Here is another installment of the on-going series on how not to practice law. In this new case, a lawyer was disbarred for, among other things, stealing money from clients. That's not newsworthy, of course, since that is the typical sanction for misappropriation (although I just posted a story about a case in which the attorney unjustifiably in my opinion, got away with a lesser sanction). What is interesting about this particular case is the explanation given by the lawyer "in his defense."
In response to charges of theft of estate funds, the attorney testified
that he used the funds because he needed them for his business operations in difficult times and that it was all due to "the worst financial crisis in our
nation's history." In other words, he claimed he stole the client's money because the economy was bad and he needed the money. The court said the lawyer's testimony can only be characterized as "a lame attempt to rationalize his theft." I agree. If you think that argument is going to help your case, you better look for another
line of work. Oh, wait!, you do need to look for another line of work
because you just got disbarred!
You can read the full opinion here.
Sunday, October 7, 2012
Lawyer steals money from clients but does not get disbarred because he had been in the military; I don't get the connection
The Legal Profession blog is reporting on a recent opinion from the Ohio Supreme Court in which an attorney was indefinitely suspended for violations of the Rules
of Professional Conduct in his dealings with more than 20 bankruptcy clients including the fact that the attorney accepted fee advances from those clients but deposited the
unearned fees in his office operating account and spent the clients’ funds on personal and office
expenses without performing the legal services for which he had been
retained. In other words, that he stole client's money.
You would think this is not newsworthy since stealing from clients is essentially the easiest way to get disbarred, right? But that is the strange thing. Here, the attorney was not disbarred. There is a distinction between indefinite suspension (a suspension that can be lifted) and disbarment (which, at least in theory, is permanent).
What made the difference in this case? In imposing an indefinite suspension rather than permanent disbarment, the court noted as mitigating factors that the attorney had served in the U.S. Air Force for 20 years, expressed sincere remorse and accepted full responsibility for his actions, cooperated with disciplinary authorities, and was making ongoing attempts to make restitution to his clients. You can read the opinion here.
I don't understand this. The lawyer has admitted that he stole money from clients in multiple instances but he doesn't get disbarred (which the court says is the proper sanction for misappropriation) because he is a veteran? What does military service have anything to do with anything? With all due respect to the members of the military all of whom should be admired for their courage, why should military service operate as a mitigating factor and not other kinds of service? What if a lawyer had been a nurse for 20 years before going to law school, or a high school teacher or a firefighter? How do we make the distinction?
I just don't think past military service is relevant at all. The lawyer may have served the country admirably for 20 years in the past, but now he was stealing money from clients. He should have been disbarred.
You would think this is not newsworthy since stealing from clients is essentially the easiest way to get disbarred, right? But that is the strange thing. Here, the attorney was not disbarred. There is a distinction between indefinite suspension (a suspension that can be lifted) and disbarment (which, at least in theory, is permanent).
What made the difference in this case? In imposing an indefinite suspension rather than permanent disbarment, the court noted as mitigating factors that the attorney had served in the U.S. Air Force for 20 years, expressed sincere remorse and accepted full responsibility for his actions, cooperated with disciplinary authorities, and was making ongoing attempts to make restitution to his clients. You can read the opinion here.
I don't understand this. The lawyer has admitted that he stole money from clients in multiple instances but he doesn't get disbarred (which the court says is the proper sanction for misappropriation) because he is a veteran? What does military service have anything to do with anything? With all due respect to the members of the military all of whom should be admired for their courage, why should military service operate as a mitigating factor and not other kinds of service? What if a lawyer had been a nurse for 20 years before going to law school, or a high school teacher or a firefighter? How do we make the distinction?
I just don't think past military service is relevant at all. The lawyer may have served the country admirably for 20 years in the past, but now he was stealing money from clients. He should have been disbarred.
Saturday, October 6, 2012
Judge found guilty of judging a defendant and imposing sentence without trial
Just when you think you have seen (or heard) it all... Here is a report on something I had not heard before, other than at the movies. Remember that movie The Star Chamber in which Michael Douglas plays a judge who gets together with other judges to decide cases on their own and then impose their own kind of vigilante justice?
Well, here is a report of a case in which the New York State Commission on Judicial Conduct accepted a 122 page stipulation that resulted in the resignation of a judge. Among other things, it was determined that the judge found a defendant guilty without a plea or trial and imposed sentence without giving the defendant an opportunity to contest charges. I have to say, I don't think I had heard of a judge doing that before.
Thanks to the Legal Profession blog for the report.
Well, here is a report of a case in which the New York State Commission on Judicial Conduct accepted a 122 page stipulation that resulted in the resignation of a judge. Among other things, it was determined that the judge found a defendant guilty without a plea or trial and imposed sentence without giving the defendant an opportunity to contest charges. I have to say, I don't think I had heard of a judge doing that before.
Thanks to the Legal Profession blog for the report.
Friday, October 5, 2012
How not to practice law: bring your recreational drugs to court, then drop them in the middle of court in front of a police officer
Lowering the Bar (here) and Prof. Jonathan Turley (here) are reporting today on a story about a New Orleans prosecutor who recently resigned after he dropped some marijuana out of his pocket in the middle of court in front of a police officer. In this case, the incident cost the prosecutor his job. Should he be disciplined too? If so, what sanction would you impose?
These questions raise the issue of whether violating the law, in and of itself, regardless of what the law is, is a punishable offense for professional responsibility purposes. There has always been some debate as to whether courts are consistent when imposing sanctions for illegal conduct. Often, violations of tax laws are treated leniently, while misappropriation (ie, stealing) violations are dealt with harshly. DUIs, sexual misconduct, misdemeanor shoplifting and others are somewhere in between. Part of the analysis has to do with the danger posed to others and whether the "others" involve children or other vulnerable people who are less likely to be able to protect themselves, or whether the illegal conduct involves a so-called "victimless" crime. (It is debatable whether there is such a thing as a "victimless crime", but that is another story.)
I think there is something to say about taking into account the circumstances and the character of the conduct. I do disagree with the cases that impose the lightest of sanctions for illegal conduct, but I don't think that all illegal conduct is of the same character or that disbarment is always the proper sanction. I also think it is important whether the conduct is an isolated incident and whether the person would benefit from counseling or treatment, particularly if it is a case of addiction.
Go here, here and here for three recent examples of cases on the issue of appropriate sanctions for illegal conduct. For many more, click on "sanctions" and scroll down.
These questions raise the issue of whether violating the law, in and of itself, regardless of what the law is, is a punishable offense for professional responsibility purposes. There has always been some debate as to whether courts are consistent when imposing sanctions for illegal conduct. Often, violations of tax laws are treated leniently, while misappropriation (ie, stealing) violations are dealt with harshly. DUIs, sexual misconduct, misdemeanor shoplifting and others are somewhere in between. Part of the analysis has to do with the danger posed to others and whether the "others" involve children or other vulnerable people who are less likely to be able to protect themselves, or whether the illegal conduct involves a so-called "victimless" crime. (It is debatable whether there is such a thing as a "victimless crime", but that is another story.)
I think there is something to say about taking into account the circumstances and the character of the conduct. I do disagree with the cases that impose the lightest of sanctions for illegal conduct, but I don't think that all illegal conduct is of the same character or that disbarment is always the proper sanction. I also think it is important whether the conduct is an isolated incident and whether the person would benefit from counseling or treatment, particularly if it is a case of addiction.
Go here, here and here for three recent examples of cases on the issue of appropriate sanctions for illegal conduct. For many more, click on "sanctions" and scroll down.
Wednesday, September 26, 2012
Maryland Opinion Generally Approves Use Of ‘Daily Deals' like Groupon
Ethics opinions in at least eight states have addressed whether a lawyer's use of a third party company that
brokers discounted services to online customers violates rule of professional conduct. I commented on this issue for the first time about a year ago, when the State Bar Associations of both North Carolina and South Carolina approved of the practice (here where you can find links to the opinions).
Since then, a majority (although not by much) of the ethics committees that have considered the issue has found that the practice is not improper. In addition to North Carolina (Ethics Op. 2011-10) and South Carolina (Ethics Op. 11-05), Nebraska (Ethics Op. 12-03) and New York (Ethics Op. 897) have approved the practice. I commented on (and linked to) the NY opinion last January (here).
Maryland is now the most recent jurisdiction to have approved it. The Maryland State Bar Association Committee on Ethic recently issued an opinion holding that the practice is not per se prohibited as long as the lawyer takes steps to ameliorate potential ethical concerns that may be implicated by such arrangements. See, Maryland Ethics Op. 2012-07.
In contrast, three states have issued opinions disapproving of the practice: Alabama (Ethics Op. 2012-01),
For more information you can go to the ABA/BNA Lawyers Manual on Professional Responsibility, 28 Law. Man. Prof. Conduct 600.
Since then, a majority (although not by much) of the ethics committees that have considered the issue has found that the practice is not improper. In addition to North Carolina (Ethics Op. 2011-10) and South Carolina (Ethics Op. 11-05), Nebraska (Ethics Op. 12-03) and New York (Ethics Op. 897) have approved the practice. I commented on (and linked to) the NY opinion last January (here).
Maryland is now the most recent jurisdiction to have approved it. The Maryland State Bar Association Committee on Ethic recently issued an opinion holding that the practice is not per se prohibited as long as the lawyer takes steps to ameliorate potential ethical concerns that may be implicated by such arrangements. See, Maryland Ethics Op. 2012-07.
In contrast, three states have issued opinions disapproving of the practice: Alabama (Ethics Op. 2012-01),
Indiana (Ethics Op. 1 of 2012) and Pennsylvania Ethics Op. 2011-027 (2011). I reported (with links) on the Indiana opinion here and on the Alabama opinion here.
For more information you can go to the ABA/BNA Lawyers Manual on Professional Responsibility, 28 Law. Man. Prof. Conduct 600.
Sunday, September 23, 2012
How not to negotiate a settlement agreement
I never saw the TV show "Arrested Development"; a friend just sent me this clip....
Wednesday, September 19, 2012
ABA Commission on Ethics 20/20 releases drafts on Choice of Law issues
The ABA Commission on Ethics 20/20 has released for comment its most recent drafts of proposals. As explained by one of the commission members over at the Legal Ethics Forum:
The first draft proposal would permit lawyers and clients to agree that their relationship will be governed by a specific jurisdiction’s conflict of interest rules. The proposal is designed to help lawyers and their clients predict, with more accuracy than Model Rule 8.5(b) can provide, which jurisdiction’s conflict rules would govern the lawyer’s representation of a client.
The second draft proposal would address a choice of law issue that is arising with greater frequency because of inconsistencies, domestically and abroad, regarding the permissibility of non-lawyer ownership of law firms and fee sharing with non-lawyers. The issue is whether a lawyer in a jurisdiction that prohibits such ownership or fee sharing may divide a fee with a lawyer in a different firm in which such ownership or fee sharing occurs and is permitted by the Rules applicable to that firm. The Resolution does not propose any change to the existing prohibition in Model Rule 5.4 against non-lawyer ownership of law firms or the sharing of fees with non-lawyers. The Resolution addresses only fee divisions between lawyers in separate firms under Model Rule 1.5 when one of the lawyers is in a firm that has nonl-awyer owners or shares fees with non-lawyers, as permitted by the rules of the jurisdiction that govern that lawyer’s firm. The cover memo from the Commission's co-chairs explains that the Commission “has made no decision regarding the nature and substance of any Resolutions on these subjects. The decision to file any such Resolutions will be made at the Commission’s October 2012 meeting. In the meantime, the Commission requests that any comments on these new drafts be sent to Natalia Vera at natalia.vera@americanbar.org by October 19, 2012.
NY approves proposal to require pro bono services as pre-requisite for admission to practice
Back in May I reported Now comes news that starting in 2013, candidates to admission in New York state will be required to show that they have
performed at least 50 hours of law-related pro bono service as a
requirement for admission to the New York state bar. (See here). The proposal generated the never ending debate on whether pro bono should ever be mandatory. For posts on some of the reaction to the proposal go here and here.
Today, the proposal became law. Starting in 2015, aspiring lawyers in NY will first have to complete 50 hours of free legal service in order to practice law in the state. The new rule is the first of its kind in the country. For more on the story go the Wall Street Journal law blog, Legal Ethics Forum and PR: a contemporary approach blog all of which have even more links.
Today, the proposal became law. Starting in 2015, aspiring lawyers in NY will first have to complete 50 hours of free legal service in order to practice law in the state. The new rule is the first of its kind in the country. For more on the story go the Wall Street Journal law blog, Legal Ethics Forum and PR: a contemporary approach blog all of which have even more links.
Monday, September 17, 2012
How not to practice law: hide your assets in a bankruptcy case by transferring them to a friend
The Illinois Review Board has proposed a suspension of two years of an attorney who concealed assets in a bankruptcy by transferring the assets to his friend and law partner. The Legal Profession blog has the story here.
Friday, September 14, 2012
How not to practice law: post photos of your client's undies on Facebook and make fun of your client and his family in the process
Why is it that so many people are so stupid about how they use Facebook? What is it about Facebook that makes some people do stupid things? Here is a story about a lawyer who caused a mistrial, lost a client and got fired all for posting a photo on Facebook. Here is the first paragraph of the story on the Miami Herald:
A Miami judge declared a mistrial in a murder case Wednesday after a defense lawyer posted a photo of her client’s leopard-print underwear on Facebook. The defendant [was] accused of stabbing his girlfriend to death in Hialeah in 2010. [The defendant's] family brought him a bag of fresh clothes to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, [the defendant's] public defender . . . snapped a photo of [her client’s] briefs with her cellphone, witnesses said. While on a break, the 31-year-old lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”You can read the full story here and more on the story in the ABA Journal.com. The attorney was fired immediately after the court found out about the photo. Her supervisor, Public Defender Carlos Martinez, is quoted in the Miami Herald story explaining the decision as follows: "Clients are entitled to lawyers’ loyalty and respect. When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.” I couldn't agree more.
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