Utah: Attorney Breached Fiduciary Duties of Confidentiality and Loyalty

Link for opinion: http://www.utcourts.gov/opinions/supopin/USAPower051410.pdf


In USA Power, LLC v. PacifiCORP, 235 P.3d 749 (Utah 2010), the Utah Supreme Court reviewed a district court’s grant of summary judgment on three claims: misappropriation of trade secrets, breach of a confidentiality and nondisclosure agreement, and breach of an attorney's fiduciary duties of confidentiality and loyalty. The focus of this summary will be on the attorney’s breach of the fiduciary duties of confidentiality and loyalty.

The attorney was retained by USA Power in 2001 and later by PacifiCORP in 2003. USA Power argued that the attorney simultaneously represented them and defendant PacifiCORP, and disclosed confidential information to benefit PacifiCORP.

The Utah Supreme Court ruled that the district court erred when it granted summary judgment to an attorney and her law firm on USA Power’s breach of the fiduciary duty of confidentiality claim, and the lower court’s summary judgment was reversed and remanded because the district court “should have looked to whether USA Power presented evidence, either direct or circumstantial, that created a material issue” as to the attorney’s disclosure of confidential information.

The presentation of circumstantial evidence may create a real issue of material fact barring summary judgment. See Regan-Touhy v. Walgreen Co.,526 F.3d 641, 651 (10th Cir. 2008). The Utah Supreme Court held that genuine issues of material fact may be created by inferences drawn from circumstantial evidence because producing direct evidence that an attorney disclosed confidential information may be difficult for a plaintiff. Therefore, simultaneous adverse representation provides for an adequate inference of disclosure to create a genuine issue of material fact.

The Utah Supreme Court also ruled that the district court erred in granting summary judgment on the issue of the fiduciary duty of loyalty on the basis that a genuine issue of material fact caused harm to USA Power. Specifically, the attorney’s dual representation caused PacifiCORP to withdraw its interest in purchasing a power plant.

The court also concluded that PacifiCORP, a utility company, misappropriated trade secrets and breached a contract with USA Power, a power plant developer.

This case teaches the importance of the lawyer’s fiduciary duty. The elements of a claim against an attorney for breach of a fiduciary duty are " ‘(1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client.'" Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 23, 194 P.3d 931 (quoting Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct.App.1996)).

Mississippi: Lawyer Disbarred for Felony Conviction

Link for opinion: http://scholar.google.com/scholar_case?case=8119683737185704939&q=mississippi+
%2B+%22disciplinary+action%22&hl=en&as_sdt=400000000000002&as_ylo=2010


In The Mississippi Bar v. Castle, 38 So. 3d 632 (Miss 2010), the Mississippi Supreme Court disbarred a lawyer from the state’s bar association following her felony conviction in the United States District Court for the Southern District of Mississippi.

The lawyer was convicted for her involvement in a mortgage-fraud operation in which she, along with twelve others, bought inexpensive real estate through fraudulent acts and then sold the property at inflated prices. Furthermore, the co-conspirators forged documents and inflated financial information so that interested buyers who did not meet loan requirements could acquire financing. The particular lawyer’s role was to handle the loan closings for the initial purchase of the real estate as well as for the resale transactions. She also transferred money between the mortgage company and a co-conspirator and used money to pay buyers for being involved in their scheme.

The operation was uncovered when one of the prospective buyers went to the police. The lawyer was ultimately charged with bank fraud, wire fraud, conspiracy to commit money laundering, conspiracy to commit bank fraud and wire fraud, and submission of false statements. She was convicted of conspiracy to defraud the United States (count 1), frauds and swindles (counts 3-11), and money laundering (count 12). After the verdict, the lawyer was sentenced to forty-eight months for the conspiracy conviction and another forty-eight months for the frauds and swindles conviction, to be served concurrently. She was also sentenced to post-release supervision totally eight years.

Following the conviction, the Mississippi State Bar filed a formal complaint against the lawyer’s violation of Rule 6 of the Rules of Discipline for the Mississippi State Bar, with a copy of the criminal conviction attached. The lawyer did not respond.

Rule 6 states that if a lawyer is convicted of a criminal offense in and any state or federal court a certified copy of the judgment should be filed with the Supreme Court by the Complaint Counsel. Once this is done, the lawyer is immediately suspended from the practice of law. Additionally, once all appeals have been made without reversal the Court will enter an order for disbarment (Rule 6, Rules of Discipline for the Mississippi Bar).

The lawyer had exhausted all appeals and had her conviction affirmed by the appellate court, leaving the Supreme Court with no other option than to disbar her.

Michigan: Attorney General Disqualified for Representing a Judge in a Conflict of Interest Case

Link for Opinion: http://scholar.google.com/scholar_case?case=3957021689359029401&q=rules+of+professional+conduct&hl=en&as_sdt=80000004&as_ylo=2010

In People v. Waterstone, 486 Mich. 942, 783 N.W.2d 314 (2010), the court of appeals directed the Attorney General to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct 1.9 and 1.10. In this case, the Attorney General brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others. The Attorney General’s office assigned an assistant Attorney General from the Public Employment, Elections and Tort Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the Attorney General agreed to prosecute the cases.

The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client. In this case, the Attorney General’s office was a “firm” under Michigan Rules of Professional Conduct 1.10. This means that the Attorney General’s office should have conducted a conflict check before getting involved with the case. Even though the assistant Attorney General involved in the prosecution did not have actual knowledge of the Attorney General’s former representation of the judge, the court held that “prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances.” Because a simple conflict check would have revealed the federal lawsuit, the Attorney General should have obtained the consent of the former client before taking the case. Further, the Attorney General’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the Attorney General was still representing her when an investigator from the Attorney General’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the Attorney General to withdraw from prosecuting the judge in the criminal matter.

Maine Lawyer’s Inappropriate Advances Leads to Suspension, Possible Disbarment

Link of Opinion: http://www.courts.state.me.us/court_info/opinions/documents/Bar-09-14Pongratz6-8-10.pdf


In Board of Overseers of the Bar v. Pongratz, BAR-09-14 (June 8, 2010) (Levy, J.), the Maine Supreme Judicial Court suspended the lawyer for 18 months (subject to other terms and conditions), after questioning his “ability to achieve the level of professionalism required” of an attorney, along with his failure to exercise reasonable care, skill and judgment, and for wrongfully asserting a lien against a client’s file.

The Maine Supreme Judicial Court affirmed the Maine Bar of Overseers conclusions that the lawyer’s inappropriate sexual advances toward a client was in violation of Maine Bar Rule 3.6(a), and the assertion of a lien on a client's file in order to secure payment of a fee is in violation of Maine Bar Rule 3.7(c)(1).

The lawyer’s failure to exercise reasonable care, and “interjecting his own needs and desires” into the attorney-client relationship, “while simultaneously providing representation and advice,” purposely loses the “trust and confidence” of a client. This, along with the lawyer’s history of a hiding the truth about his federal felony charge prior to admittance to the bar, and his recent actions, brought into question the lawyer’s “capacity to maintain the level of professionalism required of members of the Bar.”

This case teaches the importance of the lawyer’s duty under Maine Bar Rule 3.6(a) that states “a lawyer must employ reasonable care and skill and apply the lawyer's best judgment in the performance of professional services.” In addition, Maine Bar Rule 3.7(c)(1) states a “does not authorize an attorney to assert a lien on a client's file in order to secure payment of a fee.”

Louisiana: Lawyer Disbarred for Tax Fraud and Misrepresentation to Clients

Link for opinion: http://www.lasc.org/opinions/2010/10B0593.pc.pdf

In re Thomas, 38 So. 3d 248 (La. 2010), the Louisiana Supreme Court permanently disbarred a lawyer for repeatedly committing tax fraud and making false statements to clients. This followed the lawyer’s release from a thirty-six month prison term for previous tax evasion and misrepresentation charges.

The Louisiana Supreme Court affirmed that the lawyer was knowingly dishonest to clients and attempted to defraud the government by filing a false tax return and failing to pay taxes. The lawyer also displayed a pattern of misconduct to paying clients and the profession of law. The lawyer violated Louisiana Rules 8.4(b) and (c) of the Rules of Professional Conduct.

The lawyer also failed to pay restitution, and failed to admit to misrepresenting the clients. The court agreed that the lawyer intentionally deceived the Internal Revenue Service and the clients by not abiding by the Louisiana Rules of Professional Conduct and for filing a false tax return in violation of 26 U.S.C. § 7206(1).

This case demonstrates the importance of the lawyer’s duty under Louisiana Rule 8.4(b)(c) that states a lawyer shall not “commit a criminal act especially one that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In addition, the rule states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Iowa: Lawyer Suspended for Neglecting Client Matters

Link to opinion: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20100423/09-1074.pdf

In Iowa Supreme Court Atty. Disc. v. Hoglan, 781 N.W.2d 279 (2010), the Iowa Supreme Court suspended the license of an attorney for thirty days for his failure to file appeals in three separate cases and for his failure to perfect an administrative appeal. All four instances of neglect resulted in harm to the clients by costing them their cases. The lawyer admitted guilt in all four claims, but claimed he had health problems with his back due to a degenerative condition and had several surgeries during the period of time the incidents occurred, which contributed to his neglect.

The claims against the attorney were previously reviewed by the grievance commission; upon finding the attorney guilty of all four counts, the commission recommended a public reprimand. The court considered whether that punishment was appropriate given the nature of the attorney’s actions and the number of complaints.
The Iowa Supreme Court affirmed the commission’s conclusions that the attorney’s failure to practice reasonable promptness in all four counts violated Iowa R. Prof. Conduct 32:1.3; concluded his failure to withdraw representation due to physical malady violated rule 32:1.16(a)(2);concluded his failure to expedite litigation violated 32:3.2; concluded he violated ethical rules 32:8.4(a); and concluded his conduct was prejudicial to the administration of justice, violating rule 32:8.4(d).
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) states punishment of attorney neglect requires the court make a stricter punishment when there are multiple instances of neglect. While accepting the commission’s finding of neglect, the court determined a stricter punishment than public reprimand was warranted due to the fact the attorney was responsible for more than one instance of neglect. Moreover, Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001) claims stricter punishment is necessary when a client suffers harm due to attorney neglect. In this case, the attorney’s neglect led to client losses in all four instances, and the court determined the stricter punishment was appropriate. Finally, because the court determined the attorney’s back problems were a mitigating cause to his neglect, citing Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006), beyond the thirty-day suspension, the court required the attorney to provide a physical evaluation from a doctor claiming he was physically fit enough to provide counsel before his suspension could be ended.

Connecticut: Attorney Convicted of Larceny in the First Degree by Embezzlement

Link for opinion: http://caselaw.findlaw.com/ct-court-of-appeals/1141851.html

In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.

The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).

On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.

The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5.  “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”

This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.

Connecticut: Attorney Convicted of Larceny in the First Degree by Embezzlement

Student Name: Kayla Dropik

Link for opinion: http://caselaw.findlaw.com/ct-court-of-appeals/1141851.html

In State v. Ankerman 81 Conn. App. 503; 840 A.2d 1182 (Conn. 2004), the Connecticut Appellate Court
convicted an attorney of larceny in the first degree by embezzlement for checks being drawn out of a client’s trust account payable to himself or to his practice.

The Connecticut Appellate Court affirmed the judgment of the trial court’s conclusions that the attorney convicted a crime of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-119(1) and 53a-122(a)(2).

On July 6, 1998, the attorney wrote a letter to the statewide grievance committee, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing. The committee then commenced a complaint against the attorney and presented it to the Superior Court. After a hearing, the court suspended the attorney from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn.App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003). On April 8, 1999, the attorney testified before a grievance panel that he was deeply sorry that he breached his duty as an attorney after jury trial defendant was convicted and sentenced.

The attorney has raised twelve issues in his brief which several claims of error were not preserved properly. He has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5.  “It is well established that generally this court will not review claims that were not properly preserved in the trial court․ The defendant's failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned․ Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice․ Accordingly, we decline to review his unpreserved claim.”

This case teaches the importance of the attorney’s duty under Rule 8.3(a) 7 of the Rules of Professional Conduct, that a lawyer knowing of the dishonesty of another lawyer must inform the appropriate disciplinary authority, required that he reports his own dishonesty.

Texas: Lawyer Sued for Failing to Appeal for a Client after JNOV

Link for the opinion – the link to the opinion cannot be obtained from the state court website but can be viewed here: http://www.leagle.com/xmlResult.aspx?xmldoc=19901052786SW2d266_11007.xml&docbase=CSLWAR2-1986-2006


In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.

The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.

Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.

This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.

Missouri: Lawyer Suspended for Violating Rules of Professional Conduct

Link for opinion: http://www.courts.mo.gov/file.jsp?id=34349

In In re Coleman, 295 S.W.3d 857, 2009 Mo. LEXIS 468 (Mo. 2009), the Missouri Supreme Court suspended a lawyer’s license, stays execution of the suspension and places the lawyer on probation for one year with certain requirements.

The Missouri Supreme Court determined the lawyer knowingly made decisions without the clients consent in violation of Mo. Sup. Ct. R. 4-1.2(a) and created a conflict of interest in violation of Mo. Sup. Ct. R. 4-1.7. The lawyer also failed to keep personal funds separate in violation of Mo. Sup. Ct. R. 4-1.15(c) and failed to adhere to adequate termination of representation in violation of Mo. Sup. Ct. R. 4-1.16. By violating rules of professional misconduct, he also violated Mo. Sup. Ct. R. 4-8.4(a) and 8.4(d).

The lawyer also failed to withdraw after creating a conflict of interest with his client and failed to respond to a request of information so the plaintiff could secure new counsel for further cases. The lawyer is reluctant to accept that his actions are improper and prohibited. The court held that an attorney has ethical duties to the client and must not deviate from the rules of professional conduct when representing a client.

This case shows the importance of the lawyer’s duty to follow the rules of professional conduct when representing a client under Rule 4-1.2(a) that states “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Additionally, Rule 4-1.7 states “a lawyer shall not represent a client if the representation of that client may be materially limited…by the lawyer’s own interest.”

Maryland: Attorney Suspended for Making Knowingly False Statements

Link for opinion: http://mdcourts.gov/opinions/coa/2010/3a09ag.pdf

In Atty. Griev. Comm'n of Md. v. Brown, Misc. Docket AG No. 3, September Term, 2009, COURT OF APPEALS OF MARYLAND, 2010 Md. LEXIS 330, July 27, 2010, Filed, The Attorney Grievance Commission of Maryland (AGC) suspended a lawyer for 90 days for making knowingly false statements to the AGC and to his client, and for drawing a check on the client’s trust account.

The AGC confirmed the hearing judge’s assessment that the lawyer knowingly made false statements to the AGC and to his client violating Maryland Rules of Professional Conduct 4.1(a)(1), MRPC 8.1(a), MRPC 8.4(c) and (d), and that drawing a check on the client’s trust account violated Maryland Rule 16-609.

The attorney had knowingly made false statements three times—once to his client and twice to the AGC when the client asked them to investigate the situation. Because of the nature of his misconduct the court wanted to suspend the attorney for one year, and the attorney requested only 60 days stating that prior cases involved deceitful attorneys with additional misconduct. After weighing the mitigating factors of the case, the court agreed that 90 days was appropriate.

This case shows us the importance of the lawyer’s duty under Rule 4.1(a)(1) which states that “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law.” In addition, Rule 8.4(c) and (d) states that “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “engage in conduct that is prejudicial to the administration of justice…”

Two Iowa Supreme Court Decisions Involve Sex Offense Allegations

Link for the opinion: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20070921/07-0507.pdf

In Iowa Supreme Court Atty. Disciplinary Board v. Blazek, 739 N.W. 2d 67, 2007 Iowa Sup. Lexis 115 (Iowa, 2007), the Iowa Supreme Court revoked a lawyer’s license and convicted said lawyer on four felony charges of sexual misconduct with children and sentenced him to 235 months in jail.

In 2006 the Iowa Supreme Court filed a complaint against Michael Blazek stating he violated the Iowa Code of Professional Responsibility for Lawyers Rule DR 1-102(A)(1)-A lawyer should not violate a disciplinary rule; Rule DR 1-102(A)(3)-an attorney should not involved themselves in moral misconduct; and Rule DR 1-102(A)(6)-an attorney should not engage in acts that reflect on the practice of law.

Blazek engaged in a conversation in a “male for male” chat room with whom he believed to be a 15 year- old boy. After 15 months of conversing with this boy, “Brian”, the conversations became increasingly sexual in nature and the two arranged to meet October 26th in Chicago. “Brian” was actually an Inspector with the Chicago Police investigating sex crimes. When Blazek arrived to meet the boy, he was arrested, his apartment searched, and computer seized with hundreds of photographs and movies of child pornography.

This was not Blazek’s first conviction. He pled guilty in 1997 to a felony charge of knowingly have sexual misconduct with a child under twelve and had his license suspended for two years.

This case teaches the importance of an attorney’s duty under Rule DR 1-102(A)(1), section (A)(3), and section(A)(6) to not violate a disciplinary rule and involve themselves in moral misconduct that reflects the practice of law.

“Georgia: The court responds to a petition for voluntary discipline by a lawyer who admits to submitting falsified documents in a pro se case.”

Link: http://www.gasupreme.us/sc-op/pdf/s10y0981.pdf

In re Manning-Wallace 695 S.E.2d 237, the court rejected a petition for voluntary discipline of a Georgia Lawyer, Manning-Wallace who knowingly submitted falsified documents in a pro se case. The Bar Association of Georgia accepted the petition for voluntary panel review, but the court decided that the reprimand was not appropriate for violating both Rule 3.3 (a) (4) and 3.4 (b) (1) of the Georgia Rules of Professional Conduct.
The facts show that Manning-Wallace was in a 2003 car accident that resulted in injuries for which medical bills were incurred. While representing herself, the Manning-Wallace knowingly submitted statements of bills that were later proven to be fraudulent by the medical facility that the alleged medical care took place. Although Manning-Wallace claims to have known that the documents were false at the time of submission, she denies ever “creating” them.
Rule 3.3 of the Georgia Rules of Professional Conduct, provides specifically that "[a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false." This implies that although Manning-Wallace may not be guilty of actually fabricating documents, she was still aware of their invalidity at the time of submission and therefore in violation of Rule 3.3.
Rule 3.4 (b) (1) of the Georgia Rules of Professional Conduct, provides that “lawyers owe a similar duty of fairness to opposing parties and their counsel, which specifically includes the obligation not to ‘falsify evidence.’” This specifically illustrates that Manning-Wallace breached the duty of fairness to opposing counsel by knowingly submitting falsified documents.
The maximum punishment for violating both Rule 3.3 and 3.4 of the Georgia Rules of Professional Conduct is disbarment, therefore the courts overrules the State of Georgia Bar Association’s decision to accept the petition for voluntary discipline.

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.

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.”

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”.

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…”.

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.

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.

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

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