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.

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…

Ethics and Conflict Issues in Business Representation; Conour Questions –

BUSINESS ETHICS FOR LAWYERS

I will be doing a seminar on Feb. 28 for ICLEF, the legal education provider created by the Indiana State Bar Association in the 1970s to help get lawyers better prepared to handle their clients’ legal matters. Now a stand-alone not for profit corporation ICLEF is the leading provider of Continuing Legal Education in Indiana..

The seminar title is Developing and Representing the Business Entity, and my portion is Ethics in a Business Practice. We will be discussing the Rules of Professional Conduct, the Traps of working with businesses and the Remedies for lawyers and businesses if unethical events occur.

In focusing on the Rules of Professional Conduct, we will discuss recent cases in state and federal courts where the clients complained that their lawyer had jumped sides, and how the courts and lawyers handled that issue. Motions to Disqualify some of the biggest law firms you know will be reviewed, and we will review how the courts’ findings and orders, when presented with valid conflict issues protect the business or the lawyers.

We will also review other events that may prompt a client to think that the loyalty obligation discussed in comment 1 to Rule 1.7 has been violated.

Program chair, Jeffrey Nickloy (a lawyer I have sent clients to for complex issues) has brought together a faculty of some of the brightest lawyers in Indiana to present on various topics that day. The Business Law Section and the Ethics Committee of the ISBA will be well represented.

Registration materials are available here.

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Bill Conour

The Indianapolis Star had a long story about Bill Conour on Sunday, here.  I never worked with Bill, but you could not be a lawyer in the state for the past 30 years and not know about him, his practice, or his atrium.

I will do a more thorough analysis of his fall, his plea, and his resignation in a few weeks, but I would like a few comments about Bill from those of you who knew him, worked with him, did or did not get cheated by him.

I will say (treading carefully as a Maurer grad, talking about our friends and fellow IU law siblings at McKinney) that the first time I walked into the Inlow Hall atrium, and saw the decor, I overheard a comment (it has been years ago, maybe it was my comment) that “the decor looks like a 1950s prison cell block,” with the metal wrapped columns to the ceiling.  So long as it carries Bill Conour’s name (together with that of his ex-wife Jennifer), the image will fit.

Please share comments on Bill and his situation, if you will.

Do Not Bribe a Judge, Ignore the Disciplinary Commission, or Create a Conflict with your Clients

Even Attempting to Bribe a Judge is not Good Conduct

An attempt to bribe a judge is not a good thing for a lawyer to try to do, hiding it and then getting caught makes for the basis for a Slap-down by the subsequent judge.

When the investigating judge uses 123 pages to describe, in part, the evidence of the bribe attempt by the Eaton Corp.’s company lawyer Mark McGuire, it is the beginning of a bad time.  You can read the article here and see the links it has to the ruling.  Bad days start with these kinds of rulings. It will likely get much worse in the coming days for McGuire.

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Cooperate and Respond when you get the Certified Letter

Among the most important days in a lawyer’s life is the receipt of a certified letter from the Indiana Supreme Court Disciplinary Commission’s Executive Director.  Not a pleasant day, but an important one.  This letter means that someone has filed a complaint that you broke the Rules of Professional Conduct and your license is now at risk.  It happened to James Nafe, twice, and he got in trouble for not responding either time. In March 2012, and again in April he was Suspended from the Practice of Law for Noncooperation.

Lawyers must take the disciplinary process seriously, and if they don’t the Disciplinary Commission will ask the Supreme Court to suspend their license to practice. There are few other actions that can be taken at that time.  Nafe got suspended for a complaint that has not yet been made public, so we would not know that there are complaints against him (yet) if he had contacted the Commission. At that time he is to respond with his version of the events, or better yet, hired an experienced lawyer to walk with him through the process.

The suspensions finally got his attention, since on May 15, 2012 the Supreme Court terminated the Noncooperation Suspension by a published Order here for the first case, and here for the second case. Don’t get yourself in a box like this. Even lawyers need lawyers sometimes.

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Who is the Client?

When two people come to see you about a problem the first question must be, can I represent both people as clients? Lawyers like to help people — we want to solve our clients’ problems, but inadequate analysis of the potential clients’ needs can cause real trouble.  Todd Wallsmith tried to help two brothers whose father had disinherited them. After a while the brothers disagreed on case tactics, then case substance, and rather than obtain separate counsel for one of the brothers, he tried to handle both their claims, which diverged even more. The lawyer finally agreed with the other side on an issue, with one of the client’s consents, but without the other’s. As their agent, he had the power to consent, but not the authority for the one. The case blew up between the lawyer and the one client.

The lawyer and Commission agreed to a disposition of the complaint which was submitted to the Supreme Court. It found that there were four Rule violations, and as a penalty it suspended the lawyer’s license to practice law for 180 days, then withheld the full suspension in favor of 45 days suspension and 24 months of probation. A good result due to the circumstances. Also a good lesson for lawyers across the country.

Avoiding conflicts in the interests of each of your clients — when there are multiple clients — is not easy. Clients do not like to be told that you cannot take care of all of them, but sometimes you can’t. In some cases in some states multiple client representation is forbidden, in other cases it is merely a minefield.