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

What is the cost for fixing tickets?

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

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

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Was Wyser’s Punishment the Right Result?

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

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

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

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

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

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

That is the troubling trend.

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Another Round for Conour?

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

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

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

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

More to come.

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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…

Legal Websites with Comments – Strike Back at Critical Client? What are these Sites? Fake a Review?

Social Media is a Tool, You are a Lawyer, Don’t be the Fool

So a lawyer in the Chicago area Betty Tsamis, is active with AVVO, a lawyer rating site.  Her AVVO page is here. She has a 6.2 rating, pretty good.  Tsamis handled a case for a client, Rinehart and appealed his denial of Unemployment Benefits case against American Airlines, and the case did not go well, which happens.  Whose fault?  It depends on who you believe.  Client wrote an unfavorable review and said that he paid her fee, which she took “knowing full well” he would lose the case.

The trouble for the lawyer came about when Tsamis replied with facts and information that she got during the confidential client communications. The details are here. She stated in the reply to his review that he had beaten up a woman co-worker, and not advised her of that before she filed the appeal. (If you beat up co-workers, you usually do not get UE coverage).  The IL disciplinary office has filed charges for breaching Rule 1.6 of the RPC.  Tsamis still posts replies to critical comments, but they are now toned down.

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The Ratings Game – Martindale Hubbell to AVVO to Super Lawyer to Yelp, and beyond.

Lawyer ratings were once the sacred province of now absorbed publisher Martindale-Hubbell. Today there are several lawyer and law firm ratings sites,  Avvo (above) offers ratings on lawyers and other professionals. [full disclosure, my AVVO rating linked here]  AVVO seems the most aggressive of the new generation.  MH did the same kind of ratings, but in the old days, the rating was bound in a series of books taking up 5-6 feet of library shelf space and costing hundreds of dollars and updated yearly, but MH is now is found online at http://www.martindale.com {my martindale.com rating is here].  AVVO allows client comments, as does Martindale. Both sites focus on lawyers and other professionals.

Another new entrant in the legal and medical fields does it differently. SuperLawyers.com names what it calls the “super lawyers” in most of the states. It works with magazine publishers and sends out ad-filled supplements annually on lawyers nominated and selected as the best.  [full disclosure – I am told I have been nominated, but I have not been selected as a super lawyer (or as a colleague calls them “the superest duperest lawyers”) in Indiana]. There are several ethics opinions on the propriety of advertising the designation. Most states seem to have lost interest in prosecuting this issue, even though there are regulations on lawyer advertising.

Yelp offers webpages for most businesses in the country, in an online “yellow page” style that gives the business name, address, phone number, and then lets customers comment on every business in town, from spas to restaurants and lawyers. The business owner can claim the page and edit the information about the business.

Breach of Yelp’s Policy

San Francisco lawyer Julian McMillan stands accused of taking the review matter just a step further, by allegedly having his staff create and post favorable reviews.  Favorable reviews are hard to come by, and may have a positive economic benefit to the lawyer praised. As Ms. Tsamis can attest, unfavorable reviews may have more impact.

So Yelp claims that it monitors and prosecutes businesses and now lawyers who abuse the comments policy. It should be noted that McMillan responds that he had sued Yelp and won in the trial court on an advertising contract dispute.  He suggests this is payback by Yelp.

We will see how this comes out over the next few months.

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Ernie the Attorney’s take on these matters!

The leading blogger in the legal field, Ernie the Attorney and I were discussing the “dangerous tool” of social media last week.  I do not agree with ethics guru Stephen Gillers, that all lawyers should avoid social media, and who Ernie takes apart in this post (else I would not be posting here).

Any tool can be dangerous.  Lawyers get trained  to look out for danger in every area of life. I advocate removing dangerous tools from idiots and infants, who are found in lots of places.

I hope there are few idiots and no infants among the lawyers who are posting on any of the social media sites. But still be careful out there, and learn how to run spell checker on the site.

Thinking about Staying Out of Trouble? Do it Every Day.

Sometimes in addition to looking a proverbial car wrecks, we need to examine our cars. Are the tires safe? Do the blinkers work?

Today we look at our practices from a new perspective. I offer you a couple of short articles that we lawyers might want to consider to help inoculate ourselves from the mistakes that can occur.

A speech transcript from Eric Cooperstein, a member and new president of the Hennepin County (Minneapolis MN) Bar Association, on the road to trouble for lawyers, and a way to change that road’s path — the tie between ethics and the Bar Association.

It seems to be the road less travelled these days, but one you may want to look at, as Indiana’s Annual Bar Meeting is coming up Oct. 16-18 at French Lick.

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Cutting corners, finding excuses, bending the rules, padding the time-sheet.  It seems to happen all the time.  When we talk about performance enhancing drugs in athletes, or adjusting the grading curve among educational reformers, we see the impact.  Closer to home, the impact is tougher to see.

Finding the holes in the tax code, or the criminal code, that give a second chance to our clients is the essence of the practice for many lawyers.  Looking for exits from the tenor of ethics found in the Rules of Professional Conduct cannot be our essence as we seek to make daily decisions.

Why do we cheat? is a column by business builder, writer and author Harvey Mackay.  It is worth a moment to use it to reflect in the mirror.  Am I one of the “we” in his question?  Will I be a “we” the rest of today?  Tomorrow? Is it time to check our proverbial tires, and blinkers?

Attend your next local or state bar meeting. Rejoin the community of lawyers.  See you in French Lick.

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

Trust Advice; Old Joke – Who goes to jail at the end of the day?; Cameras – get you canned – NSFW

Trust Advice: Have good witnesses

Out of state cases this week.  A prominent NY lawyer got a reprimand when his trust account checks bounced. Usually a more serious matter, the highly regarded lawyer got reprimanded instead of suspended. He pled ignorance, and stupidity. The NY Appellate Div. found the abuse was “non-venal” and the result of the aforementioned ignorance and stupidity.  Neal H. Rosenberg  was lucky enough to have great witnesses:

A former Associate Justice of the Appellate Division, Second Department, and a Justice of the Supreme Court, both testified that they had retained respondent to represent them and their respective children. Both Justices stated that respondent is known to be trustworthy, honest and a tremendously fine attorney, possessing great skill, integrity, and character. 

Have good friends, do non-venal things, and do no harm to clients, you might avoid the more serious punishment that others get.

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Bribing a Witness?

I repeat an old joke I first heard in law school, from the late Pat Baude: “At the end of the day, a lawyer’s first duty is to make sure that only the client goes to jail.”

Cranston Rhode Island’s Gerard Donley, a well-known criminal defense lawyer based out of Providence, today was found guilty of obstruction of justice, bribery and conspiracy to bribe a witness…

reports the Cranston Patch.  It promptly resulted in an Interim Suspension of Donley’s license to practice law.

The conviction was June 13, the Order of Suspension came out Aug. 6.

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NSFW – Lawyer gets himself canned

In case you live in a virtual cave, you may not know that the initials NSFW means Not Safe For Work, a euphemism for there might be something in this link that your office spam blocker will reject, or your staff will be surprised to hear coming from your computer.  It also is probably not safe for nearby children.

Lawyers are often called on to sit through boring, even mundane public hearings.  If you represent a board that holds public meetings, there is a certain “professional look” you adopt.  Something between interested and bored, engaged but not transcribing the comments.

Here Long Island NY lawyer Chris Kirby offers the wrong look.  He smirks.  And when called out about it during the meeting, it gets worse. The hearing appears to on be a cable channel broadcast.  But the cell phone camera goes on in the parking lot.  If inappropriate language offends, I suggest you ignore the link.

By the way, the lawyer and his firm lose the client school board.

h/t Gary Welsh and Advance Indiana blog.