Wordiness does not pay; Rule 1.18 violation causes suspension; Judge forgets role.

Too Wordy?

Belli v. Hedden Industries pleadings get whacked by federal judge for wordiness. J. Merryday even edited the 127 word opening sentence of a Motion for Expanded Brief, to 47 words, and said that if the court could edit that much out of the Motion, just think what some editing could do to the brief that exceeded the 25 page limit. The judge did give the lawyer a week to fix the brief, and get it to the 25 page limit.

Hat tip to Lisa Solomon

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Potential Clients get to have secrets kept – or else

A tattoo artist and pawn shop owner called a lawyer about a potential case. Chris Cicero, a lawyer in Columbus OH was called the day his potential client Ed Rife had his house raided by federal officials investigating drug trafficking. They met the next day and talked about the potential criminal case, and about Rife’s association with some OSU college football players.  Later that day, and without permission from Rife, Cicero sent an email to then OSU football Coach Jim Tressel about the raid and the ties Rife had to the players. A couple of weeks later, as the investigation grew and Cicero had received further information from Rife during another interview, he sent a second, then a third email to Tressel. He told Tressel “What I tell you is confidential.” but it was Rife’s confidence that Cicero shared. Rife never hired Cicero to represent him in the charges.

Cicero was found guilty of violating Rules 1.18 and 8.4 of the Ohio RPC.  1.18 protects the rights of potential clients, and Cicero revealed confidential information received during discussions with the potential client, Rife. This was a case of first impression for the Ohio Supreme Court to rule on the violation of 1.18. There are only a handful of 1.18 cases reported around the country. Rule 8.4  prohibits lawyers from engaging in conduct that adversely reflects on the lawyer’s fitness to practice.

Cicero took advantage of an opportunity to get close to Coach Tressel at the expense of his potential client. For that he gets the next year on the bench, and off the legal playing field.

H/T to Legal Professions Blog, Bar Discipline and Process link (the most comprehensive site I have run across about the troubles lawyers get into).

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Town Court Judge acting as Prosecutor?

The Fremont Town Court Judge Martha C. Hagerty, a non-lawyer, was publicly admonished for “assuming the role of a prosecutor” and engaging in multiple ex parte conversations with the actual prosecutor about a pending case.

The Indiana Commission on Judicial Qualifications found that the processes in the town court allowed defendants to discuss their cases with the judge, and she would then talk to the local prosecutor about working out deals. In one case the defendant wanted a contested hearing on an infraction ticket, which had resulted in a suspension of the defendant’s license to drive. The court suggested to the prosecutor that he amend the charges to avoid the hearing. That case dragged on for more than two years and the defendant filed a request for discovery. The judge and prosecutor discussed the defendant’s motion without the defendant present, and she denied the discovery motion. Finally, 38 months after the first contact the prosecutor dismissed the charges, and expunged the suspension.

When called on it, the judge admitted her mistakes, and agreed to a Public Admonition. No formal ethical charge will follow, and  office procedures are changing.

H/T Indiana Law Blog

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Be nice to your SO; Get along with the Voters; Be a Careful Witness

Don’t Hit Your SO

BigLaw partner loses his job, and family, after being charged with assault. During a dispute with his Significant Other, King and Spaulding lawyer Steven Guynn, forgot the basic concepts of alternative dispute resolution, and allegedly resorted to hitting.

Reading the news today (and any day since you were three years old) a lawyer, especially a 59-year-old corporate lawyer, should know that hitting girls is not an effective means of winning a dispute.

He is no longer listed on the BigLaw firm’s website, and they will not answer questions about him.

These things never lead to good outcomes, Guynn’s wife has now filed for dissolution of the marriage.  The wife was not the hittee, that was his mistress (to use an old-fashioned term, which 59-year-old lawyers can do).  Several bad decisions rolled into one situation.

Too bad the generals are not reading this blog.

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The Voters have Spoken

Judge Cynthia Brim shoved a Chicago courts deputy last March, and was charged with Battery. She was also barred from the courthouse without a court approved escort, by the presiding panel of judges. Suspended from the job, and charged with a crime, she still sought judicial retention while also pleading temporary insanity for her act of Battery.

With a retention vote of 67.5%, she gets to keep her job, or at least her paycheck.

She returned to Court the day after the election, but it was to answer to the misdemeanor Battery charges. At that hearing she submitted her insanity defense to the charge. The court appointed psychiatrist agrees she was suffering from bi-polar disorder at the time of the crime, but while properly medicated can stand trial, and could return to work.

The Chicago Bar Association had recommended that Judge Brim lose her position, but the Cook County Democratic Party endorsed her retention. The voters retained Judge Brim. No report that the judicial panel has said if she can return to her courtroom yet.

As a supporter of merit selection with retention ballots, I must admit that the system is not perfect. I hope the IL JLAP program is on the case.

There are serious issues involved in bi-polar disorder, and the medical profession is working hard in its efforts to help those suffering. Lawyers and judges who are medically affected by a variety of illnesses must seek treatment early, and not allow the illness to interfere with the rights of clients or litigants. The ABA Journal report does not tell us if Judge Brim is doing that, yet.

H/T Professor George Smith.

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Trying to Make a Point as an Expert

Dean Borland is a lawyer and computer expert.  He testifies as an expert in trials. He explains his analysis with computer skills and tries to make his points to the jury in an understandable fashion.  This time he succeeded too well. [paywall protected]

In a criminal trial about child pornography, he showed the jury how easy it is to replace the face of an adult porn model with the face of a child, twice. He showed them that a possessor of such a photo would not be able to know that the image was modified.  Doing this, he committed the very crime he was testifying about, in open court, on the record, of “possessing an image modified to appear as if a minor is engaging in sexually explicit conduct.”

He was charged with that crime, and entered a pretrial agreement with the Cleveland US Attorney, and apologized to all through the Cleveland Bar Journal.

Lesson learned, right?  Well, no. The children’s images he used were professional models, and by putting their image on the body of a nude model (makes it sound less sleazy to say ‘nude’), he exploited the children in a way that also violates the federal law. A victim of a sex crime who suffers any kind of personal injury is entitled to a judgment of not less than $150,000, irrespective of the actual damages. There were two child victims who sued.  The federal trial court first threw out the case, saying no real harm was done, but the Sixth Circuit Appellate Court disagreed.  Borland ends up paying the $300,000 for the damages he did.

As the Sixth Circuit Court said “Congress meant business in awarding the damages the way that it did.”  Borland learned that lesson the hard way, and so have you, at much lower cost.  Be safe out there.

H/T Olmstead

Hourly Billing leads to Suspension; How Much is Too Much?: Know the Battles to Fight

Billing is one of the toughest things lawyers do.

The legal field is struggling with the proper method of billing for legal services.  There are a number of ways, mostly broken down into the following styles: Contingency, Hourly, Value Pricing and some hybrids such as menu billing or flat fee billing.

Each method has its critics, and the Indiana State Bar Association recently held a session at its Annual Meeting on “The Future of Legal Fees.”  MS lawyer and ABA bestselling author Mark Chinn was the presenter.  One fear expressed there was that Value Pricing fees could run afoul of ethics issues.

Any system of billing can run afoul of ethical issues. The primary breach is in the lawyer, not the system. “But lead me not into temptation…” Michael Murphy, a Massachusetts lawyer, learned the hard way.  He was a salary lawyer for an unnamed law firm.  On at least two cases he “knowingly spent more time than necessary” in order to increase his billables. He reviewed materials multiple times, often for hearings that had not been scheduled yet. He billed for time performing tasks that “should have been delegated” to lower cost lawyers at smaller billing rates. He billed for performing tasks that others had performed. Author John Conlon regularly writes about the problem for clients about misallocation of duties between higher priced lawyers and the lower priced associates or non-lawyer staff.

Murphy’s firm refunded the fees, and wrote off unpaid bills, but Murphy got a Year and A Day suspension.  Rumor has it that this kind of billing problem occurs with enough frequency that it should be discussed in biglaw and small firm settings, and forbidden by policy. The Mass. Court found the fees charged was a violation of Rules 1.5(a) and 8.4(c).

H/T Andy Perkins

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106 Paragraphs in the Ethics Complaint => Suspension

Illness does not give you a “Free Pass” card.  Kjell Engebretsen, a Boone County, IN lawyer appears to have struggled for years in representing his clients.  The battles may have had to do with depression or other illnesses, but were manifested in his refusal to do the clients’ legal work, or to cooperate with the Disciplinary Commission.

The charges included: neglecting clients’ cases, failing to do the work for which he was hired, failing to communicate with clients, failing to inform clients that medical problems would severely limit his ability to represent them, failing to inform clients of court orders and hearings, failing to appear at hearings and a pretrial conference, unilaterally terminating his representation of clients without protecting the clients’ interests, failing to refund unearned fees, and failing to cooperate with the Commission.

This is the fifth action against the respondent filed by the DC, and there may have been others not filed before the 2008 matter. At the time of this Order he was on two other suspensions (failure to pay costs, and non-cooperation with a show cause order), and did not respond to the charges filed here.

The Court found violations of the following Rules of Professional Conduct:

1.3: Failure to act with reasonable diligence and promptness.

1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.

1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.

1.16(d): Failure to protect a client’s interests upon termination of representation.

1.16(d): Failure to refund an unearned fee upon termination of representation.

3.2: Failure to expedite litigation consistent with the interests of a client.

8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

For all that, the result may surprise you.  Read the opinion, and J. David’s dissent.
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Pick your Battles Carefully, Especially When You get the Lede

Vikrant Pawar, a NYC lawyer had to file the suit. His honor apparently was tested by the allegation.  Then the slap-down hits.  As reported in the New York Law Journal [full story behind a paywall]:

“The charge of stealing a $6.95 order of chicken wings, hardly constitutes that of a serious crime,” Manhattan Supreme Court Justice Louis York wrote, holding that Vikrant Pawar had not made a sufficient case that the charge amounted to slander.

So an event that merited the attention of Pawar’s family and staff, and the owner of the Wings Shop, has now been made a record in the courts, and in the popular legal media.  Now we know he was accused of stealing chicken wings, and that the court does not find that charge to be an insult to his integrity.

Maybe the better resolution was to pay the tab, tip the waiter and stay quiet.  H/T Patrick Olmstead.

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Pictures? Really: When Clients Turn On You: Helping Mom Catch Dad

Think the Judge Watches the News?

Detroit Judge Wade McCree must not know of the story of Congressman Anthony Weiner.  Or else he might have thought twice about sending a photo of his nakedness to his court bailiff.  She did not mind apparently, but her husband did. He complained to the local new reporter of Fox2 News.  Oops. The reporter talked to the judge, who said among other things that “there is no shame in my game!” (whatever his game is).

That report got the attention of the Michigan Supreme Court. It censured McCree for his poor jokes, and bad judgment.  It was also reported by Fox2 News that “The Supreme Court also wrote in its decision that McCree’s female bailiff kept his naked picture as motivation to remind her to exercise and eat right.”  Not the kind of judicial statement I would hope for in a judicial opinion about an ugly situation (I saw part of the photo).

The baliff’s husband disputed the photo’s effect as a diet aid; he said “all it did was wreck our marriage.”

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When Lawyer-Clients Turn on their Lawyer

A New Jersey lawyer, Leonard, found out the hard way, there are consequences to representing a bad lawyer who was sued by his angry client, especially for making comments in the case that the lawyer-client committed a crime for the client, and the lawyer then sues you.

There is a rule that “the litigation privilege generally protects an attorney from civil liability arising from statements he has made in the course of judicial proceedings.”  The purpose is to protect the process from grinding to a halt if there is a dispute about some information a lawyer provides the court. The lawyer might be subject to disciplinary measures for some statements, but not civil liability (she cannot be sued for the comments).

Here Leonard, the new defense lawyer for the lawyer Buchanan, told Buchanan’s insurance company that the lawyer had committed bankruptcy fraud in the earlier case. Not only did he commit a crime, he lost the suit which resulted in a malpractice lawsuit.  The insurance company denied coverage to Buchanan (and probably payment of fees to Leonard) due to the fraud as stated by Buchanan’s lawyer.  Having been sued, Buchanan sues his lawyer Leonard.

The NJ Court of Appeals said that the litigation privilege does not protect the lawyer (now Leonard) in a case brought by the client (now Buchanan) for failure to live up to the standards of the profession.  Whether Buchanan can ultimately recover damages if the lawyer Leonard has violated the RPC by telling the truth to the insurance company is going back to the trial court to be heard.

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Helping Mom Catch Dad Leads to Court

Gail thinks that Lee, her husband, is cheating.  Her daughter in law, Holly opens Gmail, signs in as Lee and guesses the right answers to his security questions.  Holly finds the incriminating emails with the paramour, shares them with Gail, and the women both end up in court, when Lee sues them both for violating his privacy rights.

In 1986 Congress passed the Stored Communcations Act (SCA), not anticipating that in 25 years we would have Gmail and cloud services.  Early October this year, the South Carolina Supreme Court said that Holly’s reading Lee’s email off of Gmail is not a violation of the SCA.  Good enough?  Not quite, at least in the legal world.

In 2004 the 9th Circuit Court of Appeals (a federal appellate court) found the opposite, or nearly so. There an email that was read and saved on a local server was found to be a saved communication for purposes of the SCA. That was a local server, not an international server handling billions of emails a day, and it qualified. Maybe the bigger storage system should be protected, too.

What constitutes “electronic storage?”  The SCA defines it as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.” But was Lee backing up the email to save it on a back up?  Was the email in transit, on short-term storage?  It does not sound like it was either one.

A call to Congress, or the Supreme Court, to fill the gap in the law is now revealed as a good idea by technological advances and a philandering husband.  H/T to Patrick Olmstead for the story.