Practice while suspended – bad idea even for “corporate lawyer” — Supreme Slap-down? Bottle of Red? — What Do the Prosecutors Think?

Get a License

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.

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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.”

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 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.

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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.

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.

Being Kind to Lawyers for Christmas, but There is Still News

ABA Accreditation Issues

Law schools are supposed to play by a set of rules issued by the American Bar Association, Law School Accreditation Committee.  They are regularly audited for their performance, and deans have been known to lose their jobs for weak reports.  Fines are pretty unusual for violation – But the Rutgers School of Law – Camden just got whacked.

Admission credentials are pretty important, but Rutgers found a way around the normal LSAT-GPA process, unsuccessfully.  It violated Standard 503 and Interpretation 503-1 in allowing admissions off the grid.

$25,000 is a small fine if you are a big time coach (Steelers’ Coach Tomlin as an example), but in the ABA world, with the dual requirement to post the findings on the law school website for a full year, it makes pretty big news.  Rutgers is already in the news for a coach’s actions, basketball coach Rice apparently was too tough on players, fired and sued.  New Jersey has some catching up to do with the coach situation, but no Indiana law schools are in trouble like Rutgers – Camden.  NJ has two law schools, similar to Indiana University. Rutgers’ are in Newark and Camden. Indiana University’s are in Bloomington and Indianapolis.

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Ethics Update – Get with Tech

The ABA Ethics 20/20 report tells lawyers that to be considered competent, they must “keep abreast of changes in the law and its practice, including the benefits and risks association with relevant technology. . .

Oklahoma Bar Association Management Assistance Program Director tells lawyers “You cannot be Luddites” in a blog post here.  Comment 8 to Rule 1.1 of the Rules of Professional Conduct was amended by the ABA recently, and submitted to the states for consideration and adoption. He identifies other articles concerning lawyers messing up trials by not understanding such programs as Twitter and Facebook.  The solution suggested by some – talk to the younger lawyers or staff members of the firm.

For Solos, it means get thee to a Solo and Small Firm Conference of your choosing. They are great sources for tech lessons. Indiana’s SSF conference will be June 5-7 in French Lick, IN.  Check the Indiana State Bar website for more information.

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Finally Good news for Young Lawyers

The pipeline behind you is emptying, the pressure of ever more lawyers has dropped.  The current 1L class is the smallest in 45 years, even with more law schools being built. Another decade of this, and the ratio of lawyers to clients, at least at the retail end of the practice might be back in balance.

I will now take a couple of weeks off the blog, to give you a chance to avoid looking over your files during the holidays, to see if you have committed any recent misdeeds.

Merry Christmas, or whatever holiday you choose to honor during the early winter season.

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

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?

Slap for not Following Trial or Appellate Rules; CFAF & Attorney Surrogate Issues: Outing your Client, not a good thing: Let’s Party

Lawyers Need to Know (or read) and Follow Rules

It seems to be painful to be a stickler for rules (which appellate judges often are) and read some appellate submissions.  From time to time the Court of Appeals will send a subtle message to the Bar about the quality of advocacy, but subtly was not the tool used in Judge Bradford’s opinion in Duensing v. Johnson.  The appellate lawyer was 3 for 3 in footnotes admonishing him for rules violations or for confusing the court. A couple other chiding comments come through over the weakness of the arguments submitted.

Appellee lawyer also took a shot for citing a NFP opinion as authority for an argument as well.

Read the case and remember that some trial judges also expect the lawyers to know the difference between different kinds of motions made at different times in the trial.

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Hamilton the Birdman – Two Lessons in One Headline:  What do you know about CFAF? How are you with the Attorney Surrogate Rule?

Bradley Hamilton, a Kokomo lawyer appears to have closed shop and fled to Australia.  He had some notoriety in the Howard County area for his willingness to “flip the bird” to news cameras.  The story reports that several clients had paid funds to Hamilton, and may have lost their retainers.  No criminal charges have yet been filed.

Local Kokomo lawyer Brent Dechert is stepping up to help the clients of Hamilton.  He filed a Petition for Appointment of an Attorney Surrogate* to allow him to access the files and trust account of Hamilton.  The Petition was granted and Dechert has given public notice of the appointment.  This results in the clients getting their files back, or transferred to a new lawyer who will work with them on their matters. Dechert said that he does not handle the kinds of cases Hamilton did, so there is little likelihood that he will take over many of the cases.

Not reported in the article is the existence of the Clients Financial Assistance Fund, of the Indiana State Bar Association.**  The fund, created by the  ISBA several decades ago, provides a partial remedy to those clients who have had funds stolen from them by their lawyer.  An individual client can recover up to $15,000 with a standing cap of $50,000  total reimbursement for all client losses due to the acts of a single lawyer.

The CFAF committee meets as needed (and fortunately it is not needed too often) to consider and investigate claims.  The funds in the CFAF are a part of the annual dues of ISBA members. The claim application is available.at the ISBA website here.

*  I am chair of the ISBA Special Committee on Attorney Surrogate Rule

**  I served more than ten years as a member of the Clients Financial Assistance Fund Committee for the ISBA.

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Sharing evidence on YouTube can get you suspended.

An IL lawyer thought his client was entrapped by police in a drug bust, so he posted the undercover video taken by the police online.  He titled the video  “Cops and Task Force Planting Drugs.”

By doing so he exposed a confidential informant of the police department, and he violated the client’s confidentiality without informed consent. The Disciplinary Counsel also accused Jesse Raymond Gilsdorf of Mount Sterling, IL with implying police wrongdoing without evidence to back up the charge.

Apparently he watched the video on a small monitor and thought it showed entrapment, but after posting the video, and then seeing the recording on a large screen monitor realized it proved the client’s guilt. She took a plea, he got charged.

The IL Hearing Board recommended a five month suspension of Gilsdorf’s license.  We will see what happens.

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Party in Rochester, courtesy of PWP

This Friday, the Peterson Waggoner & Perkins law firm will host “A Grand Night for Music III.” It is an occasional celebration for clients and friends of the law firm  The Atlanta Music Hall Band, straight from Atlanta Music Hall in Atlanta IN, will perform Swing and Jazz standards, and the dance floor will be out. Love to have you here. Call the office for tickets.

Breathing Space – IND lawyers and 1st Amendment Rights; Lawyers and Child Porn – Problem in CA; Rule 1.8(a) will be Enforced.

CONGRATULATIONS TO SUPREME COURT

Faced with a tough question about the interplay between the rights of a group of defendants to a fair trial, and the feelings of a trial court judge, when her possible bias is pointed out, the Court, in one of two disciplinary cases filed against the lawyers who were trying to protect their clients, under the Rules, found no violation of the Rules of Professional Conduct. This issue was raised here a couple weeks ago.

Thomas M. Dixon, of Osceola, outside of South Bend, together with David A. Wemhof, of South Bend, was accused of violating Rule 8.2(a) for the contents of his Motion for Recusal.   The Rule  says;  “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”  The Hearing Officer found a violation, and Dixon submitted that ruling to the full Court.  The Court in a 4-1 opinion held no violation occurred. 

The concern of lawyers in representing clients who fear a biased judge would have been palpable if the court said that an allegation of bias is proof of “a statement..false… concerning the qualifications or integrity of a judge.”  Rule 11 requires that the lawyer endorse the statements, but most are statements of opinion, most often the opinion of the litigant, who is the one with the right to a fair hearing.

In this case, the judge who was asked to recuse was also the judge who ruled on the request, and who filed the complaint.  And Dixon did good legal work here. The Court distinguishes this case from the Wilkens case of 2003, showing the efforts Dixon put into supporting the statements that were made about the need for the trial judge to recuse herself.

Good for the Court.  There are some limits on the authority of the Disciplinary Commission to protect judges from the rights of litigants through the attacks on their lawyers.

Let’s see if this portends any outcome in the Wemhof or Ogden cases now in the process.

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Child Porn, and other automatic disqualifiers 

Gary Grant, a Cal lawyer, was found by the ICE (Immigration and Customs Enforcement) to have used email to register for a PayPal account, in order to purchase and download child pornography.  With over 100,000 images deemed pornographic, ICE found 19 photos and one video of youths who appeared to be between the ages of 14-16.

Grant pleaded “innocent” but later admitted that a few photos of underage girls were downloaded, and promptly deleted.  Such a deletion does not remove the photo from the computer.  He pleaded guilty to one charge of felony possession, and the prosecutors dismissed two other charges: the sentence was 90 days served three years probation and sex registration for life.  Grant later violated his probation, and spent an additional 183 days in jail.

The Cal State Bar automatically suspended Grant’s license, pending hearing. The Bar Court trial judge recommended disbarment, but the Bar Review Department later recommended a suspension for a period. Bar Counsel appealed the recommendation to the state Supreme Court, which at this time has not ruled.

The question before the court is the “moral turpitude per se standard” California has for lawyers.  If a lawyer is convicted of a crime that qualifies as moral turpitude per se, the disciplinary proceedings are a summary disbarment.

The article on this in the California Lawyer (callawyer.com) describes the hearsay evidence problems, since the Bar Counsel did not have access to the images, but had a computer analyst “describe the images” she had viewed. The appeal is from the Review Department panel’s conclusion that felony possession of child pornography meets the moral turpitude per se standard.  As Grant was charged with having 2 out of 100,000 images that qualified, and there was no “proof that Grant sought out child pornographic images, displayed a sexual interest in children, or otherwise intended to harm a minor” according to Judge Catherine Purcell, and it was a case of first impression, the decision was for suspension.

The history of Cal discipline for child pornography cases is described in the article.  The conclusion, in the 18 cases since 2007, none of them have been summarily disbarred.  There have been 33 summary disbarment actions in the 2011-2013 period, most for forgery, grand theft or other frauds.

The question arises: What is the purpose of the Bar Disciplinary Process?  To punish bad people who hold licenses to practice, or to protect the public?

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AUTOMATIC FEE INCREASES ARE SUBJECT TO RULE 1.8(a)

Ellen Corcella started working on a case in 2009, with a written fee agreement providing for hourly fees of $175 per hour.  When the case concluded in 2011, she billed the clients more than 60 hours at her then rate of $200 per hours.  Client files grievance, she refunds the excess of $1580 and all is well, right?

Not quite.  During the representation, the Court found that Corcella changed the fee agreement twice. The first time to a contingent agreement, then to a blended contingent and hourly fee agreement.  At no time did she give the Rule 1.8(a) warning.*

Let’s go over this again.  If you change a fee agreement, written or not, that does, or may favor you as the lawyer, you must give a Rule 1.8(a) advisory to the client.  Tell the client to take time to obtain an independent professional legal opinion that the transaction is fair and reasonable to the client.  You also must determine that the modification is fair and reasonable, and is understood by the client.  Finally, get the approval of the change in writing.  Follow the rule, with due regard for that part of the Comment as applies.  See below.

*  Rule 1.8. Conflict of Interest: Current Clients: Specific Rules

(a)    A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1)    the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2)    the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3)    the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Comment 1 to Rule 1.8(a), in part:

It does not apply to ordinary initial fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client’s business or other nonmonetary property as payment of all or part of a fee. Paragraph (a) applies when a lawyer seeks to renegotiate the terms of the fee arrangement with the client after representation begins in order to reach a new agreement that is more advantageous to the lawyer than the initial fee arrangement…

Lawyer’s Speech and Advertising – Trouble in the Making

Ethnic Slurs Will Not Be Tolerated

“Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with.”

The lesson of Joe Barker is to not use this method of trying to resolve a parenting time issue. At least I hope that is the lesson, because the only other potentially “burdensome” act is to state that “we’ll be demanding she be put in JAIL for contempt of court.” (emphasis in original).

The Indiana Disciplinary Commission filed charges and the Supreme Court imposed a 30 days suspension from the practice effective Oct. 14, but not allowing Barker to undertake new legal matters between Sept. 6 and Nov. 14.

Costly outburst, for aggressive advocacy.  No prior disciplinary issues, but Barker “has no insight into his misconduct.” Charges filed in 2010, and just now being concluded.  This matter was heard by Judge Kim Brown acting as the hearing officer for the Indiana Supreme Court.  Judge Brown has her own problems now with the Judicial Qualifications Comm. and one of the charges she must answer to related to the length of time she took in completing this matter.

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Faxing Those Canned Newsletters as a Means of Advertising 

Many of us get and a few of us have used the canned newsletters that inform our clients and potential clients that we are current on some legal topic or another.  And 25 years ago the fax machine helped make sharing our knowledge as cheap as the price of a phone call.  Now with the internet, it is even cheaper, unless!

Greg Turza, an IL lawyer got caught up in the practice of faxing newsletters to lots of folk.  He had 200 people or businesses he would fax his newsletters to.  He forgot to read the articles about the Telephone Consumer Protection Act of 1991, 47 USC 227.  But a few of the recipients did not overlook that issue.  The federal law states that senders must have consent to fax advertising materials, and that unwanted faxes must have opt-out provisions on the materials. The penalty is $500 per fax, per recipient. Oops.

$4,215,000 penalty and judgment against Turza for 8,430 faxes was upheld in the 7th Circuit. Will he pay it?  If he does, then the opinion by J. Easterbrook takes on some interesting aspects with what happens to the damage award.  It looks like the lawyers will demand their $1,430,055.90, and lead plaintiff will expect his $7,500 for the 32 faxes (seems like it should have been $16,000).  Who after that will get paid?  Remanded to determine after the $1.437M is paid into the court.

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Lawyer’s Speech and Paul Ogden

Anyone who cares about the boundaries of lawyers’ freedom of speech rights and the consequences of the disciplinary process in Indiana must pay attention to the ongoing saga of Indy lawyer (for now) Paul Ogden and his long battle with the Disciplinary Commission, former Executive Director Don Lundberg, current Executive Director Mike Witte, the Supreme Court, and a Hendrick County judge in a seemly private email.

You can catch up by following this link to Ogden’s blog site, the tagline Disciplinary Commission, where it appears he is telling his side of the story. He also links to the Indiana Business Journal’s editorial on the priorities that the Disciplinary Commission has shown in pursuing Ogden instead of others, including Paul Page, David Wyser and the handling of William Conour.

The current DI matter, criticizing a judge in violation of the rules. has been heard by the hearing officer who will make findings and a recommendation to the Supreme Court.  Ogden predicts that he will lose his law license.

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Seeking Recusal as a Basis for Discipline? 

In a story that has not made local impact, except for Ogden’s blog, a pro-life website Life Site News in 2009 reported that a couple of local lawyers were seeking the recusal of a South Bend judge due to perceived prejudices of the judge’s husband, a noted advocate for abortion rights. The defendants before the judge were pro-life advocates arrested for protesting on the Notre Dame campus when President Obama spoke at graduation.

Ogden reports, and I have verified by the Clerk of the Supreme Court Docket Sheet, that disciplinary charges are on file against Thomas M. Dixon and David A. Wemhoff, the lawyers in the ND88 case.  The docket sheet does not inform the nature of the charge, but Ogden says the recusal issue, as an unwarranted attack on the judge is at the heart of the matter.

This will also bear watching, if you have a tendency to speak the truth to power, or try to protect your clients from a judge who should not hear a particular case for a particular litigant.

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I remembered these matters last week, when I got a call from a lawyer in Indianapolis, to ask about the judicial temperament and other qualities of a certain judge in Northern Indiana.

I apologize to you in advance, but for now, if you call and ask about the character, quality or work ethics of any judge, please understand that my “walks on water” response might be code.  Or it might not.

In my opinion, lawyers must be able to state facts and reasonable (to the reasonable person standard) opinions about judges in pleadings, (especially in recusal motions) and in conversations with clients, lawyers and the courts.  Judge Witte benefitted from those kinds of comments in his time on the bench, and in moving to the Commission. Other judges should have that benefit, or if they are poor judges, that burden.  We do this justice thing for those standing before the bench, not for the one on the bench or the ones at the bar.

It is dangerous if we lawyers cannot protect the rights of our clients, under the rules, by seeking the recusal of judges who are bad fits for the clients’ cases, just like we are duty bound to seek the dismissal of a juror who has some bias or prejudice against our client.

KEEP A WATCH OUT,  as Indy lawyer Patrick Olmstead and I will be speaking on advertising and ethics at the 2014 Solo and Small Firm Conference in June 2014, at French Lick.

Hiding Things Brings Trouble: Assets, Evidence and a Court Order.

Hiding Assets

The case started for Washington State lawyer, Thomas McGrath when his wife, a chiropractor, started a fight with her ex-employee.  Forbes reports on his bad actions: first to represent his wife in a case where she lost a judgment of $500,000; and then to do improper asset protection in violation of the RPC.

Shifting assets when the case is going badly is a time honored tactic, but shifting a spouse’s asset through the office trust account in violation of Rule 1.15 is still a forbidden mixture of personal assets with clients’ assets.

Filing bankruptcy is not generally improper, but falsifying the Bankruptcy Petition is a federal felony and an ethical violation.

As Jay Atkisson, the Forbes columnist explains: “This case has nothing to do with legitimate asset protection planning, and everything to do with plain old fraud on creditors.”

What do you think the Washington State Supreme Court did to the husband lawyer, just trying to help his wife?

***
Hiding Evidence on Facebook:

Matthew Murray was slow to advise his client about the eternal nature of electronic evidence. Murray’s client lost his wife and filed a wrongful death case.  Among the damages claimed was loss of love, affection and companionship.  After being asked to produce “screenshots” from his client’s Facebook account, Murray told his paralegal to make sure the account had been “cleaned up. ” The plaintiff-client’s photos disappeared from his Facebook wall, but the defense counsel already had 16 of them, including the one that showed him wearing a T-shirt that said “I ♥ hot moms” while holding a beer, soon after the wife’s death.  Since the suit was for the losses he suffered due to the wrongful death of the plaintiff’s wife as caused by the defendant, the photo was thought to be material to damages.

First, the trial court ordered the payment of defendant’s attorney fees against Murray and his client in the amount of $722,000 and slashed the jury’s $8.5M verdict. The VA Supreme Court reinstated the verdict, but allowed the attorney fees order to stand.

It also found Murray violated the RPC and entered a sanction: What would you have ordered?

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Hiding the Court Order?

A busy time for the Washington State Disciplinary Board.
And Tom Kamb was a busy lawyer. He had a criminal law practice, mostly DUI defense work. On the day of the problem, he had 20 case hearings set in the morning.  He got a plea on one case, which was submitted, and approved by the court.  He forgot to get the breath test suppressed, which appears to be a normal event, since suppression of the breath test protects the client’s driver’s license.

Kamb later had a hearing with the Dept. of Licensing’s ALJ about his client’s driver’s license, Kamb reported that he had gotten the breath test suppressed in the criminal charge.  Now he had to find a way to prove that.  Bad idea.  He asked for the closed file from the clerk, and penciled a note about the test being suppressed on the signed order. The now suspicious clerk refused to provide him with a certified copy of the newly forged order, and sent him to the prosecutor.  The prosecutor agreed to a retroactive suppression, not knowing that Kamb had lied to the DOL’s ALJ, and forged the court’s order.  When Kamb returned with the note from the prosecutor, the clerk sent him to the presiding judge who was not pleased.

The judge files disciplinary charges, and after the investigation by bar counsel, there was a finding of Kamb’s guilt on three counts:

Count 1 charge[d] Kamb with misrepresenting the existence of an order suppressing his client’s breath test to the hearing officer in violation of RPC
3.3(a)(1). Count 2 charge[d] Kamb with changing Judge Svaren’s order in violation of RPC 8.4(b ), 8.4( c), and 8.4( d). Count 3 charge[d] Kamb with violating RPC 1.3 which  requires a lawyer to act diligently and promptly, by failing to discuss suppression of the breath test with [prosecutor] Johnson before the DOL hearing.
Kamb challenged the Hearing Officer’s findings. The court found his version of facts lacked credibility.  The transcript of the ALJ’s hearing proved the timeline and his misstatement of facts about the existence of a court order that helped his client.
What did the WA Supreme Court do in this case?

Poll Results:

1. Washington Supreme Court disbarred the lawyer after 40+ years of practice – citing the filing of false filings and claims, and lack of remorse.

2. Murray got a five-year suspension from the practice of law.

3. The opinion cites as authority: “The American Bar Association’s Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992)” as the guide for lawyer discipline in Washington State.   Kamb got disbarred.

Neglecting Clients Here and There: Indiana; & New Jersey

Neglecting clients is a bad thing to do. Let’s learn the lesson at someone else’s experience, and not do it ourselves:

Indiana:

In 1997 Biomet, Inc. a worldwide ortho manufacturer from Warsaw IN hired Kent Frandsen, of Parr Richey law firm, to file a legal malpractice claim against Barnes & Thornburg for the way it handled a patent infringement case.  The firm filed the suit followed by, as you can imagine, lots of intrigue, including an interlocutory appeal decided in 2003.  After the Court of Appeals opinion approved the case moving forward, nothing happened on the case.

In 2006 B&T sought a Rule 41(E) dismissal that was heard, with an honest discussion of the delay at the hearing:

THE COURT: What has happened ? Why has nothing
happened since transfer wasn’t granted, sir?
COUNSEL: That’s a fair question, Your Honor. First of
all, I was stunned personally when the Court of Appeals
issued the decision it made. I was extremely busy in my
practice. This case takes a lot of time to put together. It has been one (1) of those cases where I couldn’t bring myself to dig into it enough to be ready to do what needs to be done. This is not an automobile accident case, Your Honor.This involves difficult issues that were involving patent litigation that frankly has been very uncomfortable for me and I don’t know that I’ve ever felt competent to deal with the underlying merits of the judgment that is at issue in this case. *** When that did not come, … I simply could not get to where I could take or have anyone else take the time to get into the merits of the case. I take full responsibility for it and we were in communication with Biomet. We indicated to our client that we would do things but we simply didn’t do them. We would get going on the case. Biomet seriously wants this case pursued and resolved on its merits. We’ve not been able to get that done. ***
THE COURT: … The question is if we talk about the
judicial system, why should I penalize this Defendant ?
Why should I penalize this Defendant because of what you have described as your inaction, sir ? I guess I want to try to understand that.
The court did not understand that, and the client did not either, later filing a malpractice case after the case vs. B&T was dismissed.  Biomet got a partial summary judgment v. the law firm and lawyer, and then Parr Richey appealed. The question was whether there was a duty and a breach, and it was decided (in a NFP opinion*) there was.  Other issues remained for trial.
*While NFP opinions have no precedential value in a court of law, they are great teaching tools in the hands of a blogger! 
Be careful taking on more than you and your firm are capable of handling.  Stay on the case even when things get busy or you get distracted.  The client is still counting on you.
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New Jersey
“They are pestering me!” “Their calls got nastier and nastier, and quite frankly I did not need that.” “I fired them [the client], told them to get a new lawyer!”  NJ’s Disciplinary Review Board did not take kindly to Victor Azar’s attitude about people who had hired him, paid him money and then got neglected.  The board objected to his defensive responses to the clients’ seemingly legitimate complaints.  He also withheld their files.
The report was complimentary about his skills in getting clients and their retainers, but suggested that the follow through lacked a lawyerly precision, and he “neglected, if not grossly neglected” the client’s interest and “engaged in a pattern of failing to communicate” with his clients.
Azar is facing a reprimand at DRC’s recommendation.
h/t Vic Indiano