Do Not Bribe a Judge, Ignore the Disciplinary Commission, or Create a Conflict with your Clients

Even Attempting to Bribe a Judge is not Good Conduct

An attempt to bribe a judge is not a good thing for a lawyer to try to do, hiding it and then getting caught makes for the basis for a Slap-down by the subsequent judge.

When the investigating judge uses 123 pages to describe, in part, the evidence of the bribe attempt by the Eaton Corp.’s company lawyer Mark McGuire, it is the beginning of a bad time.  You can read the article here and see the links it has to the ruling.  Bad days start with these kinds of rulings. It will likely get much worse in the coming days for McGuire.

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Cooperate and Respond when you get the Certified Letter

Among the most important days in a lawyer’s life is the receipt of a certified letter from the Indiana Supreme Court Disciplinary Commission’s Executive Director.  Not a pleasant day, but an important one.  This letter means that someone has filed a complaint that you broke the Rules of Professional Conduct and your license is now at risk.  It happened to James Nafe, twice, and he got in trouble for not responding either time. In March 2012, and again in April he was Suspended from the Practice of Law for Noncooperation.

Lawyers must take the disciplinary process seriously, and if they don’t the Disciplinary Commission will ask the Supreme Court to suspend their license to practice. There are few other actions that can be taken at that time.  Nafe got suspended for a complaint that has not yet been made public, so we would not know that there are complaints against him (yet) if he had contacted the Commission. At that time he is to respond with his version of the events, or better yet, hired an experienced lawyer to walk with him through the process.

The suspensions finally got his attention, since on May 15, 2012 the Supreme Court terminated the Noncooperation Suspension by a published Order here for the first case, and here for the second case. Don’t get yourself in a box like this. Even lawyers need lawyers sometimes.

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Who is the Client?

When two people come to see you about a problem the first question must be, can I represent both people as clients? Lawyers like to help people — we want to solve our clients’ problems, but inadequate analysis of the potential clients’ needs can cause real trouble.  Todd Wallsmith tried to help two brothers whose father had disinherited them. After a while the brothers disagreed on case tactics, then case substance, and rather than obtain separate counsel for one of the brothers, he tried to handle both their claims, which diverged even more. The lawyer finally agreed with the other side on an issue, with one of the client’s consents, but without the other’s. As their agent, he had the power to consent, but not the authority for the one. The case blew up between the lawyer and the one client.

The lawyer and Commission agreed to a disposition of the complaint which was submitted to the Supreme Court. It found that there were four Rule violations, and as a penalty it suspended the lawyer’s license to practice law for 180 days, then withheld the full suspension in favor of 45 days suspension and 24 months of probation. A good result due to the circumstances. Also a good lesson for lawyers across the country.

Avoiding conflicts in the interests of each of your clients — when there are multiple clients — is not easy. Clients do not like to be told that you cannot take care of all of them, but sometimes you can’t. In some cases in some states multiple client representation is forbidden, in other cases it is merely a minefield.

Comply with the Rules: No-No’s: More Fee Fights

Lawyers need to comply with the Rules

On June 1, 2012 the Indiana Supreme Court issued its Order of Suspension for failure to pay registration fees or attend mandatory CLE, here.

24 pages with over 290 Indiana licensed lawyers named and suspended from the practice of law, for not living up to the basic annual rules of lawyering. I was pleased to see that none of my fellow Fulton County, IN lawyers made the list this year. Did you or your lawyer?

Attorney Ethical No-Nos in Billing

Indiana blogger John Conlon posts this blog entry that starts:

According to the Comments to Rule 1.5 in the ABA Model Rules of Professional Conduct (6th ed.), here are some ethical “no-no’s” that lawyers can be disciplined for when it comes to billing for their services:

  • Bill Padding
  • Double Billing
  • Fees for Doing Nothing
  • Fees for Doing Very Little
  • Doing Way Too Much
  • Doing Remedial Work
  • Too Many Lawyers Working on Matter

See the whole post here:  Thanks and H/T John Conlon.

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Fees Slashed by NY Judge – Embarassed for Firm

“A federal judge has rejected a ‘breathtaking’ $3.1 million fee request submitted by Kramer Levin Naftalis & Frankel, awarding the firm only a fraction of the money it sought for winning a fight over a downpayment on a luxury apartment co-operative.”

The BIGLAW firm sought $3.1 Million, plus $177K in expenses, but got an award of only $475,000 total for fees and expenses.  More to the story…

I am not sure that 5,536.4 hours was the right amount of time for the firm and its lawyers to spend on this case, but I am disturbed by the judge’s comment that he declined “to recapitulate that review” in his opinion to “avoid undue embarrassment to a fine law firm like Kramer Levin.”  If they did not read the bill for $3.1 Million before submitting it to the court for the other side to pay, as he alleged, then they should be embarrassed.

Also, I wonder if the firm had told the client that the fees would run over $3M for the fight, if the client might have reconsidered.  Fee shifting statutes can be dangerous to the decisions made in a case.

Take the File? Take the Kids? Drop the Case? Don’t

Taking the Boss’s File Is Theft – Twice, in Florida

Two associates leave their employment with the firm’s client files, and the clients. Boss sues and gets judgment for Civil Theft of property that did not belong to the associates. Damages were tripled for a big verdict.

Then it gets even more interesting when the Florida Disc. Comm. finds out and after its hearing, suspends the lawyers for short periods. The cases are discussed in the Bloomberg-BNA article here.

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Nobody Knows Why She Took the Kids

Morgan County IN lawyer Cecilia Hemphill was talking to a potential client about a visitation issue he had. Hemphill appears to have decided that an 8-year-old girl must have previously lied in a CHINS matter, and the lawyer needed to find out more. Incredibly she went to the children’s school, bullied the staff into letting her take the potential client’s two kids and keeping them for several hours. Mom was notified of the situation and understandably terrified. Hemphill’s phone had died so the Sheriff could not talk to her. Finally at 8:45 (almost 6 hours after picking up the kids) she took the kids to Mom’s.

The Supreme Court found she lacked insight in her continued denial that she did anything wrong, so it suspended her for six months without automatic reinstatement. Half a year out of the profession, then she may petition to return if she can prove she is not a risk to the public. Hemphill Opinion

My question is why, since the events took place in December 2008, it was August 1, 2012 before the case concluded?

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Dropping a case has consequences.

Client got sentenced to 100 years in 1989, but wanted to appeal. Blair Brown of Adams County IN got the appointment timely. Brown filed a defective appeal in 1990, which got dismissed. He forgot to tell the client. In 1993 he tried to appeal again, but to no avail. And again with no notice to the client. Finally in 2007 the client asked the court for a new lawyer. 20 years after convicted he got his appeal heard, and the conviction was affirmed. Client is still in jail.

What to do? No real harm done, convict’s case was apparently solid, as reviewed 19 years after the conviction. Lawyer cooperated, was remorseful, and has no prior problems. But the client was ignored, in violation of the Rules, 1.3, 1.4(a) and (b). Justice delayed is justice denied?

Lawyers must act with diligence and keep a client reasonably informed of the status of a matter, explaining issues so a client may make informed decisions. The court gave Brown a 30 day suspension with automatic reinstatement. Seems a fair outcome, see the Brown Opinion.

Contradicting a sworn statement: Fee Fight

When in trouble keep your story straight.

Tom Williams case was heard by now CoA judge Rudy Pyle and for Williams, heard too carefully.  Defending a suit to explain how his client ran out of money that was under his control, Williams testified that the funds he took were for legal fees. The  court found that it included “an inordinate amount of unproductive and nonprofessional work … no conceivable reason for the fees charged, … and [he] committed what amounted to constructive fraud….”  This led to a charge before the Disciplinary Commission and Supreme Court of unreasonable fees and other misdeeds. Williams then compounded the situation by changing his story, under oath again, at the disciplinary hearing. There he denied he was client’s attorney, but was a writer working on a project for her and so his actions were not governed by the RPC!  Judge Pyle and the S.Ct saw it differently.  For more read the Williams Opinion

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Grossly Inflated Fees Requested and Slapped Down

For my first Slap Down, it is good to have an out-of-state case, this one out of New York, where four firms teamed up to help a client win a verdict of $12,500 (no there are no more zeros after that) and since they were “entitled to fees” on the case asked the judge for $2.7 Million in fees. Federal Judge Joanna Seybert said the request was not only “outrageously excessive” but also done “in bad faith.” She went on to claim the lead firm “grossly inflated” their fee, “misrepresenting the hours billed,” and more.

I wonder if, under RPC Rule 8.3, the judge reported this situation as professional misconduct, raising “a substantial question as to that lawyer’s (or all the lawyers who signed onto the fee petition or submitted a bogus bill) honesty, trustworthiness or fitness as a lawyer in other respects…”

This case included some of the biggest of BIGLAW law firms.  We don’t often see firms such as Chadbourne & Parke, or Williams & Connolly on a list of slap down recipients.  They got it this time.  See the Toussie Opinion.  H/T Patrick Olmstead & to the NY Law Journal article.

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Note of Appreciation

A note of appreciation to Terry Harrell, Exec. Dir. of the Indiana Judges & Lawyers Assistance Program of the Indiana Supreme Court for sponsoring a session on Attorney Surrogates, and the Indiana Rule yesterday at the Indiana Judges Conference.  Panelists included Judge Heimann, Judge Cody, Senior Judge Ready, Terry Harrell and me.  I know one senior judge was looking at an appointment issue today. I trust they got more than just the guidebook for the hour the 80+ judges spent.

Three tales to start the series:

The theft of millions, not how I wanted to start, but it is Troubling:

Let’s start with the biggest legal scandal of this year: Bill Conour teaches us that it does not pay to get accused of stealing millions of dollars from client’s settlement funds. He has resigned his license to practice.  As quoted in the Indiana Lawyer: “William Conour, until recently, was one of Indiana’s most respected and powerful personal injury attorneys, his name prominent enough to grace a law school atrium. Now he faces a federal charge that could send him to prison for much of the rest of his life.”

See more at Conour Story

When will we see a new name on the atrium at McKinney Law?

ISBA’s Clients’ Assistance Fund – get ready!

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Lawyers must pay attention to their clients.

Johnson County IN lawyer Deborah Julian is suspended from the practice for two years due to her repeated failure to do the work she was hired to do, communicate with clients, tell the clients of hearings that were set and cooperate with the DC investigators.  See the opinion at Julian Case

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If you neglect a case, do not lie to the client about it.

Porter County IN lawyer Janice Gambill neglected to file a case for a client, then concocted an excuse that was not in accord with the documents in the case. Mistake on her part. Client fired her, got a new lawyer and filed the complaint. Gambill was on probation for a prior finding of at least four instances of neglect of a client.

Somehow she gets a second six month suspension, this time without automatic reinstatement (that is a big deal). The first time she got six months, suspended, served 60 days and 18 months probation. Read her recent case at Gambel Opinion.

What is “Lawyers with Troubles” and why read it?

A new blog designed to share current information on lawyers who have some kinds of trouble. Trouble for lawyers comes in lots of ways. The biggest types of trouble are disciplinary proceedings, fee disputes, or slap-downs from a judge (often an event that leads to other troubles).

Special troubles hit law firms that need to be brought to the attention of the lawyers. Fee disputes with clients, Client Financial Assistance Fund payments, (when a lawyer has been found to have cheated a client or many clients, and fellow lawyers offer funds to help the victims), or bar exam issues that haunt many lawyers for years, even after passage are always of interest to lawyers.

Still other troubles occur inside the office, and can run the list that most small or midsized businesses suffer. Economic downturns, bad employee decisions, cash flow management hit law firms like other places. I won’t be talking about these unless they lead to other troubles.

Troubles will be highlighted, since lawyers are mostly a trainable group. If you see someone in trouble for something that you too are doing, you might catch on and quit before you find yourself in trouble. I hate to report on my friends.

If you like the idea, share this blog post with your friends and colleagues. It will be an occasional post, prompted by the actions of the lawyers involved. I will plan to share a comment and a link, and a Hat Tip to the source.

As an Indiana lawyer, the blog will focus on the troubles of Hoosier lawyers, but lessons can be learned from the troubles of other lawyers, so if they make news, we will report it.