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
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Lying to the Bar Exam Board – Bad idea; Legal Fees pay for Legal Work, not Housekeeping; Age Related Issues in the Law

Liar, Liar, License on Fire

Leah Harmuth, a Calif. lawyer former lawyer, lost her license when the Board of Examiners found that she had lied about her alleged disability and need for extra time to take the Bar Exam. She said that she suffered a disability and needed extra time, and a quiet place to take the exam. She took it, passed and later moved to NY, where she tried it again. The NY examiners checked her story, found she lied to them and they reported the information to CA.

Oops. Honesty in your bar application is critical. After nearly three years as a lawyer, including time at one of San Francisco’s premiere law firms, known as MoFo, she now is not a lawyer.

I have served on the Indiana Supreme Court Character and Fitness Board, and have spoken at three of Indiana’s four (soon five) law schools about the Bar Admission process. One more horror story to share with the students. These pop up occasionally. Kind of like Coach O’Leary. You have to be scrupulously honest in a job application. A lie on the application can cost you your license to practice law at any time. No statute of limitations on that offense.

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What can you do for lawyer’s fees? Get Suspended

Katherine Guste was a nice woman, she helped an old man with his legal needs, by preparing a Power of Attorney for the client. Then the client, who suffered a debilitating disease needed some additional legal help. He had an accident, and was charged with hit and run. She handled the criminal matter. Then Guste started helping him with personal matters, driving him places, helping him move from one nursing home to another. Nice things, but he had agreed to pay her normal hourly rate as a lawyer for performing those non-legal services. Eventually she claimed she had provided 220 hours of service, after he decided he had been hoodwinked, and complained to the Louisiana Disciplinary Commission. But she was paid for over 250 hours.

That did not matter. The LA Supreme Court decided that lawyers’ hourly fees are unreasonable for general labor work and she could not mix the two types of work for the same fee. Rule 1.8 prohibits mixing work like this. She had other discipline matters too, and ultimately she got her license suspended for two years. Ouch.

Be careful charging lawyers fees for standing at the copy machine.

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“What do we do with a General, when he stops being a General…”*

[*words and lyrics by Irving Berlin] In the movie musical White Christmas, Bing Crosby’s character sings about what to do with General Waverly after the war and he is no longer in charge. Lawyers see this dilemma as well with our older members of the Bar.

The Ohio Supreme Court this week issued an “age-associated cognitive disorder” opinion for a 71-year-old lawyer who was charged with an ethical violation during the handling of a couple of estate matters, and was confused in his explanation to the disciplinary commission. Raymond O’Neal complained about his memory problems during his testimony, so the commission had him submit to a psychiatric exam by a medical professional. The doctor found age-associated cognitive disorder, and recommended some age-appropriate strategies for minimizing the effects of the disorder.

The Ohio Supreme Court suspended O’Neal for two years, withheld 18 months, but started off with a six month suspension. During the six months before return, he must undergo a thorough geriatric psychological assessment and prove that he will be fit to return to the competent, ethical and professional practice of law. Not sure how he will do that based on the problems he exhibited to the court and outlined in the 9 page opinion.

Congratulations to the Bar and Bench in Ohio. This is a difficult area of enforcement, but the duty to protect the clients is important. I invite older lawyers to discuss this issue with family and partners.