Accusing the Accuser: Staff Gone Wild: Ethics of Using ABA Ethics Opinions

What to do when the accuser is accused?

Occasionally the staff of the Disciplinary Commission is accused of committing wrongdoing. Much like a prosecutor  accused of malfeasance, there needs to be a method of resolving such an event, and recently the Indiana Supreme Court addressed this problem.

In the artfully titled Order which the court called:  ORDER FORMALIZING POLICY AND SETTING PROCEDURE FOR THE INVESTIGATION AND PROSECUTION OF GRIEVANCES INVOLVING MEMBERS AND STAFF OF THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION AND ATTORNEYS SERVING AS HEARING OFFICERS IN ATTORNEY DISCIPLINE CASES, the court addressed the issue of the accuser getting accused.  How should it be handled, and what to make of the event.The informal policy needed to be made a formal policy, so grievants would know what to expect. Five pages of analysis and remedy that is in the ranks of the better writings of this Court (notwithstanding the gender bias of referring to the then current and future CJs as “he”).  Well worth your time reading if you have a concern about the impartiality of the staff of the Disciplinary Commission. There is a way to get a fair proceeding.

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Staff Gone Wild – Signing Everything

There will be an interesting ethics program at the 2013 Solo and Small Firm Conference on the Ethics For Law Firm Staff, presented by John Conlon and your blogger, Ted Waggoner.  It was not prompted by, but will address the issues raised in the third Chovanec Opinion.  Oops.  Lack of training and supervision of staff, bad documents, that a secretary signed with the lawyer’s name to were filed with the US Bankruptcy Court.  The court rejected the documents, and things got bad for the lawyer, again.

Those federal judges don’t take things like this lightly. The Supremes did not either when it got to them. Read the case, and meet with your staff.

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How Ethical is Using an Ethics Opinion of the ABA?

So the ABA, a not for profit professional association with nearly a million members, creates at considerable expense, a Center for Professional Responsibility, with staff, office space, and all the accoutrements of support for the profession.  It is a dues charging Center, which members of the ABA can, for a fee, join and get the benefits of the Center.  It publishes books on ethical issues, works on the ABA Model Rules of Professional Conduct, and produces the official ABA Ethics Opinions based on those Model Rules.

One of the country’s more prominent lawyers, Ernie Svenson, a recent speaker at the ISBA Solo & Small Firm Conference, provided a link on his website, (I hope it is a profit center to his firm) to an ABA opinion on metadata, and for his effort got a cease and desist letter.  He posts about it and gets a serious conversation going about why the ABA would expect to sell its ethics opinions.

Classmate Joe O’Connor, a state delegate to the ABA House replied:

As the ABA State Delegate, and as a person who like a number of our Indiana colleagues has spent considerable volunteer time working with other lawyers from around the country to keep the ABA vital and relevant to our profession and safeguarding the justice system, I wanted to respond briefly to a couple of posts on this list serve about ABA ethics opinions and resources.

 Since October 2010, the ABA has made its ethics opinions available to the public free of charge by posting them on the website of the ABA Center for Professional Responsibility.  The ABA policy on access to and use of ethics opinions is reasonable and allows individuals to link to ABA ethics opinions and to quote from them within the doctrine of fair use.  The ABA ethics opinions policy, which is titled “ABA Ethics Opinions: Access for All Lawyers,” can be found on abanow.org at the URL: 

 http://www.abanow.org/2010/10/american-bar-association-ethics-opinions/.  

 I believe this represents a well-reasoned policy to provide guidance to all members of the profession and the public but of course opinions can differ.

 Joe O’Connor

I agree that an ethics opinion has some extrinsic value, and if the user needs to use more than “fair use” as defined in the copyright laws, a commercial transaction, including a payment for the product should be made.  I disagree with many about the value of an ABA opinion, which is based on the Model Rules, and not on the rule as actually written and enforced by the various state supreme courts. It is not a government document.

The Indiana State Bar Association does not charge for its opinions, now. They are available on the website. Not well indexed, but if you have the time, the opinion is there.

Some argue that this is one more reason to not join the ABA, but there are plenty of reasons for that, from politics to cheapness or lack or professional self-esteem. A complaint that a product that a seller wants $20 (or whatever) for is not worth  $20 is not the same as the complaint that they should not be permitted to sell the product.

ABA ought to win, and delegates ought to value the product of the organization they represent.

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Stay Current (redux):Taking one for the Team: Taking one from Court Staff

Stay Current (redux)

Several weeks ago I posted about the lawyer’s duty to Comply with the Rules,  all about keeping up on your payment of registration fees and attending mandatory CLE.  I should have posted it for Marion County (now) resident Susan Kriesel in 2008.

In 2008 Kriesel, a licensed attorney since 2002, was suspended for both issues, non-payment of dues and failure to comply with MCLE.  But so what?  She continued to practice, in a firm, for another three + years. Finally caught, she was charged and the Supreme Court Order accepted an agreed discipline she worked out with the Commission.

As punishment she got an indefinite suspension from the practice of law and a $250 fine, plus costs. The court questioned if the agreed punishment was sufficient, and after discussion of the serious consequences to Ms. Kriesel, decided it was sufficient 5-0. It is unlikely Ms. Kriesel will practice again.

In Georgia, a lawyer who was disbarred went on to impersonate another lawyer, and got a year in prison for Identity Theft. Different in some respects, but similar in several ways.

What role did the supervising attorney have in Ms. Kriesel’s case? Nothing appears on the Clerk’s docket at this time to suggest any disciplinary actions are pending.  Rule 5.1(a) seems to suggest that certain duties exist for the managing partner, and are implicated over this issue.

Also, no requirement of the refund of fees paid by clients, or of wages Kriesel earned during the three years is in the court’s Order, and no discussion of the Unauthorized Practice of Law issue that seems to be a part of the case. A discussion about UPL would have been a real help to the Indiana Bar.

Taking one for the team

It is tough enough being a public defender.  The client Lamarcus Williamson pleaded guilty to a “series of crimes” and when the judge throws the book at him, Williamson throws a sucker punch at his lawyer.  And the punched lawyer, Dan Hall, was covering the hearing for Williamson’s real PD, who had a conflict.

So you do a fellow lawyer a favor and get a bloody lip in the process.  Thanks Dan for taking one for the team.

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Now the Team takes one from the Court Staff

Beginning in 1991 a member of the court staff in Atlanta GA decided to set a misdemeanor criminal file aside, and not set it for follow-up or trial.  Twenty years later the stack grew to some 2000 misdemeanor cases.  Amazingly nobody (defendant, defense lawyer or prosecutor) noticed or complained that their case had not been resolved.

Most of the files were from 2008-2010, but some were considerably older. Not much the court could do but start setting things for hearing, and to allow prosecutors to dismiss.

Good for a court to have a clean out of the file closets and old file cabinets at least every quarter-century. When was the last time you cleaned out your file drawers?

A Lawyer’s Mouth can be Trouble: What Goes Out and What Comes In

Brizzi

“We find that Respondent, Carl J. Brizzi, engaged in attorney misconduct by making public statements as a prosecutor that had a substantial likelihood of materially prejudicing adjudicative proceedings and a substantial likelihood of heightening public condemnation of the criminal defendants. For this misconduct, we find that Respondent should receive a public reprimand.”

Most Indiana lawyers know the situation. Brizzi, an experienced prosecutor in Marion County (Indianapolis) saw over 100 murder cases during his time in office. On two occasions it was charged that Brizzi went too far in “informing the public” about the nature of the criminal acts that led to criminal charges.

The hearing officer found that the commission failed to meet its burden to show Rules violations as alleged. He found that no “actual prejudice occurred.”  The Supreme Court overruled the hearing officer and said that the standard is not whether actual prejudice occurred, but the standard set by the rule is that a substantial likelihood of prejudice occurs when making the statement. Since the line was not clearly drawn before this case, they gave him the benefit of the doubt on a couple of issues, but found that Brizzi stepped over the bounds on a couple of his comments. As such, a public reprimand was issued. But the next violator, in criminal or civil court, will be held to a higher standard. So let it be written. So let it be done.  Next time the lawyers need to watch what we say.  We have been warned.

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Texas Discipline Case is Different:

Two Texas lawyers were charged following a bizarre series of events. Leeds and Caballero first represented Judge Arditti in a public bribery case, where the judge was acquitted. But both lawyers were convicted of contempt for their actions in the way they tried the case, Leeds was convicted on five counts, and Caballero on nine.  The acts of contempt included disruptive behavior and calling court workers “liars.” Also, they called the judge a “racist” for starting court earlier in the morning than usual. The trial court then ordered the hearing transcripts sealed for further actions.

Following the contempt findings, the Disciplinary Commission filed charges for violations of the Rules of Professional Conduct. Among those charges was tampering with evidence for attempting to have the transcript destroyed. Stuart Leed came to an agreement with the Disciplinary Commission on resolving the charges, but the hearing judge threw out the agreement, as he found that the punishment was not severe enough.

The judge said: “The court has carefully considered its discretion to decline to approve the agreed judgment, including reviewing the Texas Disciplinary Rules of Professional Conduct, which are designed not only to regulate attorneys and the interests of the Bar, but also to preserve the citizens’ rights to participate in the justice system by a carefully constructed framework of regulations which permit civilized trials.”

Preserving the citizens’ rights to participate in the justice system… a good idea. Indiana has a consitutional provision on that, Article One,  Section 12. “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” That is a good way to run a court system.  H/T Rev. Chuck Blaisdell.

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Alcohol Can Cause Trouble

We all know folks who have an issue with the bottle (or other intoxicants).  For lawyers with drinking issues there are several problems:  Alcohol’s effect on the brain is that it impairs judgment, which ultimately affects a lawyer’s ability to assist clients; Driving while intoxicated is a crime, and the commission of crimes is evidence of unfitness to practice the law;  Alcoholism reflects poorly on the whole profession, and is also a reflection of the problems suffered by lawyers, due to the nature of the profession.

In Re: Mark Thornburg is a recent reminder of this.  He had thirteen years between his two OVWI arrests, the first just after passing the bar exam, the second just recently. Mark has been a good lawyer and strong member of the Bar Association. When his recent arrest occurred he did the right thing, promptly contacting the JLAP program to get back on top of the problem. JLAP is the Indiana Judges and Lawyers Assistance Program, designed to assist members of the Bar with problems that impair their ability to practice.

Thornburg also had been a good lawyer, the Court found “no disciplinary history” and that he cooperated during the investigation.  Those are qualities that the Court appreciates.  As a result, his punishment was a 90 suspension from practice, which was withheld, and he was placed on probation for 24 months with terms.  A failure to successfully comply with the probation will result in imposition of the 90 day suspension, but without automatic reinstatement to the practice at the end of the suspension.  The loss of automatic reinstatement is a serious add-on to the suspension.

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Watch what comes out of, and goes into, that lawyer’s mouth!

What causes Trouble for Lawyers? Fee Increases w/o Following the Rules: Ranting about the Judge: Dope in Court

Changing the Flat Fee – Oops

Fees are a difficult issue for lawyers, how much to charge and how to get paid are on the lawyer’s mind in nearly every engagement.  More flat fees are being used, as objections to the scope and nature of an hourly fee basis are growing. Indiana’s rule on increasing a firm fee that is to be charged to a client is the minority rule. But it is the rule.

It appears the purpose of Indiana’s rule is to protect the client during a change in the relationship, and in theory it does just that. Changing a relationship and fee during the midst of a matter could lead to overreaching or abuse. The rule attempts to alert the client to that possibility.

The lawyer needs to know how to protect herself as well as the client, and while the fees are governed by Rule 1.5 of the Rules of Professional Conduct, the change in relationship rule is in Rule 1.8 of the RPC.

The lawyer is to tell the client, in writing: “You are advised of the desireability of seeking, and be given a reasonable opportunity to seek, the advice of independent legal counsel on the change in our legal fee transaction; and you (the client) are to give informed consent, in a writing signed by the client, to the essential terms of the transaction, and to the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”

How often a client will seek an independent opinion in a timely way is doubtful. But the file must have these two written documents.

Indiana and at least two other states consider a modification of the fee agreement to be a new business arrangement with the client, and so the Rule 1.8 business warnings are required. Prominent Indianapolis lawyer Bob Hammerle found out the hard way.

Hammerle took on defense of a criminal case for Ed Blinn Jr., and they agreed on a flat fee plus an hourly fee after five days of trial. So far, so good.  As the case went on, the outcome must have looked grim for getting paid after the case was over for the hourly part of his fee. That is for the part billed after the services were rendered, and Blinn might be jailed. The client was refusing to negotiate for a plea.  So, Hammerle orally offered to change the hourly billing portion to a flat fee, no matter how long the trial took.  He forgot to check the rule on the change in the fee. Blinn verbally agreed, paid the fee (which is considered earned when paid, as a flat fee), then changed his mind, took a plea and wanted his extra fee back.

After Blinn sued and the courts decided that case Hammerle’s way (statute of limitations was missed by Blinn, but in addition the Court of Appeals went out of its way to say that no malpractice or unjust enrichment occurred), the Supreme Court Disciplinary Commission took over. The parties agreed to a Public Reprimand, for violation of Rule 1.5(a) charging an unreasonable fee, and Rule 1.8(a) entering a business transaction with a client without giving written notice of the desirability of seeking the advice of independent counsel on the change, and securing a written consent to the essential terms of the transaction.

Lawyers — changes to your fee agreements that could be considered to favor you, the lawyer, instead of your client, will be subject to the double whammy of 1.5/1.8.  The Supreme Court said that the fee charged to Blinn was not unreasonable, if properly vetted by the Rule 1.8(a) standards. Without the 1.8 warnings, it was unreasonable (per se?).

Indiana, New York and New Hampshire have this 1.8 rule interpretation, no other reports are in the ABA Annotated Model Rules (6th Ed.).  Is this the future of Rule 1.8 around the nation, or a misstatement of what the law ought to be?  I think the later, but I give written 1.8 warnings, and get written consents  anyway. You should too.

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Calling the judge a pedophile cannot be a good thing

Outbursts at judges make you eligible for a contempt citation, and some deserve the action.  Carlos Romious apparently missed the “civility day” lessons in law school. After one session where Romious asked sitting judge Mountjoy “if the proceeding is a joke” and stating that the judge was “corrupting and stinking up the case” and “corrupting the system” Romious was told to appear to answer to Contempt of Court charges. Normally the smarter lawyer cools off, apologizes to the court and to the judge, and hopes for a fine.  Not Romious.

He appeared ready to fight.  As reported in the Wall Street Journal law blog, he worked himself up to the point where he finally asked Judge Mountjoy: “Are you a pedophile?” 

A four month sentence is a pretty long time to spend in jail for a lawyer trying to keep an office open. I think it would crimp the style, and cause some clients grave concern. But here it sounds about right.  When in the heat of battle, a suggestion: Do not accuse the judge of anything, much less being a pedophile.

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Dope Should Remain in the Pocket

More than one type of dope showed up in Court in New Orleans.  The assistant city attorney for New Orleans had a bit  of dope in his pocket when he appeared in court. That was a dopey thing to do, and he was the dope when a joint of marijuana fell on the floor in front of the two police officers he was chatting with, and who arrested him there.  Not a serious crime, but Jason Cantrell lost his job and was publicly criticized by his wife, a candidate for city council. Lawyers, don’t be a dope.

New Rules for Lawyers and Judges: Living with the Rules; What is JLAP?

New Rules to Review

Six new sets of rules are going into effect for Indiana lawyers and judges on Jan. 1, 2013 based on a series of Ind. Supreme Court rulings issued in Sept.  The list of new 2013 orders (plus three effective July 1, 2012), if you have not seen them is here: http://www.in.gov/judiciary/2784.htm

It always pays to read the rules.

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Paying for Disclosure Violation

One hard fast rule in Bankruptcy Court is for the lawyer to disclose any interest, direct or indirect, in representations in the case.  In a recent bankruptcy case in Georgia, the lawyer was required to disclose any interest in any creditor of the bankrupt client before representing the client.  In this case the lawyer forgot to disclose that he and his wife were shareholders in a creditor bank, while her father had been bank president, board member and chair of the bank’s board, and to top it off, the lawyer’s former partner was general counsel to the bank.  Oops.

The opinion, as reported by the Business Reporting Committee, does a nice job of listing the five factors to used in determining if a disclosure misstatement is to be actionable, and here it clearly was an intentional misstatement of reality.  The court cut the law firm’s fees by $20,000 which should get these folks attention. And yours.

H/T Gregory Jordan for the link.

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What is JLAP?

One of the critical pieces of the legal system in Indiana was created in 1997, by adoption of Rule 31 of the Admission and Discipline Rules of the Supreme Court.

JLAP’s purpose “is assisting impaired members in recovery:” of all kinds.  It is designed to “provide assistance to judges, lawyers and law students who suffer from physical or mental disabilities that result from disease, chemical dependency, mental health problems or age that impair their ability to practice;…”

Terry Harrell is the extremely competent and compassionate Executive Director.  If you have questions about your situation, or the situation of a friend or colleague, you should review Rule 31 here and call JLAP for information and assistance.  The program has volunteers around the state, so you may get someone from nearby to provide assistance.

Of course the important thing is, if you or someone you know needs help, you should call. Today, or tomorrow. The impact of the call can be life saving, or might protect the rights and property of a client. Good faith calls get some qualified immunity under Section 9.  Call.  It is better than being required to report misconduct if you don’t call.