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.

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.

PA Judge steals Drugs?; Former VA Bar President gets Disbarred; the Indiana Oath of Attorneys

Another PA Judge goes bad?

Pennsylvania has had a run of bad luck with its judges. In 2011, two judges were sentenced for taking kickbacks for sending kids to a private juvenile prison instead of to juvenile probation. Now a judge is charged with stealing cocaine from the evidence locker on drug cases that had been closed.

Judge Paul Pozonsky resigned abruptly last year, after questions were raised about his residency. Now charges are pending for the alleged theft of drugs from his evidence locker. Pozonsky had changed the local rules for evidence in drug cases, requiring that the actual drugs be brought to court in criminal cases, and placed in evidence. After a while State Police did an inventory of the evidence closet, and found drugs missing and evidence tampered with.

His lawyer calls it “a serious matter, and he [Pozonsky] is treating it as such.” Really serious.
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Former Virginia Bar President Bills Big – Disbarred

With a billing rate of $850 per hour, former Virginia Bar President Glenn Lewis still thought he needed to pad his bill. But there is the padding of a coffee break while on the client’s clock, and then there is Lewis’s padding.

According to the Washington Post, Lewis was “once one of the Washington area’s highest-paid and most-respected divorce lawyers and a former president of the Virginia Bar Association…” See the previous post on the Icarus Rule.

Suing clients over a bill is often a mistake (one PLP defense lawyer reports that 90% of client claims for malpractice against lawyers are, in fact, cross claims filed when the lawyer first sued for unpaid fees), but when the client you sue is also a lawyer, and the suit is for $500,000 more in fees on a divorce case where the client has already paid $382,000, and the case settled during pre-trial work, that should be a concern that was considered before filing the first lawsuit. Among the charges in the suit was a claim $253,000 in interest on the past due legal fees [doing the math, $253,000 interest on $632,000 in fees, more than 1/2 of which had been paid might be a usurious interest rate].

When a smart client gets sued for fees, and the client can afford a billing expert, the lawyer’s time records will get reviewed, very carefully. Lewis’s records could not stand up to a serious challenge, although he did stand by the accounting offered to the court. When the records started showing more than 30 hours a day billed by Lewis, the situation got sticky for him. He blamed “block billing” but that is no excuse, the Virginia Disciplinary Commission decided. The decision is appealable to the VA Supreme Court.

Lewis settled the civil case with the lawyer-client. He had asked for $500K from the client, but Lewis paid out $102K to the client. Then the trouble got worse for Lewis. Two more former clients sued, they claimed that they had paid, but Lewis did not do the work, and refused to refund retainers. Once things started falling in, they fell hard, these two got default judgments and then more claims came in.

Bar Discipline Commissions understand that working with clients can be tough, but taking clients’ money and doing no work, that is just not acceptable. It is hard to understand why the lawyers violate their Oath of Attorneys.

 

Oath of Attorneys

FYI – this is Indiana Admission and Discipline Rule 22.

Upon being admitted to practice law in the state of Indiana, each applicant shall take and subscribe to the following oath or affirmation:

“I do solemnly swear or affirm that: I will support the Constitution of the United States and the Constitution of the State of Indiana; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any action, proceeding, or defense which shall appear to me to be unjust, but this obligation shall not prevent me from defending a person charged with crime in any case; I will employ for the purpose of maintaining the causes confided to me, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client at every peril to myself; I will abstain from offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will not encourage either the commencement or the continuance of any action or proceeding from any motive of passion or interest; I will never reject, from any consideration personal to myself, the cause of the defenseless, the oppressed or those who cannot afford adequate legal assistance; so help me God.”

The Indiana Bar Fellows dinner will join in reciting the Oath of Attorneys this Friday at the annual Fellows Dinner, this time in Chicago.  If you are interested in becoming a Fellow of the Indiana Bar Foundation, call the IBF office.

Sex causes trouble for lawyers and (sr.) judge; Theft and Tax Evasion are problems too.

New York lawyers

In NYC a law firm partner got sued for sexually harassing a junior lawyer in the firm. That happens and is hardly news anymore. What got the NY Times to react was – he not only denied it, but he filed a counterclaim. She says he had his way, against her will, several times and places. Her claim, she quits her job due to his actions, and sues him and the firm.

He comes firing back and gets headlines. He says he turned her down and called a cab to take her home after she suggested that “if he wanted, she would not say no!” He says she was spurned, and “Hell hath no fury…” This will be interesting to watch. Embedded in the Times article is the so-called “lurid complaint” and the counterclaim.

Indiana Sr. Judge and practicing lawyer

Lisa Traylor-Wolff is from near my office, and was the judge of the then two-county  (Fulton-Pulaski) County Court before we asked the legislature to separate the courts in the 1990s.  Several years ago the Pulaski County voters chose another to serve as judge, and she has been practicing since that election – probably 8-10 years ago.  She has served as Senior Judge under the Administrative Rules, #5(B), since her return to private practice.

She was appointed the public defender of S.W. a prisoner at the Miami Correctional Center, and according to the Supreme Court’s Published Order “engaged in an improper romantic relationship” with the client S.W.  That was a violation of Rule 1.7 (a)(2) of the Rules of Professional Conduct, and as she is qualified as a Sr. Judge, the actions also violated Rules 1.2 and 3.1(C) of the Indiana Code of Judicial Conduct.

For this Traylor-Wolff gets a lifetime suspension from serving in any judicial capacity, and a one year suspension from the practice of law, with all but 45 days withheld, and two years of probation. Among the probation terms are working with JLAP; stay away from S.W. (is he the victim?); no violations of RPC; and pay costs.

Marion County Prosecutor goes after admitted and alleged bad lawyers

Terry Curry is going after bad guys, and as prosecutor that is his (and his office’s) job.  Two recent targets are Indy lawyers David Rees and Steven Geller. 

Rees is alleged to have stolen estate funds, after eight years of administration of the estate of his client there was about $400,000 unaccounted for. He also was charged with Obstruction of Justice for filing a false “final accounting” that claimed the missing money was still in the account.

According to the Prosecutor’s press release, Rees has admitted the theft of $270,549 of estate funds, agreed to plead guilty and could face up to eight years for the Class C and D felonies.

Geller was charged with the failure to file multiple Indiana tax returns, earning an Evasion of Tax charge as a Class D Felony. Expect the federal charges to follow.

What causes Trouble for Lawyers? Fee Increases w/o Following the Rules: Ranting about the Judge: Dope in Court

Changing the Flat Fee – Oops

Fees are a difficult issue for lawyers, how much to charge and how to get paid are on the lawyer’s mind in nearly every engagement.  More flat fees are being used, as objections to the scope and nature of an hourly fee basis are growing. Indiana’s rule on increasing a firm fee that is to be charged to a client is the minority rule. But it is the rule.

It appears the purpose of Indiana’s rule is to protect the client during a change in the relationship, and in theory it does just that. Changing a relationship and fee during the midst of a matter could lead to overreaching or abuse. The rule attempts to alert the client to that possibility.

The lawyer needs to know how to protect herself as well as the client, and while the fees are governed by Rule 1.5 of the Rules of Professional Conduct, the change in relationship rule is in Rule 1.8 of the RPC.

The lawyer is to tell the client, in writing: “You are advised of the desireability of seeking, and be given a reasonable opportunity to seek, the advice of independent legal counsel on the change in our legal fee transaction; and you (the client) are to give informed consent, in a writing signed by the client, to the essential terms of the transaction, and to the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”

How often a client will seek an independent opinion in a timely way is doubtful. But the file must have these two written documents.

Indiana and at least two other states consider a modification of the fee agreement to be a new business arrangement with the client, and so the Rule 1.8 business warnings are required. Prominent Indianapolis lawyer Bob Hammerle found out the hard way.

Hammerle took on defense of a criminal case for Ed Blinn Jr., and they agreed on a flat fee plus an hourly fee after five days of trial. So far, so good.  As the case went on, the outcome must have looked grim for getting paid after the case was over for the hourly part of his fee. That is for the part billed after the services were rendered, and Blinn might be jailed. The client was refusing to negotiate for a plea.  So, Hammerle orally offered to change the hourly billing portion to a flat fee, no matter how long the trial took.  He forgot to check the rule on the change in the fee. Blinn verbally agreed, paid the fee (which is considered earned when paid, as a flat fee), then changed his mind, took a plea and wanted his extra fee back.

After Blinn sued and the courts decided that case Hammerle’s way (statute of limitations was missed by Blinn, but in addition the Court of Appeals went out of its way to say that no malpractice or unjust enrichment occurred), the Supreme Court Disciplinary Commission took over. The parties agreed to a Public Reprimand, for violation of Rule 1.5(a) charging an unreasonable fee, and Rule 1.8(a) entering a business transaction with a client without giving written notice of the desirability of seeking the advice of independent counsel on the change, and securing a written consent to the essential terms of the transaction.

Lawyers — changes to your fee agreements that could be considered to favor you, the lawyer, instead of your client, will be subject to the double whammy of 1.5/1.8.  The Supreme Court said that the fee charged to Blinn was not unreasonable, if properly vetted by the Rule 1.8(a) standards. Without the 1.8 warnings, it was unreasonable (per se?).

Indiana, New York and New Hampshire have this 1.8 rule interpretation, no other reports are in the ABA Annotated Model Rules (6th Ed.).  Is this the future of Rule 1.8 around the nation, or a misstatement of what the law ought to be?  I think the later, but I give written 1.8 warnings, and get written consents  anyway. You should too.

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Calling the judge a pedophile cannot be a good thing

Outbursts at judges make you eligible for a contempt citation, and some deserve the action.  Carlos Romious apparently missed the “civility day” lessons in law school. After one session where Romious asked sitting judge Mountjoy “if the proceeding is a joke” and stating that the judge was “corrupting and stinking up the case” and “corrupting the system” Romious was told to appear to answer to Contempt of Court charges. Normally the smarter lawyer cools off, apologizes to the court and to the judge, and hopes for a fine.  Not Romious.

He appeared ready to fight.  As reported in the Wall Street Journal law blog, he worked himself up to the point where he finally asked Judge Mountjoy: “Are you a pedophile?” 

A four month sentence is a pretty long time to spend in jail for a lawyer trying to keep an office open. I think it would crimp the style, and cause some clients grave concern. But here it sounds about right.  When in the heat of battle, a suggestion: Do not accuse the judge of anything, much less being a pedophile.

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Dope Should Remain in the Pocket

More than one type of dope showed up in Court in New Orleans.  The assistant city attorney for New Orleans had a bit  of dope in his pocket when he appeared in court. That was a dopey thing to do, and he was the dope when a joint of marijuana fell on the floor in front of the two police officers he was chatting with, and who arrested him there.  Not a serious crime, but Jason Cantrell lost his job and was publicly criticized by his wife, a candidate for city council. Lawyers, don’t be a dope.