.

Find the case at: http://www.gasupreme.us/sc-op/pdf/s09y2049.pdf

Texas Lawyer Neglects Client’s Case--Summarized by Students Jessica Woehrle and Lisa Bailey

In Dell Edward James, Appellant, v. Commission for Lawyer Discipline, Appellee, 310 S.W.3d 598(Ct. App. Texas, 2010) Texas Appeals Court of Dallas ordered public reprimand, restitution to neglected client of $14,483.24, and also attorney fees and cost to the Commission for Lawyer Discipline for $16,522.23.
The Texas Appeals Court affirmed that neglect of a client’s case had occurred and the lawyer was in violation of Texas Disciplinary Rules of Professional Conduct Code Rules 1.03(a) and 1.03(b). The court did not find enough evidence in violation of Rule 1.02(a)(2) which states he did not accept an offer of settlement of a matter, except as otherwise authorized by law.
This case teaches the importance of the lawyer’s duty to represent a client with diligence and competence. The Texas Disciplinary Rules of Professional Conduct Code, Rule 1.03(a) states that “a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Rule 103(b) states that “a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”



Find the case at: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_10.ask+D+6460390

Monday, March 14, 2011

Judge takes the law into his own hands--Summarized by Student Israel Coleman

In the case of INQUIRY CONCERNING Judge Kenneth E. FOWLER, 696 S.E.2d 644 (Ga. 2010) , the Supreme Court of Georgia held that a judge’s pattern of misconduct, both before and after the hearing on the formal charges against him, warranted permanent removal and prohibition from judicial office based on violating Canons 1, 2, 2(a), 2(b), 3, 3(b)(2) and 3(b)(4). The Court found that Judge Fowler wrongly told criminal defendants in the Twiggs County probate court on a regular basis that proving their own innocence was their burden. He gave criminal defendants the chance to “buy out” the community service portions of their criminal sentences, and deposited monies received from defendants in a bank account. Judge Fowler then failed to inform or turn over the funds to the Twiggs County governing authority. Judge Fowler also routinely initiated and invited ex parte communications. In addition, the Judge exceeded his authority as a probate judge by disposing of criminal cases. He issued court orders against the sheriff or other lawful custodians of inmates prohibiting them from Twiggs County. He involved himself in matters before his court improperly and using the prestige of his judicial office, prevented local law enforcement from awarding “good time” to criminal defendants, in accordance with a Georgia statute. People unqualified to be interpreters served as interpreters under his supervision.

“Canon 1. Judges shall uphold the integrity and independence of the judiciary.” “Canon 2. Judges shall avoid impropriety and the appearance of impropriety in all their activities.” Canon 2(a) specifically provides that “Judges shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2(b) provides in relevant part that “Judges shall not lend the prestige of judicial office to advance the private interests of the judge or others.” “Canon 3. Judges shall perform the duties of judicial office impartially and diligently.” “Canon 3. Judges shall perform the duties of judicial office impartially and diligently.” “Canon 3(b)(2) specifically provides that “Judges shall be faithful to the law and maintain professional competence in it.” Canon 3(b)(4) Specifically provides that “Judges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to their direction and control.”

Find the case at: http://www.gasupreme.us/sc-op/pdf/s10z1144.pdf

Attorney Suspended for Representation with Conflicts of Interest--Summarized by Student Donna Munesisoumang

http://www.floridasupremecourt.org/decisions/2010/sc05-1145.pdf
In Fla. Bar v. Scott, 39 So. 3d 309 (Fla. 2010), the Florida Supreme court suspended attorney, William Sumner Scott from the practice of law and ordered him to reimburse the Bar for its cost. The court found that Scott engaged in unethical conduct when he undertook a representation when he either knows or should know of a conflict of interest prohibiting the representation. In 1995, Scott represented a client and his company in a complaint that alleged the defendants violated the registration provisions of the Commodity Exchange Act, 7 U.S.C. §§1-27f (1994), and CFTC Regulations, 17 C.F.R. §§ 1-199 (1995). The court issued preliminary injunction orders which became permanent in 1997, that prohibited the Maseri and Private Research, Inc., from contracting for the sale of any commodity. In 1998, the client hired Scott to represent him in negotiations with an investor to establish a forex brokerage company called, International Currency Exchange Corporation, (ICEC). The investor questioned Scott about his client’s integrity. Scott failed to reveal to the investor the negative information he had concerning the client that could have impacted the investor’s decision to go into business with the client. In November of 1998, the federal court entered a final judgment against the client. Florida’s District Court froze ICEC assets until released by court. Scott was retained to represent ICEC and the investor. Consequently, the interests ICEC, the client, the investor, and other individual investors were all directly adverse to one another because all had claims to the same pool of money. This case presents issues that arise regarding an attorney’s unethical conduct due to conflicts of interest. It teaches the importance of the attorney’s duty under Rule 4-1.7(a) providing that an attorney shall not represent a client if the representation of that client will be directly adverse to the interests of another client. It is also important for the attorney to comply under Rule 4-1.9(a) providing that an attorney shall not represent a client or shall withdraw where the representation will result in violation of the rules of professional conduct or law.

Florida: Lawyer Disbarred for Professional Misconduct Including Multiple Drug-Related Charges-Summarized by Student Brittany McGree

http://www.floridasupremecourt.org/decisions/2010/sc08-1375.pdf
On November 04, 2010 the Florida Supreme Court disbarred lawyer Philip David Irish due to professional misconduct charges brought against him by The Florida Bar. Professional misconduct was found due to Irish’s disregard and neglecting of his client’s cases, six drug-related felony charges, and collection of fees without providing the services needed to the clients. The Florida Supreme Court affirmed the referee’s conclusions that the lawyer was found guilty of professional misconduct by violation of the Florida Bar 3-4.2, 3-4.3, 4-1.1, 4-1.3, 4-1.4(a), 4-1.4(b), 4-1.5(a)(1), 4-3.2, 4-8.1(b), 4-8.4(b), (c), (g). Philip David Irish filed a motion for rehearing to the Supreme Court of Florida arguing that his misconduct was directly related to drug addiction which he had recovered from and that his case was similar to other cases such as Florida Bar v. Rosen, 495 So. 2d 180 (Fla. 1986) and Florida Bar v. Hochman, 815 So. 2d 624 (Fla. 2002). Irish was disbarred by the Supreme Court due to lacking of proof that he was a recovered addict and the cases in which the attempt was made to show precedents were lacking similarities. Irish was seeking help from a psychiatrist and addiction therapist but the proof of rehabilitation was lacking in that the conversations that took place between Irish and the psychiatrist were totaling of three hours of phone conversation and one brief face-to-face meeting. There was also no medical documentation of proof that he did have a clean system. The cases that were used as precedent did not relate to the case at hand due to the fact in both situations the attorneys sought help themselves before endangering any of their clients.