Some corporate lawyers forget that they are required to be licensed in the state where they practice law. Indiana has a special rule for that.
In Ohio, David Troller was suspended from practice for failing to register as a lawyer. So after that, he kept practicing law, did not meet the requirements for a suspended lawyer, forgot to get reinstated, and recently got a new two-year suspension, with six months withheld, and was ordered to stay in the Lawyers Assistance Program of Ohio.. As a corporate employee he might have gotten away, but he claimed the title “Chief Legal Officer” which means you are a lawyer.
H/T Andy Perkins.
***
Scalia Slapdowns are the worse
Lawyers spend their lives dreaming of taking a case to the US Supreme Court. Some make it, a few wish they hadn’t. Steven Lechner was arguing his first case in the Court, before the nine justices. He was trying to make the points needed by his client when out of the blue, J. Scalia says: “Counsel, you are not reading this, are you?”
Lechner froze, because he was. J. Breyer said: “It’s all right.” and broke the silence.
Scalia is a lightning rod for criticism anyway, and the bolts hit fast. Scalia was lambasted, and supported. Finally the issue was more or less decided that Scalia was right, if not kind, to hold Lechner to the Supreme Court Rule #28, which says in part: “Oral argument read from a prepared text is not favored.”
***
Bottle of Red, a Bottle of White, Charged with a Crime, the lawyer must now Fight!
We have written about lawyers doing illegal things a few times, but wine smuggling? Philly lawyer Art Goldman is now charged with Selling Wine without a License, after an undercover investigation showed that he had high-end wines, not found with the state seal, or available in the state-run liquor stores. The police seized about 2,400 bottles of wine, with a value estimated at $200,000. Multiple misdemeanors could result in fines of over $200,000, if he is convicted.
***
Blog for Prosecutors and those who deal with them
If you know a prosecutor who needs to read up on the issues that are critical to them, or if you want to eavesdrop on what prosecutors are talking about, you may want to link to the Prosecutors Discretion blog. Recent topics include the Brady Evidence Dilemma, and Why One Prosecutor will not Talk to Jurors. Good reading.
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.
***
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.
***
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.
****
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
To know a juicy story, with sex, politics, and prominent people, and be forbidden to tell, is tough. It is such a temptation that the authorities wrote a rule especially for lawyers, to threaten us not to reveal confidential information. But Karl Rove is also a tempting target. And there is money in writing books, so they say.
It is tough to deal with one temptation, but two, or three all at the same time? Joseph Stork Smith, of Carmel, IN, did not handle the pressure well, apparently. He decided to write the book, name the names, and tell the sordid stories that he got from his legal client. Some have speculated on who the client is, but the Indiana Supreme Court in its Order did not name her. I respect that. And having read the opinion, it is pretty juicy writing for a per curiam decision.
Smith got a disbarment. End of the line for him. Started practice in 1976, so early he is in his early 60s most likely. Succumbed to temptations.
Maybe if he had not subtitled the book “Machiavelli’s Sexy Twin Sister”….
Once ought to be enough.
Allen County, IN Public Defender Mitchell Hicks, has seen the twice drunken arrestee too many times in the practice, he has to know better, but….“I screwed up,” he said.
A fight with a former client outside a bar… an unregistered gun… trouble. Arrested for a second alcohol offense, he took it like an adult (unlike so many defendants). Sentencing was as follows:
[Judge Fran] Gull ordered Hicks to serve 60 days at the Allen County Jail on the drunken driving charge but suspended 50 days of that sentence. She ordered him to serve 365 days on the charge of carrying a handgun without a license but suspended 275 days.
She then said he could serve his time in the county community corrections program and that his [driver’s] license will be suspended for 180 days.
100 days of home detention. No Disciplinary Action by the Indiana Supreme Court, yet.
***
Biglaw lawyers ought to know!
Some firm names just ring out as BIGLAW, and among the biggest is Baker & McKinzie. Biglaw firms have lots of people around, and they suggest that lots of people provide good protection for their clients. When you get billed for 10 lawyers work on your business matter, you should have especially good protection from the harms that some solo or other errant lawyer might commit.
Not in the case of Martin Weisberg! He was sentenced to two years for committing “a calculate fraud and lies” to steal $1.3M from his securities clients.
The scheme was to put $30M of client’s money into a “trust account,” but he did not tell the clients that it was earning interest. Lawyers use interest free or IOLTA trust accounts for handling small amounts of money for clients, if the interest that would be earned is not worth the time to set up the account. The Rules co permit the earned interest be used for public purposes, instead of simply going to the bank. But when the amounts involved make it worth the time to open an interest earning trust account, the lawyer must do that. Weinberg put $1.3M earned interest in his pocket. That violates lots of laws, and lawyer rules. He got caught. The Sentencing Order included:
[T]wo years in prison,… three years of supervised release, 1,000 hours of community service, a $297,500 restitution order and a $250,000 forfeiture.
I always wonder why if the finding is $1.3M in losses, the restitution and forfeiture together do not equal at least $1.3M – plus interest.
Indy lawyer Paul Ogden writes a blog and challenges authority regularly. Today (Thursday) he threw a punch at the Disciplinary Commission with this blog post.
His trial before the Indiana Supreme Court is next Tuesday, July 30.
****
But Alex, Don’t forget to Fight the cases you are hired to fight.
Alex Voils was hired to fight an insurance company for benefits as the company denied the client’s claim in 2005. In 2009, after repeated requests for action, the client fired Voils. Then he failed to provide the file to new counsel and he ignored the Disciplinary Commission’s request for a response to the grievance.
The parties agreed on discipline of 30 days suspension with automatic reinstatement. The court suggested that punishment might have been more severe if there had not been an agreement. They agreed that Voils violated three rules:
1.3: Failure to act with reasonable diligence and promptness. 1.16(d): Failure promptly to return to a client case file materials to which the client is entitled after termination of representation. 8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.
***
Disability Suspension
We don’t see too many of these, and as the Boomers age, and the Greatest Generation ages even more, we may see these with more regularity. Indy lawyer Mary K. Kleiss was accused by the Disc. Comm. of being disabled “by reason of physical or mental illness or infirmity, or because of the use of or addiction to intoxicants or drugs.” No more is described. Kleiss filed an Affidavit of Consent to the Disability Suspension.
The Supreme Court accepted the filings and suspended Kleiss under the A&D Rule 23(25), and ordered that she may petition for reinstatement upon the termination of the disability. Good Luck.
Georgia lawyer Arjun Kapoor was accused of committing acts of domestic violence. That is a bad thing. But the allegations came through a Family Crisis Center, and Kapoor decided to find out more about the allegations. He demanded the documents held by the Center. They rejected his demands, so he made misrepresentations to the local clerk to obtain a Subpoena Duces Tecum for the evidence. The Center knew what it was doing, so it ignored the subpoena and made a report.
The Georgia Supreme Court was not pleased. He was charged by the Disciplinary authorities, and tried to work matters out. Twice rejected for a “slap on the wrist” by the hearing officer, the recommendation was for a public reprimand. The Court found acts of Misrepresentation – violation of GA Rule 8.4(a)(4)(a) [differently numbered than the Indiana RPC] and imposed discipline.
***
Resigning with Pending Troubles?
Recently several lawyers have “resigned” their licenses while facing criminal charges. One reported in IBJ on June 18, David Rees was convicted and sentenced to four years home detention, two years probation and restitution, for stealing more than $270,000 from an estate he was managing. (The story does not say what happened to the balance of the $400,000 found missing, that was under Rees’ control.)
In Jan, 2013 Rees resigned his license on what appears from the Supreme Court docket as the day disciplinary charges were filed against him.
In June 2012 Bill Conour resigned his license, a month after charges were filed against him by the Disc. Comm.
These cases come under the Admission and Discipline Rules. A conflict appears to exist between Rule 2(L) which prohibits “withdrawing from the practice” while under accusation, and Rule 23(§17), where the provisions allow for such resignations.
Rule 2(l). Affidavit of Permanent Withdrawal. An attorney in good standing, who is current in payment of all applicable registration fees and other financial obligations imposed by these rules, and who is not the subject of an investigation into, or a pending proceeding involving, allegations of misconduct, who desires to relinquish permanently his or her license to practice law in the State of Indiana may do so by tendering an Affidavit of Permanent Withdrawal from the practice of law in this State to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission. The Executive Secretary shall promptly verify the eligibility of the attorney to resign under this section, and if eligible, forward a certification of eligibility, together with the Affidavit of Permanent Withdrawal to the Clerk of the Indiana Supreme Court, and the Clerk shall show on the roll of attorneys that the attorney’s Indiana law license has been relinquished permanently and that the lawyer is no longer considered an attorney licensed to practice law in the State of Indiana.
and
Rule 23. Section 17. Resignations and Consents to Discipline on Admission of Misconduct
(a) An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may resign as a member of the bar of this Court, or may consent to discipline, but only by delivering an affidavit and five copies to the Supreme Court Administration Office and providing a copy to the Commission. The affidavit shall state that the respondent desires to resign or to consent to discipline and that:
(1) The respondent’s consent is freely and voluntarily rendered; he or she is not being subjected to coercion or duress; he or she is fully aware of the implications of submitting his or her consent;
(2) The respondent is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for his or her discipline the nature of which shall be specifically set forth;
(3) The respondent acknowledges that the material facts so alleged are true; and
(4) The respondent submits his or her resignation or consent because the respondent knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, he or she could not successfully defend himself or herself.
(b) Upon receipt of the required affidavit in support of resignation, this Court may enter an order approving the resignation. In the case of consent to discipline, the Commission and the respondent may file a brief regarding an appropriate sanction within thirty (30) days of delivery of the required affidavit. The Court shall then enter an order imposing a disciplinary sanction on consent.
(c) An order entered under (b) above shall be a matter of public record. However, the affidavit required under the provisions of (a) above shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.
That provision in (c) causes some concern, since an affidavit confessing the violation of the rules ought to carry some weight in other matters, if admissible.
Also, a distinction (without much difference) may exist between “resignation” and “permanent withdrawal” as Rees and Conour are eligible to petition for reinstatement in 5 years, while those withdrawing must get in through the Bar Exam or under another provision.
It seems a lawyer who offers to withdraw the law license, and is without a pending problem, should have less trouble seeking reinstatement. Practically, Rees and Conour will never practice again.
***
Epidemic of Suicides in KY
Half a dozen suicides by lawyers in Kentucky has prompted increased concern. The Indiana Law Blog excerpted a story from the Louisville Courier Journal on the issue.
All were men, most were trial lawyers, and the average age was 53.
I have not seen a current table or story on Indiana lawyers, but know of too many who have used a permanent solution for a temporary problem. The 2010 Legal Education Conclave focused a session on Resiliency in the Face of Stress, for law students and the practicing bar and bench. More still needs to be done.
***
Poll Question Result: The Georgia Supreme Court rejected a public reprimand and suspended Kapoor for six months from the practice of law.
Pennsylvania has had a run of bad luck with its judges. In 2011, two judges were sentenced for taking kickbacks for sending kids to a private juvenile prison instead of to juvenile probation. Now a judge is charged with stealing cocaine from the evidence locker on drug cases that had been closed.
Judge Paul Pozonsky resigned abruptly last year, after questions were raised about his residency. Now charges are pending for the alleged theft of drugs from his evidence locker. Pozonsky had changed the local rules for evidence in drug cases, requiring that the actual drugs be brought to court in criminal cases, and placed in evidence. After a while State Police did an inventory of the evidence closet, and found drugs missing and evidence tampered with.
His lawyer calls it “a serious matter, and he [Pozonsky] is treating it as such.” Really serious.
***
Former Virginia Bar President Bills Big – Disbarred
With a billing rate of $850 per hour, former Virginia Bar President Glenn Lewis still thought he needed to pad his bill. But there is the padding of a coffee break while on the client’s clock, and then there is Lewis’s padding.
Suing clients over a bill is often a mistake (one PLP defense lawyer reports that 90% of client claims for malpractice against lawyers are, in fact, cross claims filed when the lawyer first sued for unpaid fees), but when the client you sue is also a lawyer, and the suit is for $500,000 more in fees on a divorce case where the client has already paid $382,000, and the case settled during pre-trial work, that should be a concern that was considered before filing the first lawsuit. Among the charges in the suit was a claim $253,000 in interest on the past due legal fees [doing the math, $253,000 interest on $632,000 in fees, more than 1/2 of which had been paid might be a usurious interest rate].
When a smart client gets sued for fees, and the client can afford a billing expert, the lawyer’s time records will get reviewed, very carefully. Lewis’s records could not stand up to a serious challenge, although he did stand by the accounting offered to the court. When the records started showing more than 30 hours a day billed by Lewis, the situation got sticky for him. He blamed “block billing” but that is no excuse, the Virginia Disciplinary Commission decided. The decision is appealable to the VA Supreme Court.
Lewis settled the civil case with the lawyer-client. He had asked for $500K from the client, but Lewis paid out $102K to the client. Then the trouble got worse for Lewis. Two more former clients sued, they claimed that they had paid, but Lewis did not do the work, and refused to refund retainers. Once things started falling in, they fell hard, these two got default judgments and then more claims came in.
Bar Discipline Commissions understand that working with clients can be tough, but taking clients’ money and doing no work, that is just not acceptable. It is hard to understand why the lawyers violate their Oath of Attorneys.
Oath of Attorneys
FYI – this is Indiana Admission and Discipline Rule 22.
Upon being admitted to practice law in the state of Indiana, each applicant shall take and subscribe to the following oath or affirmation:
“I do solemnly swear or affirm that: I will support the Constitution of the United States and the Constitution of the State of Indiana; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any action, proceeding, or defense which shall appear to me to be unjust, but this obligation shall not prevent me from defending a person charged with crime in any case; I will employ for the purpose of maintaining the causes confided to me, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client at every peril to myself; I will abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will not encourage either the commencement or the continuance of any action or proceeding from any motive of passion or interest; I will never reject, from any consideration personal to myself, the cause of the defenseless, the oppressed or those who cannot afford adequate legal assistance; so help me God.”
The Indiana Bar Fellows dinner will join in reciting the Oath of Attorneys this Friday at the annual Fellows Dinner, this time in Chicago. If you are interested in becoming a Fellow of the Indiana Bar Foundation, call the IBF office.
As a trial, I will be sharing the facts of a few DI cases, and poll the readers how they think the Court ruled, as punishment for the violations. Later in the blog entry I disclose the Court’s actual decision. Are you tougher than a Supreme?
**** William Dittrich neglected several cases over a four-year period. The neglect included failing to do the work, refusing to respond to clients’ requests for information, not placing unearned fees in trust and failing to refund unearned fees.
He knew he had health and depression issues, but did not seek adequate treatment, and placed his interests ahead of his clients’ interests.
***
Unsigned document to file with the court, client forgot to sign her name. What do you do? There are several wrong answers: file it unsigned, ask the staff to sign for the client, or worst of all – sign the client’s name to the document. Ray Robison chose the worst of the options.
Sisters were co-personal representatives, one signed all but one document in the stack of papers. Robison signed her name to the unsigned document, then sent them to the sister for her signatures. Sister noticed that the signature was not right.
Robison cooperated, withdrew without a fight, and the court acknowledged that his purpose was to avoid inconveniencing a client. But it was a violation of Rule 8.4 on fraud, dishonesty, deceit or misrepresentation.
****
SC lawyer David Flowers failed to file tax returns for 2007-2010. An anonymous complainant reported these facts to the South Carolina Disciplinary Commission, and it got ugly. SC found he violated Rule 8.4 of the RPC, together with two other codes of lawyer conduct.
He admits he wants to give up the practice of law, and suffers from the stress of the practice. He has not yet paid the taxes due.
***
Dittrich, got 90 day suspension with automatic reinstatement. Is working with JLAP according to the Opinion.
Robison got an agreement for a public reprimand accepted by the Court.
Flowers got 90 day “definite suspension” meaning that he must file for reinstatement, and he may not file until after he pays the taxes. There must have been some interest in figuring out who the “anonymous source” was, as it made the opinion.
***
Tell me if you liked the polls in the body of the blog.
In NYC a law firm partner got sued for sexually harassing a junior lawyer in the firm. That happens and is hardly news anymore. What got the NY Times to react was – he not only denied it, but he filed a counterclaim. She says he had his way, against her will, several times and places. Her claim, she quits her job due to his actions, and sues him and the firm.
He comes firing back and gets headlines. He says he turned her down and called a cab to take her home after she suggested that “if he wanted, she would not say no!” He says she was spurned, and “Hell hath no fury…” This will be interesting to watch. Embedded in the Times article is the so-called “lurid complaint” and the counterclaim.
Indiana Sr. Judge and practicing lawyer
Lisa Traylor-Wolff is from near my office, and was the judge of the then two-county (Fulton-Pulaski) County Court before we asked the legislature to separate the courts in the 1990s. Several years ago the Pulaski County voters chose another to serve as judge, and she has been practicing since that election – probably 8-10 years ago. She has served as Senior Judge under the Administrative Rules, #5(B), since her return to private practice.
For this Traylor-Wolff gets a lifetime suspension from serving in any judicial capacity, and a one year suspension from the practice of law, with all but 45 days withheld, and two years of probation. Among the probation terms are working with JLAP; stay away from S.W. (is he the victim?); no violations of RPC; and pay costs.
Marion County Prosecutor goes after admitted and alleged bad lawyers
Terry Curry is going after bad guys, and as prosecutor that is his (and his office’s) job. Two recent targets are Indy lawyers David Rees and Steven Geller.
Rees is alleged to have stolen estate funds, after eight years of administration of the estate of his client there was about $400,000 unaccounted for. He also was charged with Obstruction of Justice for filing a false “final accounting” that claimed the missing money was still in the account.
According to the Prosecutor’s press release, Rees has admitted the theft of $270,549 of estate funds, agreed to plead guilty and could face up to eight years for the Class C and D felonies.
Geller was charged with the failure to file multiple Indiana tax returns, earning an Evasion of Tax charge as a Class D Felony. Expect the federal charges to follow.
This is a Win?
The lawyer got sued for malpractice for failure to talk client out of a litigation financing deal. The court ruled that he wins since the lawyer did not refer the client to the lender, did not recommend the use of a litigation financing program, and did not offer an opinion supporting the deal with the lender when the client made the loan.
Elwin Francis suffered a personal injury. He filed suit, but found himself needing funds up front, So, he borrowed funds from Law Bucks, who submitted a lien for $96,000 on the settlement.
The law firm representing Mr. Francis settled the personal injury matter for $150,000, with consent, and when all the expenses were paid, Mr. Francis got a check for $111. He did not think that was enough, so he sued his lawyers. [Apparently the client forgot the $$ he got from Law Bucks]. The NY court looked at the documents, at the duty that the lawyer took on in representing Mr. Francis, and at the facts to see if there was conflicting duties that extended to Law Bucks, and found there was no endorsement or contacts between the firm and Law Bucks.
Getting sued by a client is trouble, but winning is good.
Lesson for us? Stay out of endorsing a lender in a litigation financing program. You may become the guarantor.
***
Charge for that?
Rule 1.8(j) has been around for a while. It is a pretty straightforward rule: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Pretty close to a “Thou shalt not ….” with fewer exceptions than the Rule on Hearsay.
Tom Lowe, a lawyer from Minnesota is old enough to have been around when the MN Supreme Court enacted that rule there. Sexual relations rulings in ethics cases have been around for decades, and the Rule changes started popping up in several states in the late 1990s (IL 1997, Kan 1998). The no-sex Rule came about as a part of the McCrate Amendments to the Model ABA Rules of Professional Conduct in 2002. Indiana adopted the current Rule 1.8(j) on Sept. 30, 2004, as part of the comprehensive update of the RPC (at p. 39 of the Order)*
So Lowe not only violated that rule, but, to add insult to injury he added the time he spent with her (a family law client) while he breached the rule to her bill. [insert your inappropriate hourly billing (or quarter-hour or one/tenth hour) or other time based billing quip at this spot – I am trying desperately to leave those and other puns out of the post.]
There are important reasons for the rule about sex with a client, and I am not making fun of those, but his billing for his time? That reminds me of this song…
Lowe got an indefinite suspension of his license, with a minimum period of 15 months before he may apply for renewal. Well done MN.
* I chaired the ISBA subcommittee that reviewed the ABA proposals and led to the addition of 1.8(j) to the Indiana Rules of Professional Conduct. Thanks to my subcommittee.
***
Client Neglect Stemming from Mental Health Issues
The front page of the Indiana Judges & Lawyers Assistance Program website states: Research has shown that lawyers may suffer from substance abuse and depression at a rate higher than the general population. Experience has shown that lawyers may be more reluctant than others to seek help for their own problems.
One of the critical consequences of mental health problems is the impact on our clients. As stated by JLAP Ex. Dir. Terry Harrell: “When I hear that a good lawyer, with no history of neglecting clients, is not returning telephone calls — my radar goes up and I start looking for other signs of depression.” She shares statistics on the increased level of mental health problems that should cause every lawyer to take a slow look in the mirror. Women lawyers appear to have a 10% greater problem than the general female population, while male lawyers reportedly suffer a problem with depression at a rate more than 200% of the general male population.
When lawyers neglect clients for any reason the clients often get upset. If there is not a good reason for the perceived neglect (such as, “I am in trial all month…”) and the client does not see a way to successfully get the lawyer’s attention, a complaint to the Disciplinary Commission may be their only recourse.
Several cases recently have highlighted the issue of mental health, and I will focus on one. This lawyer (I don’t need to name him) recently stipulated to the following facts: The misconduct includes neglecting clients’ cases, failing to do the work for which he was hired, failing to respond to clients’ requests for information, failing to inform clients of the status of their cases, failing to safeguard unearned fees by placing them in a trust account, and failing to completely refund unearned fees. Respondent knew he was suffering from depression and other health related issues that interfered with his ability to attend to his clients’ needs.”
The lawyer and the Commission agreed that these violations of the Rules occurred: “The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct: Rule 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. 1.15(a): Failure to safeguard property of a client. 1.16(a)(2): Failure to withdraw from representation when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. 1.16(d): Failure to refund an unearned fee promptly upon termination of representation. 3.2: Failure to expedite litigation consistent with the interests of a client.” That is quite a list.
There is the specific requirement under Rule 1.16(a)(2) that states the affirmative duty that a lawyer “shall not represent a client…if: (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”
We need to talk about this situation more. There was this previous post on Age Related Issues in the Law, but it did not tie the violation to 1.16(a)(2). Apparently we need to have more discussion about this. There are 10,000 Baby Boomers hitting 65 every day. They are not all lawyers, but enough of them are for problems to show up.. 65 is not the magic age where age related cognitive disorder hits, but it is one birthday closer to the issue showing up.
Mental illness extends far beyond age related disorder, and beyond depression, bi-polar disorder and other issues. But it hits lawyers in greater numbers than the general population. When it hits, all the suffering lawyer’s clients are affected. Be aware.
Drugs and alcohol are problems for lawyers. The evidence is clear that many problems come from addictions. The Indiana Supreme Court and Disciplinary Commission recognizes that reality with greater frequency. Take Marla Muse’s case as an example. The facts are sketchy in the opinion, but they start with a plea of Guilty to Possession of Marijuana as a Class D Felony.
RPC Rule 8.4(b) states that “It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s … fitness…” Ms. Muse agreed that she violated that standard. The court’s sanction is as follows:
For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning February 15, 2013, with 30 days actively served and the remainder stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:(1) Respondent shall maintain complete abstinence from mind-altering drugs during her probation.(2) Respondent shall have no violations of the criminal law of this state or the Rules of Professional Conduct during her probation.(3) If Respondent violates her probation or the JLAP monitoring agreement, the Commission will petition to revoke her probation and request the balance of the stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).
It seems that a period of probation, working with JLAP in a well monitored probation program will do more to protect the clients of Ms. Muse than any longer suspension and return to the profession without requiring some assistance. *
***
How bad can one lawyer get?
Amy McTeer had it bad for the guy. Amy was a criminal defense lawyer, who forgot that you want to be sure at the end of the case it is the client who goes to jail. She worked hard, and got him out of jail, the illegal way – she helped him escape. To compound matters she posted photos on Facebook of her out with the escapee. She was arrested in 2011 for these matters, and the Oklahoma Supremes finally accepted her resignation of her license.
In the matter of Mark J. A. Hughes, the Presiding Disciplinary Judge accepted a consent agreement between Hughes and the State Bar and ordered him disbarred.
In three cases, the State Bar charged that Hughes revealed information relating to the representation of a client without informed consent, engaged in conflicts of interest and failed to take steps to protect his client’s interests upon termination of representation. The State Bar also alleged that Hughes failed to maintain confidences and preserve the secrets of his client, engaged in unprofessional conduct, and made disparaging, offensive, and provocative comments and accusations about his client and client’s family members in their presence. Finally, the State Bar charged that Hughes engaged in the unauthorized practice of law while suspended. Hughes agreed not to contest any of the charges.
As a result of the consent agreement, the Presiding Disciplinary Judge issued an order on May 1, 2012, declaring Mark J. A. Hughes’ disbarment. Hughes must pay $1,202 for all costs and expenses associated with the State Bar of Arizona’s investigation.
The Indiana Supreme Court sent Hughes a Rule to Show Cause why similar treatment should not occur here in Indiana. The standard under the A&D Rule 23(28)(c) is that similar treatment should occur here. No reply as to why it should not.
Lawyers with Troubles 