Link of Case: http://web2.westlaw.com/result/default.wl?tc=1&sv=Split&service=KeyCite&scxt=WL&tf=507&rlti=1&cxt=RL&n=1&mt=Westlaw&fn=_top&vr=2.0&rlt=CLID_FQRLT709516122711&rp=%2fKeyCite%2fdefault.wl&cite=133+P.3d+514&cnt=DOC&rs=WLW10.10&ss=CNT
In Wyoming State Bar v. Fulton, JoAnn Fulton, an attorney for the State of Wyoming was suspended from practicing Law according to the Wyoming State Bar Association. She was found to be in violation of various disciplinary codes of the Wyoming State Bar. She is appealing the decision to the Wyoming Supreme Court, claiming the order is inappropriate for the actions.
According to the complaint, the Wyoming State Bar claims the defendant violated Rule of Professional Conduct 1.5(a), when she included a paralegal time in the bill in regards to a contingency fee already charged to the client, in a percentage form. They also claimed Mrs. Fulton violated Rules 5(e) and Rule 6 of the Rules governing Contingency Fees when she failed to provide a client with the Rules, and the Representation Agreement did not comply with the rules. She violated Rule 6 when she fails to seek approval for the change in the documentation. The complaint states that the incident occurred on multiple occasions. Mrs. Fulton also violated Rule 1.1 when she filed a suit without merit, as well as informing clients that interest on settlement funds were not taxable if the she kept the funds.
The attorney, JoAnn Fulton was ordered to pay a fine to the State of Wyoming Bar Association for reimbursement for the costs associated with the case. She was also ordered that her license to practice law in the State of Wyoming be suspended for a time no less than 3 years, and that the actions be documented with the State Bar Association.
This case sets an example for all attorneys practicing law the importance of knowing the Rules of Conduct and abiding by the rules in order to appropriately do business in a legal way. It also shows the harsh punishment involved when attorneys fail to abide by the rules.
Tuesday, November 30, 2010
Wisconsin: Employer brings action against employees
http://www.wisspd.org/html/980case/casesum/AppealsPP.htm
In 779 N.W.2d 19 (Wis, 2010), the Court of Appeals of Wisconsin imposed a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. S.C. Johnson and Son claimed that his employees Buske invited bribes and kick-backs from transportation companies and, in exchange, submitted inflated invoices to employer on behalf of those transportation companies. A $203.8 million verdict in S.C. Johnson's favor was reached after substantial discovery, a four-week jury trial, and a series of motions brought before, during, and after the trial and verdict.
Wisconsin’s Court of Appeals affirmed that in issue of apparent first impression, representative of transportation company could not withdraw privilege against self-incrimination shortly before trial; in issue of apparent first impression, victim of intentional tort has no duty to mitigate damages unless it has actual knowledge of tort; corporation did not have actual knowledge of conspiracy; in issue of apparent first impression, double damages on whole award pursuant to Wisconsin Organized Crime Control Act (WOCCA) was proper; jury verdict was not perverse; jury verdict was not fatally defective; court acted within its discretion in admitting portions of redacted affidavits from reports of two federal law enforcement agents; and evidence that a nonparty transportation company hired friend of defendant was relevant.
The first issue concerns a party's continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party's theory of the case has been established. Second, this action alleged the intentional torts of fraud and misrepresentation. And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?
In 779 N.W.2d 19 (Wis, 2010), the Court of Appeals of Wisconsin imposed a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. S.C. Johnson and Son claimed that his employees Buske invited bribes and kick-backs from transportation companies and, in exchange, submitted inflated invoices to employer on behalf of those transportation companies. A $203.8 million verdict in S.C. Johnson's favor was reached after substantial discovery, a four-week jury trial, and a series of motions brought before, during, and after the trial and verdict.
Wisconsin’s Court of Appeals affirmed that in issue of apparent first impression, representative of transportation company could not withdraw privilege against self-incrimination shortly before trial; in issue of apparent first impression, victim of intentional tort has no duty to mitigate damages unless it has actual knowledge of tort; corporation did not have actual knowledge of conspiracy; in issue of apparent first impression, double damages on whole award pursuant to Wisconsin Organized Crime Control Act (WOCCA) was proper; jury verdict was not perverse; jury verdict was not fatally defective; court acted within its discretion in admitting portions of redacted affidavits from reports of two federal law enforcement agents; and evidence that a nonparty transportation company hired friend of defendant was relevant.
The first issue concerns a party's continuous invocation of the Fifth Amendment privilege against self-incrimination in a civil action where that party later waives the privilege in the middle of trial when all discovery and preparation for trial is complete and the other party's theory of the case has been established. Second, this action alleged the intentional torts of fraud and misrepresentation. And third, is the multiple damages provision of the Wisconsin Organized Crime Control Act (WOCCA) remedial such that the entire damage award is doubled?
West Virginia: Lawyer’s License Annulled for Misrepresentation of a Prisoner
Link for opinion: http://www.state.wv.us/wvsca/docs/Spring10/34257.pdf
In the case of G. Patrick Stanton, JR., 695 S.E.2d 901 (W.Va. 2010), the Supreme Court of West Virginia annuls the lawyer’s license for deceit, dishonesty and misrepresentations of himself to gain access to an incarcerated former client for inappropriate misconduct.
The Supreme Court sanctioned the Board’s recommendations of rule violations for conducting misrepresentation of himself as stated in W. Virginia RPC 8.4(c); acting detrimental to the administration of justice as stated in W. Virginia RPC 8.4(d); and engaging in sexual relations with a client as stated in W. Virginia RPC 8.4(g).
The lawyer claimed to officers that he was the representing counsel for Ms. Auvil while she was incarcerated. He dishonestly used the misrepresentation to gain access to Ms. Auvil so they could have sexual relations. Ms. Auvil was also receiving monetary remunerations in exchange for the sexual activities between the respondent and herself. The court held that the Respondent’s misconduct demonstrated his dishonesty, deceit and lack of judgment and also calls into the question of his “fitness as a member of the Bar”. See also In re Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) and In re Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
This case teaches the importance of honesty and proper representation under Rule 8.4(c) that states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Also stated in W.Va. Rules of Conduct 8.4(g), it is professional misconduct for a lawyer to “have sexual relations with a client whom the lawyer personally represents during the legal representation…”
In the case of G. Patrick Stanton, JR., 695 S.E.2d 901 (W.Va. 2010), the Supreme Court of West Virginia annuls the lawyer’s license for deceit, dishonesty and misrepresentations of himself to gain access to an incarcerated former client for inappropriate misconduct.
The Supreme Court sanctioned the Board’s recommendations of rule violations for conducting misrepresentation of himself as stated in W. Virginia RPC 8.4(c); acting detrimental to the administration of justice as stated in W. Virginia RPC 8.4(d); and engaging in sexual relations with a client as stated in W. Virginia RPC 8.4(g).
The lawyer claimed to officers that he was the representing counsel for Ms. Auvil while she was incarcerated. He dishonestly used the misrepresentation to gain access to Ms. Auvil so they could have sexual relations. Ms. Auvil was also receiving monetary remunerations in exchange for the sexual activities between the respondent and herself. The court held that the Respondent’s misconduct demonstrated his dishonesty, deceit and lack of judgment and also calls into the question of his “fitness as a member of the Bar”. See also In re Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) and In re Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
This case teaches the importance of honesty and proper representation under Rule 8.4(c) that states that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Also stated in W.Va. Rules of Conduct 8.4(g), it is professional misconduct for a lawyer to “have sexual relations with a client whom the lawyer personally represents during the legal representation…”
Virginia: Attorney claims that because he was a suspended lawyer, the rules of professional conduct do not apply to him, and that his equal protection
Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/
In Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), violations occurred in the course of prolonged litigation between an attorney, Barrett, and his former wife, in which the attorney represented himself. Barrett repeatedly asserted that, because his ex-wife was awarded sole legal and physical custody of the children, he was no longer responsible for the payment of any support for them under Va. Code § 20-108.2. The state supreme court held that the panel had jurisdiction to apply the rules professional conduct to the attorney in his suspended status. Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice had been suspended. Accordingly, his argument that applying the Rules to him violated the Equal Protection Clause was rejected. Because the attorney's argument that he was no longer required to support his children was completely frivolous, he was properly disbarred for violating Rule 3.1.
Barrett argued that "applying the Rules of Professional Conduct to him while exercising his fundamental and inalienable right to represent himself burdens him with additional strictures that do not bind any other litigant under the exact same circumstances, a burden that is forbidden by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution." Barrett argued further that "while the Equal Protection Clause does not forbid government classifications, it does keep government decision makers from treating differently persons who are in all relevant respects alike."
However, as the Panel noted in its order disbarring Barrett, an attorney representing himself is not alike in all aspects to a pro se non-lawyer litigant by virtue of the fact that the lawyer is a lawyer and is so by choice." Lawyers whose licenses to practice have been suspended are of a class unto themselves and they are subject to the Rules of Professional Conduct while non-lawyers who represent themselves are of an entirely different class and not subject to the Rules.
The important consideration was whether a lawyer whose license to practice had been suspended is treated like other lawyers whose licenses have been suspended. This Court noted in a previous case involving a claim that an act of the General Assembly violated the Equal Protection Clause that "an act is not invalid if within the sphere of its operation all persons subject to it are 'treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'" Bryce v. Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933).
Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice have been suspended. Accordingly, the court rejected his argument that applying the Rules to him violated the Equal Protection Clause.
The court held that for Barrett to assert persistently and repeatedly in the Circuit Court of Grayson County and in the Court of Appeals of Virginia that he was no longer required to support his children is completely frivolous, in light of the facts and the law of this case. Accordingly, the court affirmed the Panel's order revoking Barrett's license to practice law in his Commonwealth.
In Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), violations occurred in the course of prolonged litigation between an attorney, Barrett, and his former wife, in which the attorney represented himself. Barrett repeatedly asserted that, because his ex-wife was awarded sole legal and physical custody of the children, he was no longer responsible for the payment of any support for them under Va. Code § 20-108.2. The state supreme court held that the panel had jurisdiction to apply the rules professional conduct to the attorney in his suspended status. Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice had been suspended. Accordingly, his argument that applying the Rules to him violated the Equal Protection Clause was rejected. Because the attorney's argument that he was no longer required to support his children was completely frivolous, he was properly disbarred for violating Rule 3.1.
Barrett argued that "applying the Rules of Professional Conduct to him while exercising his fundamental and inalienable right to represent himself burdens him with additional strictures that do not bind any other litigant under the exact same circumstances, a burden that is forbidden by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution." Barrett argued further that "while the Equal Protection Clause does not forbid government classifications, it does keep government decision makers from treating differently persons who are in all relevant respects alike."
However, as the Panel noted in its order disbarring Barrett, an attorney representing himself is not alike in all aspects to a pro se non-lawyer litigant by virtue of the fact that the lawyer is a lawyer and is so by choice." Lawyers whose licenses to practice have been suspended are of a class unto themselves and they are subject to the Rules of Professional Conduct while non-lawyers who represent themselves are of an entirely different class and not subject to the Rules.
The important consideration was whether a lawyer whose license to practice had been suspended is treated like other lawyers whose licenses have been suspended. This Court noted in a previous case involving a claim that an act of the General Assembly violated the Equal Protection Clause that "an act is not invalid if within the sphere of its operation all persons subject to it are 'treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'" Bryce v. Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933).
Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice have been suspended. Accordingly, the court rejected his argument that applying the Rules to him violated the Equal Protection Clause.
The court held that for Barrett to assert persistently and repeatedly in the Circuit Court of Grayson County and in the Court of Appeals of Virginia that he was no longer required to support his children is completely frivolous, in light of the facts and the law of this case. Accordingly, the court affirmed the Panel's order revoking Barrett's license to practice law in his Commonwealth.
Vermont: Lawyers Reprimanded for Falsely Denying Recording Telephone Conversation
Link for opinion: http://scholar.google.com/scholar_case?case=1249575276007621696&q=989+A.2d+523&hl=en&as_sdt=100000002&as_ylo=2009
In In Re PRB Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, the Vermont Supreme Court privately reprimanded two attorneys for falsely denying to a witness that the telephone conversation was being recorded.
Respondent attorneys were partners in a law practice and represented a client in a criminal matter. A potential witness contacted the attorneys, claiming to have information showing the client’s innocence. The attorneys arranged an interview by telephone and to record the call. During the call, the potential witness asked the attorneys whether they were recording the conversation. One attorney said “No,” and the other attorney added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both attorneys.
The Vermont Supreme Court affirmed the hearing panel’s decision that the attorneys had violated Rule 4.1 which states "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person", but had not violated Rule 8.4(c) which establishes that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
In flatly denying to the witness that the call was being recorded, the attorney knowingly made a false statement. The other attorney then attempted to distract the witness from the issue with a statement about using a speaker phone. See V.R.Pr.C. 4.1 cmt. ("A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act."). See also Miss. Bar v. Att'y ST, 621 So.2d 229, 233 (Miss.1993).
Rule 8.4(c) is to be interpreted to reach only conduct that calls into question an attorney's fitness to practice law. Because the attorneys’ dishonesty does not reflect on their fitness to practice law, the Court affirms the decision of the hearing panel.
In In Re PRB Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, the Vermont Supreme Court privately reprimanded two attorneys for falsely denying to a witness that the telephone conversation was being recorded.
Respondent attorneys were partners in a law practice and represented a client in a criminal matter. A potential witness contacted the attorneys, claiming to have information showing the client’s innocence. The attorneys arranged an interview by telephone and to record the call. During the call, the potential witness asked the attorneys whether they were recording the conversation. One attorney said “No,” and the other attorney added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both attorneys.
The Vermont Supreme Court affirmed the hearing panel’s decision that the attorneys had violated Rule 4.1 which states "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person", but had not violated Rule 8.4(c) which establishes that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
In flatly denying to the witness that the call was being recorded, the attorney knowingly made a false statement. The other attorney then attempted to distract the witness from the issue with a statement about using a speaker phone. See V.R.Pr.C. 4.1 cmt. ("A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act."). See also Miss. Bar v. Att'y ST, 621 So.2d 229, 233 (Miss.1993).
Rule 8.4(c) is to be interpreted to reach only conduct that calls into question an attorney's fitness to practice law. Because the attorneys’ dishonesty does not reflect on their fitness to practice law, the Court affirms the decision of the hearing panel.
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)).
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)).
Lawyer disbarred after failing to pay back client
Link for opinion: http://www.supreme.courts.state.tx.us/ebriefs/files/20100608.htm
In Joan Myers v. Commission for lawyer discipline, the lawyer Joan Myers was disbarred and ordered to pay attorneys fees and direct expenses in the amount of $7,616.06, after she broke TDRPC 1.03(a), 1.14(a), and 1.14(b) in the Texas TDRPC.
Myers knowingly put a clients fund into her own bank account and did not leave it in a separate trust or escrow account. She also did not maintain any records of the money that she acquired from her client. Along with failure to hold the funds in a separate account she also neglected to notify the client when she received funds in which a client has an interest, failure to promptly deliver funds, and failure to render fill accounting upon request. Myers also failed to keep her client reasonably informed and failed to respond to requests for information.
This case teaches us the importance of updating our clients promptly and efficiently. We need to make sure that our clients have as much information on what is going on in their case as they need to. We also need to know the importance of keeping separate accounts when they are going to generate interests for the clients and to keep records of everything that has to do with the case. Making sure that a client is informed is quite possibly the most important thing within our legal system. Within the Texas rule 1.03(a), it states a “failure to keep a client reasonably informed and promptly comply with reasonable requests for information.” You have to keep your client up to speed on everything. With the other two Texas rules 1.14(a) and (b) you must keep your clients money in a separate account and maintain the records of that account.
In Joan Myers v. Commission for lawyer discipline, the lawyer Joan Myers was disbarred and ordered to pay attorneys fees and direct expenses in the amount of $7,616.06, after she broke TDRPC 1.03(a), 1.14(a), and 1.14(b) in the Texas TDRPC.
Myers knowingly put a clients fund into her own bank account and did not leave it in a separate trust or escrow account. She also did not maintain any records of the money that she acquired from her client. Along with failure to hold the funds in a separate account she also neglected to notify the client when she received funds in which a client has an interest, failure to promptly deliver funds, and failure to render fill accounting upon request. Myers also failed to keep her client reasonably informed and failed to respond to requests for information.
This case teaches us the importance of updating our clients promptly and efficiently. We need to make sure that our clients have as much information on what is going on in their case as they need to. We also need to know the importance of keeping separate accounts when they are going to generate interests for the clients and to keep records of everything that has to do with the case. Making sure that a client is informed is quite possibly the most important thing within our legal system. Within the Texas rule 1.03(a), it states a “failure to keep a client reasonably informed and promptly comply with reasonable requests for information.” You have to keep your client up to speed on everything. With the other two Texas rules 1.14(a) and (b) you must keep your clients money in a separate account and maintain the records of that account.
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