Be Careful Helping your Friends – Sharing with Friends – Treating Staff and Litigants

When is a Lawyer just a Friend — in trouble?

Jameson Conrad was with a friend on New Year’s Eve, in Charleston WV. Conrad’s friend got into a dispute with another man, and used his gun to make his point. The shooting was caught on tape. Conrad then used his lawyerly skills to advise friend to “run,” he then kept friend’s cell phone and refused to identify friend when police asked.

When you are a fact witness, it is hard to claim a lawyer-client privilege, because the police think you are an “accessory to malicious wounding.” It might work, we will know in several months.

But, upon these facts, WV Bar Counsel alto thinks you are enough of a menace to make a prompt Complaint to the Investigation Commission, seeking suspension from the practice, and to report it when asked by the local paper.

H/T Gary Welsh.

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Who do YOU Trust with your Client’s Secrets?

It is only a little secret. Something you learned while working with the world’s most famous writer. Surely your wife’s best friend can be trusted not to tell what you should not have told her.  But she told, and now you pay, in a couple of ways.

JK Rowling has been known to write some pretty good books, sold millions of books, and movie tickets from the Harry Potter series.  She ought to be able to trust her secrets to her solicitors.  But Robert Galbraith’s identity was not safe with Christopher Gossage, one of her lawyers.  Robert Galbraith is the pseudonym Rowling used on a new book she wrote, trying to see if she could enjoy writing without the hype and expectations of her name.  She was displeased, even though the book sales jumped after the word was leaked by the trusted friend of Gossage’s wife.

The law firm fell on the sword, quickly admitting that Gossage had shared the information with Judith Callegari during a private conversation. “The disclosure was made in confidence to someone he trusted implicitly.”  Not a great judge of character there.

Who do you trust implicitly enough to turn your license over for their discretion? The Solicitors Regulation Authority in England fined Gossage £ 1,000. for the breach of confidentiality.  Rowlings charged even more.

There was a winner in this matter. “The Soldiers Charity” was the recipient of all the book proceeds, plus the settlement damages Gossage and his firm, as well as his trusted friend paid to Ms. Rowling. Nice touch.  Hard for a billionaire to get much in the way of sympathy for herself.

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Judge Suspended for Treatment of Staff, Lawyers and Litigants.

The Judge Kimberly Brown story is a big story in Indiana legal circles. She has been through a protracted hearing before the Master Panel to determine a recommended punishment, based on a multi-count complaint of judicial misconduct. She was reported to have mistreated staff, lawyers and litigants in unusual and contemptible ways.

The Master Panel has recommended her removal in spite of some clever legal maneuvering by her new lawyer-team, after firing her earlier team of lawyers.  Now the Supreme Court has temporarily suspended Judge Brown and will take further action in due course.  Her suspension, as recommended is with pay.

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Ted Waggoner will be offering the annual kickoff session to the IVY Tech Agricultural Seminar Series on Jan. 22, at the Cole campus in Logansport. The topic – Family Farm Ownership: What is the Right Solution for You and Your Family. For more information, contact Julie Byrd at IVY Tech, 765-459-0651 x 288.

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Bad way to finish the year – Two cases, One Good Finish for the Lawyer.

Stealing from a church is bad enough, but…

To have the Ohio Supreme Court choose Christmas Eve to suspend your license might make you think that the court believes there are greater punishments in store for Mark Anthony than a long term license suspension. The underlying problem was a gambling issue. The amount exceeded $118 000 for the lawyer, who was also the business manager of the Catholic Church in Lebanon, OH. The terms of suspension require full restitution to the church’s insurer of $128,000 before he can apply for reinstatement, plus establish a gambling addiction plan, and maintain the plan.  The fact that he did not get disbarred prompted a dissent from 3 of the 7 justices. A similar, but distinguishable case of gambling prompted embezzlement had resulted in disbarment.

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Biglaw Pro Bono seems different

Lots of biglaw firms are having associates do pro bono work. That is a good thing, the young lawyers get experience, the clients get free legal services.  Winston & Strawn is among the biggest of the Biglaw firms. A former juvenile prisoner sued the City of New York as a pro bono case.  He claimed he was attacked by guards at Rikers Island, injured and not treated. The court referred the case to Winston & Strawn, who assigned an associate lawyer to handle the case.

A discovery issue broke out. The City did not respond to demands for information and for a witness for deposition. The city asked the court for a protective order, and W&S responded. The court found the city did not comply and that it was responsible for fees.  W&S asked for $20,000 for 33 hours work.  The senior associate billed at $620 an hour, three other associates billed from $390 to $570 per hour.

The magistrate found the motion and responses “very simple and straightforward” not requiring the expertise or efforts of four lawyers, and he disregarded hours billed for such issues as “preparation for filing” at 4.5 hours, and for issues in the case, but not germane to the discovery issues which could be billed.

The court set the rate for all lawyers on the case at $300 per hour and said no more than 12 hours could be charged.

** The firm in a statement said that W&S “generally donates fee awards in pro bono cases to public interest agencies after deducting for expenses.”  That is a good Christmas thing to do.

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Good to be back after a couple decades?

Bill Drozda’s troubles started in 1991, when the Disciplinary Commission charged him with 10 counts of misconduct, then increased the number to 13. They all had to do with neglect of clients cases, and the consequences of such neglect. Drozda accepted an immediate and temporary suspension, which was finalized in 1995. After finding him guilty of all 13 counts the Supreme Court imposed a 3 year suspension, with credit for time served.  As I calculate that, he had some work to do to clear up the record (pay costs, and now includes take the  multistate ethics exam).  Well he finally requested reinstatement last year, and the Court granted his return of license, 22 years after he lost it, as of Dec. 19, 2013.

Before his troubles he was a three term member of the Indiana General Assembly.

Report Your Convictions, Indiana Lawyers; Scammed; School Board Lawyers Indicted over Free Lunch?;

Those other Rules also Count to the Ind. Supreme Court

There are several (18) sets of rules that lawyers need to know about as a part of your practice, and sometimes we forget them. One that bit a lawyer recently was the rule on reporting our convictions.  No, not our deeply held principles, but the convictions we get for violating the law. The Rule is A&D Rule 23 §11.1 (a)

(2)    An attorney licensed to practice law in the state of Indiana who is found guilty of a crime in any state or of a crime under the laws of the United States shall, within ten (10) days after such finding of guilt, transmit a certified copy of the finding of guilt to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission.

The 18 sets of Rules on the Court’s website can be found here.

Gary Selig, of Indianapolis, was convicted in 2003 of OVWI, but did not report it to the Disciplinary Commission. In 2013 he was again convicted, and started treatment. This time the conviction was reported, apparently by the judge (see below) His matter went to the Commission, and was docketed with the Supreme Court on two charges: Committing a criminal act that reflects adversely on his fitness to practice (RPC Rule 8.4(b) and Failure to Report the 2003 conviction (A&D Rule 23 §11.1(a)(2)).

The penalty: 30 days suspension from the practice of law, stayed for a six months probationary period with terms to help with the alcohol issues in his life, and to remain under JLAP supervision.  Good luck.

While it is probably painful to report a criminal conviction, it will be an aggravation factor if you don’t. Judges:  if a lawyer is convicted in your court, you also have a duty under 11.1(a)(1) to report that conviction within ten days.  Don’t overlook that duty.

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When the money is coming from Nigeria – Be careful

At least he did not fall for an email from Nigeria, but maybe what he did was worse.  Above the Law has the snarky version of the tale of the Iowa lawyer who not only fell for the $18.8M scam, but convinced several clients to invest in the up front payment of $177,660 to get that big check. He did it for the client who got him into this mess, (a criminal defendant with a pending case) and for the 10% finder’s fee that Robert Allen Wright Jr. (lawyer son of a prominent Iowa lawyer) was expecting out of the deal.

He even tried to get the funds from the Bank of Nigeria and the President of Nigeria (Nigeria is ruled by an Edo – the title used by the current “ruler” of Nigeria.)

Among the charges that were filed was a charge of Fraud on Clients, but it was dropped by the Disciplinary Board, because the evidence showed that Wright did not know there were no funds, and that he still is delusional about the prospect of obtaining the Nigerian cash, any day. Stupid is as stupid does…

He was suspended for a year from the practice. No word on restitution to the clients who were duped, and no requirement was stated for IQ or EQ testing before reinstatement.  Sounds like it might be a good idea.

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Got to Quit Reading NJ Law Journal
School board lawyers in NJ get indicted on Free Lunch scam for Board Members.

School Board member reports to the board lawyers that his income statement was “misstated” by his wife and he wanted to correct it “so I don’t end up like” another board member who was under investigation for getting free lunches when her kids were not eligible, due to her income.

The lawyers solved the problem for the board member, by conspiring to hide evidence, and telling staff to remove lunch applications from files, and doctor computer records, all to cover up for the various board members’ misdeeds.  Oops.   It was reported that:

A state grand jury in Trenton charged Capece and Nelson [the lawyers] with second-degree conspiracy and official misconduct, third-degree tampering with public records and physical evidence, and fourth-degree hindering prosecution.

If convicted, they would spend a minimum of five years in jail without parole and could pay fines of $150,000.

(emphasis added)

And you thought we school board lawyers lived quiet lives.

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FYI, Last Friday, I presented a three-hour CLE (one hour ethics) seminar on Representing and Working with a Not for Profit Entity.  A good session sponsored by the Northern Indiana Community Foundation (Fulton, Miami and Starke Counties), the Marshall County Community Foundation and the Pulaski County Community Foundation. If you are interested, contact me at ted@peterson-waggoner.com

Little Corruption or Little Jail Time? Wyser – No Time=Right result?; Conour Redux, again!

What is the cost for fixing tickets?

How corrupt is a NJ judge who fixes tickets for her “significant other?”  Corrupt enough to get kicked off the bench, and have her license suspended it appears.  Former judge Wanda Molina already lost her position as chief municipal judge, and the NJ Supreme Court will decide on whether and how long to suspend her license to practice law.  The disciplinary prosecutors are asking for a 2-3 year suspension, but others expect maybe a six month layoff.

Four other municipal court judges were also caught up in the ticket fixing scandal, and resolved their charges.

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Was Wyser’s Punishment the Right Result?

The Indy Star story starts: “Former deputy prosecutor David Wyser’s after-the-fact acceptance of $2,500 for approving the early release of a convicted killer was a “wobble” in an otherwise unblemished career of public service, federal Judge Sarah Evans Barker said [Nov. 25] as she sentenced Wyser to three years of probation.”

Paula Willoughby, convicted of murdering her husband, was sentenced to 70 years, but after lobbying by her defense lawyer (who appears to have offered a bribe and has not been charged yet) the deputy prosecutor David Wyser agreed to reduce the sentence to the 18 years she had served.  That was followed by a “campaign contribution” of $2500 from the father of Willoughby. The timing was apparently critical.  In 2006 Wyser decided that a sentence modification was appropriate “once she served the minimum time” she could have been sentenced to, which was the 18 years, in 2009. When that time came, Wyser filed the paperwork. He was campaigning for Hamilton County Prosecutor at that time, and says the contribution came when he needed some campaign cash.

The victim’s family thought a travesty occurred when Federal Judge Sarah Barker ordered six months sentence of house arrest and three years probation (reports do not identify the underlying sentence that would be imposed if Wyser violates the terms of the probation).

Judge Barker comment that Wyser helped with investigations into the defense lawyer who offered the contribution and Carl Brizzi, Wyser’s former boss. No charges have been filed against either person, and none apparently will be filed against Brizzi.

A check today shows that Wyser’s law license is still “Active in Good Standing.”

My take: The law license matter is incredible.  That should have been resolved by now with a disbarment or resignation.  Interesting when/if it will occur.  The sentence is a more difficult matter to decide. Judge Barker is not a “softee” on anyone. Her rationale makes some sense – if the law license is gone.  But there are lawyers who do crimes similar to non-lawyers, and who get more favorable treatment. Sorry fellow lawyers, but the Courts should hold us to the standards of the law.  Exceptions ought to be the rare event, and it does not seem like it is.

That is the troubling trend.

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Another Round for Conour?

This blog has covered the William Conour matter in some detail. With six previous stories, his sentencing and McKinney Law stripping his name off the wall of the atrium, I thought I was done with him.  Today the federal prosecutors are talking out loud about the possibility of appealing the 10 year sentence he got for stealing millions from widows, orphans, and severely injured clients.   A notice of appeal was filed last week in the 7th Circuit Court of Appeals.

The sentencing judge said at the time of sentencing that the time was set so there is a possibility that Conour will make some restitution to the victims. At 66 years of age there is some concern that a longer sentence will make that impossible. But there is the troubling trend.

A check on the status of Conour’s license:  Resigned.

No published report from the ISBA on the impact on the Client’s Financial Assistance Fund.

More to come.

Before Me – means just that; Get a Retainer; Price of an Insult

Just because you did, don’t.
It hurts to report on lawyer-friends, and yet they too provide lessons for us to learn.  Larry Beeson is a good lawyer from a neighboring county. We have tried a few cases against each other over the nearly 35 years we have been here.  Larry just got a public reprimand, and included was a strong warning from the Chief Justice that the act should have resulted in a suspension.

After seeing this, I called Larry and we discussed the ruling.  The case was an older couple, blended family, and a transfer of the Power of Attorney from the elderly wife to wife’s children.  Husband’s children later objected to everything and among the things in the objection was the handling of the POA.  Husband signed it, wife returned it to the drafting lawyer who added his notary.  He had known the couple for more than 20 years, was familiar with the signature, but did not see it signed, and did not return to have the signer acknowledge before him that the signature was his.

Later there were problems between the various family members, a disciplinary complaint filed, and this issue stood out.  Beeson admitted the violation early. The 2007 incident resulted in the 2013 ruling.

A lively discussion was had on the Indiana State Bar discussion list, with a few confessions from lawyers admitting doing the same things, but most notably, a defense of the Supreme Court’s ruling was in a comment by Indianapolis lawyer Jon Pactor reminding the profession that the legal system depends on honest documents, and as officers of the court, it is critical that no document breaks down at the hands of a lawyer.

Don’t notarize documents when you don’t see the signer sign, and as a lawyer, don’t count on the warning from the CJ remaining the minority view in your case. And if you did it before, or had staff do it before, stop!

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Get a Retainer or stay quiet

Harry Tun was talking to a witness in a murder case he was defending when the witness asked if she could invoke the 5th Amendment to avoid testifying.  Rather than say “you need to talk to a lawyer of your choosing about that.”  Tun answered that she could not invoke the 5th Amendment. Someone else in the room (M.B.) also told the witness the same information. M.B. was later charged with obstruction of justice.

Tun should not have offered legal advice to a non-client.  There was a conflict of interest between his client’s position and the witness’s, and the advice was a concern for the panel.  He got a public admonition from the District of Columbia Bar.

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Deposition Fights – Suspension?

Lawyers should be the professionals in the room when a deposition is going on. Cliff Van Syoc forgot that, and ended up calling the opposing lawyer names such as “stupid” and “bush-league.” (Apparently DC does not allow Joe Jamail deposition tactics from Texas, as shown here) When he told his deposition witness clients to leave the room, the inquiring lawyer said that he would call the judge to supervise the deposition. Van Syoc then said that the “presiding judge is corrupt,” and told an employee to call 911 to have the New Jersey police evict the opposing lawyer.

Van Syoc did give an apology, but the court did not give him much credit since he continued to criticize the judge in his apology. The court reporter testified at the disciplinary hearing, not to Van Syoc’s advantage.

New Jersey discipline is heard by a board that makes recommendations to the Court. The DRB split on the recommendation: four for a six month suspension, one for a three-month suspension, and two for a censure.  The Court will determine the final sentence.

Matters of Principle – or dumb stuff?

Some less serious stuff that still impact our profession or our clients.

No One Doubts a Person’s Right Not to Pledge Allegiance. but…

Dan Ashta is a Chicago area lawyer, and Commissioner of the Morton Grove Parks Department, an elected position.  Tradition is that Park Department meetings start with the recitation of the Pledge of Allegiance.  Ashta thinks that is inappropriate, and refuses to stand for the Pledge.  So he removed the Pledge from the Agenda.

The local Post of the American Legion wants the pledge back on the agenda, and is withholding funding for the Parks Department until it returns.  The loss of funding may jeopardize the annual fireworks, Halloween and Easter events in the park.

Principle or Dumb?

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If you are required to register your license by email, should you get an email account? Or are you just cranky?

South Carolina Supreme Court now requires lawyers to register an email address, as well as a mailing address and telephone number with the court.  Cynthia Collie refuses to provide an email address.  She also goes by the name of Cynthia Holmes. She claims to have been retired for 30 years, but records show she is not yet 65 (as required for retired status in SC) and has filed repeated documents in response to the issue.  She did report an email address: rule.410-retired@yahoo.com – but it did not work (Rule 410 is the rule requiring the email address in SC).

She got an interim suspension for her troubles.  The ABA journal reports that Collie/Holmes is also a practicing physician!

Principle or Dumb?

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Paul Ogden Update

The continuing saga of Paul Ogden fascinates me.  Sort of like a wreck on the side of the road.  We know the car is totaled, but I have not figured out how badly the driver injured himself.

The Indianapolis lawyer and blogger continues to get news, and support across the legal field, including this post from the Professional Responsibility Blog, and the editorial ($$) from the Indianapolis Business Journal titled Root Out Rouge Rogue Attorneys *- and it was not Ogden they were recommending being rooted out.

With the opinion in the recent Dixon case, and the 3-2 vote to uphold the Commission’s agreed discipline in the Noah Holcomb Jr. case, opinion here and previous post here, the Commission’s Board may want to ask whether it is either giving the proper guidance to the staff, or asking the questions of the staff that are needed to protect the public.

Principle or Dumb?

* Of all the edits that a blog requires from time to time, the most painful are the ones found by the brother-in-law.  Thanks Steve.

Will Lawyers get in trouble blowing smoke?; Be careful what you share with an Inmate; 3-2 vote on an Agreed Discipline – what does that mean?

Good to see a Bar Association help out the member lawyers on difficult ethics issues. The King Co. Bar Assoc. in Washington State has asked for guidance from the State Supreme Court on how to handle a conflict in the drug laws. Marijuana use will soon be legal under WA state law, but the federal law has not changed. So is it unethical for a state licensed attorney to use dope? Is it unethical to advise companies on how to comply with the state law on selling dope?

There are other issues where state law and federal law are at odds in various states. Voting rights issues come up, gun possession issues, campaign finance, and abortion laws.  Are lawyers at risk for following state laws, and not federal laws?  Will drug laws be different?

Wait and see.

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When will lawyers learn to be careful when visiting inmates?

Lake County lawyer Carl Jones should have followed the rules about sharing information with a jailed client.  He could have sent the inmate’s girlfriend’s letter through the mail, but it would probably be read, and her promise to lie for the inmate at trial would have been found.

More importantly, he could have told the Disciplinary Commission the truth about the matter when first asked.  When he was later testifying he told a different story, and for that he got a suspension for six months, without automatic reinstatement.

Lawyers interactions with inmates are constitutionally protected, up to a point. The inmate is entitled to private conferences so that a legitimate defense can be presented to the court.  But because we have special privileges, we must be extra careful to follow the rules.  Jones is the second lawyer this year to get disciplined for an improper interaction with a prisoner-client.  Earlier this year this blog reported this story.A Google search found: “About 66,000 results (0.31 seconds)”  to that lawyer’s name – most for this event.

Be careful out there, or more especially, when you are visiting someone in there!

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Value of a Conditional Agreement for Discipline

Plea bargains are a way of life for criminal defense lawyers, and negotiated settlements are the rule for civil litigators, it makes sense to try to work out a disciplinary matter as well.  At least today, that is.

In the Matter of Noah Holcomb, Jr. is a case on point.  Holcomb’s opinion shows that he violated several pretty important rules, 1.15 (3 subsections as different violations) on safekeeping of client funds, commingling client and attorney funds; 8.4 fraudulent conduct (hiding cash from the IRS); 1.5 setting and honoring fee agreements, not charging unreasonable fees, 8.4 conversion, and four different A&D Rules on handling trust accounts.  In addition he neglected client files (Rule 1.3).

By the time the matter got to the Supreme Court he still had not made restitution, but — he had cooperated with the Disc. Comm.

The Court starts its discussion with the following:  “This Court has disbarred attorneys who committed the type of misconduct to which Respondent has admitted.”  The important part is next: “The discipline the Court would impose might have been more severe than proposed by the parties had this matter been submitted without the Commission’s agreement.”

Now the agreement did not result in a slap on the wrist – Holcomb got a three-year suspension, without automatic reinstatement – and the  strong language of warning that reinstatement could be hard to come by:

We note, however, that regardless of the date on which Respondent is eligible to petition for reinstatement, reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b). Moreover, the parties agree that restitution should be a condition for Respondent’s reinstatement. 

The vote to approve the outcome was an unusual 3-2 with Justices David and Rush dissenting with the comment: “believing the Respondent should be disbarred.”

It sounds unlikely that Holcomb will return to the practice, but he might. After reading the opinion, you might wonder, as I do, if we want him back in the profession.

Did the Commission go too light on Holcomb in order to get an agreement, and if so, why? Apparently three justices accepted the reason (assuming it was explained somewhere), although they did not include the reason in their rationale.  Will they accept that next time?  Is this opinion a shot across the Commission’s bow?

Or is it a shot across the bow of those attorneys who stand their ground?