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.

***

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.

***

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.

***

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.

***

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.

Advertisement

Crimes are Trouble

Georgia lawyer Arjun Kapoor was accused of committing acts of domestic violence. That is a bad thing. But the allegations came through a Family Crisis Center, and Kapoor decided to find out more about the allegations. He demanded the documents held by the Center. They rejected his demands, so he made misrepresentations to the local clerk to obtain a Subpoena Duces Tecum for the evidence. The Center knew what it was doing, so it ignored the subpoena and made a report.

The Georgia Supreme Court was not pleased. He was charged by the Disciplinary authorities, and tried to work matters out. Twice rejected for a “slap on the wrist” by the hearing officer, the recommendation was for a public reprimand. The Court found acts of Misrepresentation – violation of GA Rule 8.4(a)(4)(a) [differently numbered than the Indiana RPC] and imposed discipline.

***

Resigning with Pending Troubles?

Recently several lawyers have “resigned” their licenses while facing criminal charges.  One reported in IBJ on June 18, David Rees was convicted and sentenced to four years home detention, two years probation and restitution, for stealing more than $270,000 from an estate he was managing. (The story does not say what happened to the balance of the $400,000 found missing, that was under Rees’ control.)

In Jan, 2013 Rees resigned his license on what appears from the Supreme Court docket as the day disciplinary charges were filed against him.

In June 2012 Bill Conour resigned his license, a month after charges were filed against him by the Disc. Comm.

These cases come under the Admission and Discipline Rules.  A conflict appears to exist between Rule 2(L) which prohibits “withdrawing from the practice” while under accusation, and Rule 23(§17), where the provisions allow for such resignations.

Read these Admission & Discipline Rules for context:

Rule 2(l). Affidavit of Permanent Withdrawal. An attorney in good standing, who is current in payment of all applicable registration fees and other financial obligations imposed by these rules, and who is not the subject of an investigation into, or a pending proceeding involving, allegations of misconduct, who desires to relinquish permanently his or her license to practice law in the State of Indiana may do so by tendering an Affidavit of Permanent Withdrawal from the practice of law in this State to the Executive Secretary of the Indiana Supreme Court Disciplinary Commission. The Executive Secretary shall promptly verify the eligibility of the attorney to resign under this section, and if eligible, forward a certification of eligibility, together with the Affidavit of Permanent Withdrawal to the Clerk of the Indiana Supreme Court, and the Clerk shall show on the roll of attorneys that the attorney’s Indiana law license has been relinquished permanently and that the lawyer is no longer considered an attorney licensed to practice law in the State of Indiana.

and

Rule 23. Section 17. Resignations and Consents to Discipline on Admission of Misconduct

 (a) An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may resign as a member of the bar of this Court, or may consent to discipline, but only by delivering an affidavit and five copies to the Supreme Court Administration Office and providing a copy to the Commission. The affidavit shall state that the respondent desires to resign or to consent to discipline and that:

 (1) The respondent’s consent is freely and voluntarily rendered; he or she is not being subjected to coercion or duress; he or she is fully aware of the implications of submitting his or her consent;

 (2) The respondent is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for his or her discipline the nature of which shall be specifically set forth;

 (3) The respondent acknowledges that the material facts so alleged are true; and

 (4) The respondent submits his or her resignation or consent because the respondent knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, he or she could not successfully defend himself or herself.

 (b) Upon receipt of the required affidavit in support of resignation, this Court may enter an order approving the resignation. In the case of consent to discipline, the Commission and the respondent may file a brief regarding an appropriate sanction within thirty (30) days of delivery of the required affidavit. The Court shall then enter an order imposing a disciplinary sanction on consent.

(c) An order entered under (b) above shall be a matter of public record. However, the affidavit required under the provisions of (a) above shall not be publicly disclosed or made available for use in any other proceeding except upon order of this Court.

That provision in (c) causes some concern, since an affidavit confessing the violation of the rules ought to carry some weight in other matters, if admissible.

Also, a distinction (without much difference) may exist between “resignation” and “permanent withdrawal” as Rees and Conour are eligible to petition for reinstatement in 5 years, while those withdrawing must get in through the Bar Exam or under another provision.

It seems a lawyer who offers to withdraw the law license, and is without a pending problem, should have less trouble seeking reinstatement. Practically, Rees and Conour will never practice again.

***

Epidemic of Suicides in KY

Half a dozen suicides by lawyers in Kentucky has prompted increased concern.  The Indiana Law Blog excerpted a story from the Louisville Courier Journal on the issue.

All were men, most were trial lawyers, and the average age was 53.

Indiana Judges and Lawyers Assistance Program–JLAP–is available to assist lawyers troubled with their practice.

I have not seen a current table or story on Indiana lawyers, but know of too many who have used a permanent solution for a temporary problem. The 2010 Legal Education Conclave focused a session on Resiliency in the Face of Stress, for law students and the practicing bar and bench.  More still needs to be done.

***

Poll Question Result:  The Georgia Supreme Court rejected a public reprimand and suspended Kapoor for six months from the practice of law.

Pretend you are a Supreme on DI cases; Duty when depressed; Sign Here Please; Filing Taxes is Timely

As a trial, I will be sharing the facts of a few DI cases, and poll the readers how they think the Court ruled, as punishment for the violations. Later in the blog entry I disclose the Court’s actual decision. Are you tougher than a Supreme?

****
William Dittrich neglected several cases over a four-year period. The neglect included failing to do the work, refusing to respond to clients’ requests for information, not placing unearned fees in trust and failing to refund unearned fees.

He knew he had health and depression issues, but did not seek adequate treatment, and placed his interests ahead of his clients’ interests.

***
Unsigned document to file with the court, client forgot to sign her name. What do you do? There are several wrong answers: file it unsigned, ask the staff to sign for the client, or worst of all – sign the client’s name to the document. Ray Robison chose the worst of the options.

Sisters were co-personal representatives, one signed all but one document in the stack of papers. Robison signed her name to the unsigned document, then sent them to the sister for her signatures. Sister noticed that the signature was not right.

Robison cooperated, withdrew without a fight, and the court acknowledged that his purpose was to avoid inconveniencing a client. But it was a violation of Rule 8.4 on fraud, dishonesty, deceit or misrepresentation.

****
SC lawyer David Flowers failed to file tax returns for 2007-2010. An anonymous complainant reported these facts to the South Carolina Disciplinary Commission, and it got ugly. SC found he violated Rule 8.4 of the RPC, together with two other codes of lawyer conduct.

He admits he wants to give up the practice of law, and suffers from the stress of the practice. He has not yet paid the taxes due.

***

Dittrich, got 90 day suspension with automatic reinstatement. Is working with JLAP according to the Opinion.

Robison got an agreement for a public reprimand accepted by the Court.

Flowers got 90 day “definite suspension” meaning that he must file for reinstatement, and he may not file until after he pays the taxes. There must have been some interest in figuring out who the “anonymous source” was, as it made the opinion.

***
Tell me if you liked the polls in the body of the blog.

It had to happen; Blogger Beware – the hand you bite may bite back; Durham Suspended; Parenting Time Changes; Indiana Talks.

I knew it would happen

I know this lawyer, and the nice things the hearing officer reported to the Supreme Court about her are true, from my experience. But she got reprimanded. I must admit, the facts are hard to decipher from the recitation of events in the opinion, but it appears that the lawyer took on a big case, apparently too big for a single lawyer to take on in the manner she did. She created a class of 64 plaintiffs who may not have had similar interests (since some had settled their claims before becoming part of the class), and they gave her authority to settle without getting further input from the clients, which is power that a lawyer should not have. The Court says that they insisted on it, and she accepted the authority. During mediation, she had a short period of time to accept or reject an offer that seemed appropriate for all 64 clients. She exercised the authority to settle rather than to leave the offer on the table. (Thanks OC and mediator).

It is not clear who reported the matter, but it does not sound (from the opinion) that any of the clients were upset with the settlement, offended by her actions, or thought any inappropriate action had occurred, but that is not the test under Rule 8.4.  Lawyers must let the clients make the decisions to settle, as painful as that can be from time to time (Rule 1.2(a)). Aggregate settlements are tricky creatures, and must be handled with care and with the informed consent of each client (Rule 1.8(g)). When lawyers fail to get informed consent, it usually leads to the failure to explain a matter so the client can make an informed decision (Rule 1.4(b)).

Although the Disciplinary Commission lawyer argued for and sought a suspension from the practice, the public reprimand seems right.

****

Blogger Beware

The National Law Journal reported that a Chicago lawyer and blogger got caught up in a legal matter that prompted her to make allegations that the IL probate process is “a sleazy world of probate” and that there is “malpractice and malfeasance by attorneys and the court.”  Amazingly someone took offense at that.  The lawyer Joanne Denison now faces an ethics complaint.

It seems to stem from the court rejecting an application by Denison to serve as a guardian, after the court found that Denison had notarized the signature of a woman who might have been  suffering from dementia at the time of the signature, and that the document favored the woman’s daughter, a client of Denison, over others in the family.  They thought that was worthy of disqualification from serving as guardian in this matter. Denison went ballistic, created a blog in the name of the potential ward, and started blasting away at the judges and lawyers alike.  She named names and recounted allegations, apparently without due regard to the facts underlying the matters.

The ethics allegation is that the blog contains “comments that are false or made with reckless disregard for the truth.”  Oops.

I will take that into consideration as I write and edit this blog, and invite others to do likewise in their own writings.  As one reply to the NLJ article mentions, Rule 8.3(a) states: “A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or Rule 8.4(c) shall inform the appropriate professional authority.”  That is not an invitation to inform via blog.

H/T Patrick Olmstead

****

Durham Suspended

Indy Ponzi scheme convict Tim Durham, the subject of a previous post here, was suspended from the practice of law based on his finding of guilt in the $200M fraud case of Fair Finance. Durham was sentenced to 50 years, so unless he was planning a jail-house lawyer routine, this finishes his legal career. The Order is here.

The Indy Star claimed [login required] it was the Disciplinary Commission that suspended him, but we know  that the Supreme Court keeps that power to itself. Durham still has a challenge to the suspension, but…

BTW, this is Durham’s second suspension, the first was due to failure to pay his annual registration fee last October.  Kirkland & Ellis, one of the biggest of BigLaw firms in Chicago, has decided to provide a pro bono appeal for Durham, according to the Indiana Business Journal. If you cannot pay registration for your license, you probably qualify for indigent services.Good to see the poor getting adequate legal representation to protect their rights. It worked so well for Mike Tyson.

Parenting Time changes

Two lawyers in my office have produced a short video on the changes in the Indiana Parenting Time Guidelines. The changes go into effect on March 1.

You may want to watch, or link to it. Andy Perkins and Rachel Arndt did a nice job, here.

IndianaTalks.com Interview

Indy lawyer Stephen Terrell will be interviewing me this coming Tuesday, Feb. 26 at 9:00 pm on his weekly online “radio” show. Steve has been on-line for 3 weeks now, and has had some very interesting interviews.  You can listen by tuning your browser to http://www.indianatalks.com/.  Steve discusses information of the week, and then conducts his interview for much of the hour.

Don’t know what we will talk about, but Steve and I, while friends for a decade, disagree about most of the important things in life, and this will be my chance to show him the errors of his ways for you all to hear. Plans are to discuss law, politics and religion. Where could we disagree about any of these matters?

I only hope the Hoosiers have put the Gophers away by 9:00.

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.

***

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.

Zealous Representation?; Alabama joins Indiana on Group Coupon issue; Who is the client?

Zealous? Don’t Talk to me about Zealous! -1-

Wisner v. Laney is an important case on lawyer civility, but an opinion with a problem. First, the issue.  As stated in the opinion, counsel for both sides went over the line. Plaintiff’s counsel was ordered to apologize to the jury for comments about the defense counsel.

Defense counsel still thought that the opponent went too far, and the trial court should have either called a mistrial or dismissed the case. That did not happen. As stated by Justice David, “Again, the trial court judge is in the best position to determine when enough is enough and whether or not the behavior of counsel would warrant a new trial.” and “we nonetheless express our displeasure with the conduct of counsel, particularly that of plaintiff’s counsel.” Also the court found: “Although plaintiff’s counsel’s behavior was most troubling, both attorneys should have acted in a manner more becoming of our profession.”

Now the problem: in the conclusion the court says: “The duty to zealously represent our clients is not a license to be unprofessional.”  In the 2004 amendments to the Indiana Rules of Professional Conduct the Supreme Court deleted the word and standard of “zealous” representation from the Preamble, in favor of an “effective advocate” standard. The ABA Model Rules still use the term “zealous” three times in the Preamble. Section 2 of the MRPC states in part: “As advocate, a lawyer  zealously asserts the client’s position under the rules of the  adversary system.” It is also found in Sections 8 & 9 of the MRPC.  One example of the change in Indiana’s Rule 8 is: “a lawyer can be a zealous an effective advocate”.

So now the court reintroduces the issue of zealous advocacy in the most recent “civility” opinions issued by the court. Was that intentional by the court, or a lapse to the language lawyers used a decade or more ago?

1. Bad take-off on the Jim Mora Playoffs speech from 2001

***

GROUP COUPON OPINION SPREADS

Alabama State Bar’s ethics committee joined Indiana in banning lawyers from participating in daily deal coupon programs such as Groupon. An issue that has been ruled on by several states, first Indiana and now Alabama have found the deal plans contain too many “ethical landmines” to pass muster.

Indiana’s 2012 opinion was the first to take aim on the practice, calling it fraught with peril, and identifying eight Rules in the Indiana RPC, plus one guideline that were in peril with the proposal.  NY, NC and SC looked at fewer issues in approving the proposal.   The Legal Examiner in Alabama had an article that hit the highlights of that state committee’s ruling.

****

WHO IS THE CLIENT?

Ethical questions to the ISBA Hotline panel are often explored in more detail by asking the caller “Who is your client?”  A recent Minn. case discussed in the Jan. Minn. Ethics Update takes that question a step further.

In Fredrikson & Byron v. Saliterman the law firm started working with the owner and CEO of “LOS” in an arbitration matter where LOS was one of the parties. Saliterman, the contact and CEO of LOS had separate legal counsel in the arbitration. He received LOS’s engagement letter, addressed to him, and it said, among other things, “Thank you for selecting F&B to represent you in the litigation matter concerning [LOS].”

When the matter was over, and LOS was insolvent, Saliterman was billed for the legal  fees due.  The question addressed by the trial and appellate courts was “Who was F&B’s client?” The appellate court decided that ambiguity in a fee agreement goes against the law firm, so F&B did not get paid.

The lesson?  Make sure your engagement letters identify, by name, the client, such as, “In this matter the firm of XYZ is representing only [client’s name].”  If you want a guarantor for payment, get a payment guaranty from the CEO in the CEO’s personal capacity, (or parent in a child’s matter) and not as the representative of the business entity.

Fraud is trouble; Theft from Child; Research Issues; Epic Trust Fund Breach

FRAUD LEADS TO TROUBLE
Indianapolis lawyer Paul J. Page has agreed to plead guilty for his scheme to defraud a bank. Hard to tell whether this is a business deal gone bad (which even by a lawyer is not a big concern of this blog) or a bad thing done in his role as a lawyer.

More interesting is all that is written about his friend and colleague, former Indy Prosecutor Carl Brizzi.  Too early to tell if Page’s fraud leads to Brizzi trouble, but I smell smoke in the air.

*****
ELKHART LAWYER STEALS FROM CHILD’S FUND

Juan Garcia Jr., an Elkhart In. lawyer has pleaded guilty to stealing the funds of a child, whose funds from a personal injury settlement were placed in trust with Garcia by the child’s guardian. When the guardian noticed some discrepancies, she met with Garcia who tried to bribe her to remain silent. The bribe money also came from the child’s funds. The guardian took the bribe money to the police, and the charges followed.

One interesting aspect is to read the subscribers’ comments to the news story on this case from the Elkhart Truth.

****

UPDATE YOUR RESEARCH

The lesson from the Thul case out of ND IL federal court is to update your research.  Biglaw firm Skadden Arps lawyers filed Motion to Dismiss (as usual), but did not cite the recent (2012) 7th Cir. case on the basis for their motion. Trial judge went ballistic.  Their action he said “likely amounted to conduct sanctionable under FRCP 11(b)(2) and 28 USC 1927.”  The judge has set a hearing for Jan 17, but by today, Jan. 10,  all three lawyers from Skadden shall “show cause in writing … why they should not be sanctioned” in any of four ways set out in the opinion, and must “appear in person” for what sounds like a slap down by the judge.  Ouch.

Just a reminder that the best daily blog for keeping up with legal issues in Indiana is still the Indiana Law Blog, written by Marcia Oddi.  I owe her my thanks for many of the cases I can give you a bit different look at.

I check ILB regularly, and so should you.

***
BUYING TRUST ACCOUNT TROUBLES?
A trust account is a serious matter. Written about before here, it is not a personal checking account, not a place for your funds, not a line of credit for your office and not something to be taken lightly. You never want the Supreme Court to call your handling of your trust account an “ethical failure of epic proportions” as the Wisconsin court did for Joe Weigel.

The now former lawyer found out the hard way. It started with a seemingly innocent act. Weigel worked for a lawyer in Wisconsin, and eventually bought his practice (permitted under IN RPC 1.17) in 1999. While working there he “knew of a deficit in the trust account” but did not research that until after he and his new partners bought Alvin Eisenberg out.  He said he thought the problem was only $200-250 thousand. In reality, the deficit was near a million dollars. But he had bought the practice anyway.

He did not report Eisenberg to the WI Disciplinary Commission at the time that he worked there or when he bought the practice. When asked, Weigel responded, “I thought of it but just made a moral decision not to do that.”

Not the kind of “moral decisions” that lawyers should make. For 13 years Weigel juggled the books, borrowing from one client to pay another, or holding the funds due a third-party to pay someone in a different case. Finally his luck ran out, he got caught and now is out of the profession.

If you have a trust account problem, fix it immediately. This is a place where self-reporting with counsel at your side should be considered.

Stay Up on the Rules; Trust Account is for Client Funds; How Much is Take Home Anyway?

Ten New Rules
Indiana Supreme Court has amended ten of the Rules lawyers need to know effective Jan. 1, 2013.  You can review them here and realize that service of pleadings on fellow lawyers is now permissible through email, if agreed. PDF format becomes a standard, and several changes to the RPC, including Rule 5.5 on cross-state practice will go into effect.

If you don’t take the occasion to read the various rules that affect your profession, and you life as a lawyer, you have several days in the next two weeks to take that opportunity. Out of the office, often with a book in hand, you might choose to make that book (or tablet) the Rules of Court, and the link above to make sure you are reading the most current rules.

And for a kick, read the Administrative Rules (you may skip the details of Rule 7(d), 8(b), and App to Rule 1 – unless you are a judge) and the Admission and Discipline Rules, in addition to the RPC.  Finish by going back and reading Rule 22 of the A&D Rules. That is the Oath of Attorneys. You took that oath when you were admitted (you might have a copy on your wall someplace), and you would have repeated it if you attended an Indiana Bar Foundation Fellows dinner. At the dinner a Supreme Court Justice leads the crowd in a recitation of the Oath.  A good moment for all in attendance.

****

YEAR END TRUST ACCOUNT ALERT

Year end temptations get to some lawyers, the temptation to leave earned funds in the trust account a few weeks longer to move income into next year.  You may want to read the opinion: In the Matter of Jacob Dunnick.

Dunnick was trying to avoid having an IRS lien enforced, and so he started operating his office general funds and paying his office bills out of his trust account. He wrote a check to the Commission for Continuing Legal Education out the funds in his trust account, and the Commission reported him under Rule 8.3. A couple of months later Dunnick bounced a check on the trust account, and under the IOLTA Rule (1.15), that is an automatic report to the DC from the depositor bank.

For playing with his trust funds like this, Dunnick gets a real 60 day suspension (six months, stayed, 60 days served, one year probation). He will need to work with a CPA to quarterly audit and report the trust account to the DC, and he must take the Trust Fund Management class.

Prior lawyer-clients of mine have reported that the Trust Fund Management class is quite worthwhile. If you are uncertain about the means and methods of handling the trust funds or other property that you obtain from your clients, you should keep an eye out for the class. Or you might buy and read the classical treatise on the issue “The ABA Guide to Lawyer Trust Accounts” available through Amazon or the ABA (where you will be surprised to find the price is about 1/2 the Amazon price, and there is $10 off if you belong to the LPM Section).

***

Finances causing Troubles?

I ran across an interesting article on Inc.com’s website.  Maybe it fits your needs, maybe it does not, but I know many lawyers who suffer from the problem of inadequate fees, and I have spoken about the issue at the ISBA SSF Conference in years past.

“You Don’t Charge Enough. Here’s How to Fix That.” tackles a problem that affects many lawyers, we let the jokes and the reputation as sharks keep our fees too far below the value that our services provide to our clients. A worthwhile read before you set your office budget for 2013.

***

And on that note, I want to wish you the best of the holidays.  As noted Indiana lawyer Derrick Wilson said “Make sure you wish the readers a Merry Christmas, Happy Hanukkah, Kwanzaa, Festivus or holiday of their choice.”  And so I do (once again, following the sage advice of Mr. Wilson…)

Hourly Billing leads to Suspension; How Much is Too Much?: Know the Battles to Fight

Billing is one of the toughest things lawyers do.

The legal field is struggling with the proper method of billing for legal services.  There are a number of ways, mostly broken down into the following styles: Contingency, Hourly, Value Pricing and some hybrids such as menu billing or flat fee billing.

Each method has its critics, and the Indiana State Bar Association recently held a session at its Annual Meeting on “The Future of Legal Fees.”  MS lawyer and ABA bestselling author Mark Chinn was the presenter.  One fear expressed there was that Value Pricing fees could run afoul of ethics issues.

Any system of billing can run afoul of ethical issues. The primary breach is in the lawyer, not the system. “But lead me not into temptation…” Michael Murphy, a Massachusetts lawyer, learned the hard way.  He was a salary lawyer for an unnamed law firm.  On at least two cases he “knowingly spent more time than necessary” in order to increase his billables. He reviewed materials multiple times, often for hearings that had not been scheduled yet. He billed for time performing tasks that “should have been delegated” to lower cost lawyers at smaller billing rates. He billed for performing tasks that others had performed. Author John Conlon regularly writes about the problem for clients about misallocation of duties between higher priced lawyers and the lower priced associates or non-lawyer staff.

Murphy’s firm refunded the fees, and wrote off unpaid bills, but Murphy got a Year and A Day suspension.  Rumor has it that this kind of billing problem occurs with enough frequency that it should be discussed in biglaw and small firm settings, and forbidden by policy. The Mass. Court found the fees charged was a violation of Rules 1.5(a) and 8.4(c).

H/T Andy Perkins

****

106 Paragraphs in the Ethics Complaint => Suspension

Illness does not give you a “Free Pass” card.  Kjell Engebretsen, a Boone County, IN lawyer appears to have struggled for years in representing his clients.  The battles may have had to do with depression or other illnesses, but were manifested in his refusal to do the clients’ legal work, or to cooperate with the Disciplinary Commission.

The charges included: neglecting clients’ cases, failing to do the work for which he was hired, failing to communicate with clients, failing to inform clients that medical problems would severely limit his ability to represent them, failing to inform clients of court orders and hearings, failing to appear at hearings and a pretrial conference, unilaterally terminating his representation of clients without protecting the clients’ interests, failing to refund unearned fees, and failing to cooperate with the Commission.

This is the fifth action against the respondent filed by the DC, and there may have been others not filed before the 2008 matter. At the time of this Order he was on two other suspensions (failure to pay costs, and non-cooperation with a show cause order), and did not respond to the charges filed here.

The Court found violations of the following Rules of Professional Conduct:

1.3: Failure to act with reasonable diligence and promptness.

1.4(a)(3): Failure to keep a client reasonably informed about the status of a matter.

1.4(a)(4): Failure to comply promptly with a client’s reasonable requests for information.

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions.

1.16(d): Failure to protect a client’s interests upon termination of representation.

1.16(d): Failure to refund an unearned fee upon termination of representation.

3.2: Failure to expedite litigation consistent with the interests of a client.

8.1(b): Failure to respond in a timely manner to the Commission’s demands for information.

8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

For all that, the result may surprise you.  Read the opinion, and J. David’s dissent.
****

Pick your Battles Carefully, Especially When You get the Lede

Vikrant Pawar, a NYC lawyer had to file the suit. His honor apparently was tested by the allegation.  Then the slap-down hits.  As reported in the New York Law Journal [full story behind a paywall]:

“The charge of stealing a $6.95 order of chicken wings, hardly constitutes that of a serious crime,” Manhattan Supreme Court Justice Louis York wrote, holding that Vikrant Pawar had not made a sufficient case that the charge amounted to slander.

So an event that merited the attention of Pawar’s family and staff, and the owner of the Wings Shop, has now been made a record in the courts, and in the popular legal media.  Now we know he was accused of stealing chicken wings, and that the court does not find that charge to be an insult to his integrity.

Maybe the better resolution was to pay the tab, tip the waiter and stay quiet.  H/T Patrick Olmstead.

***

If you see a story worth mentioning in the blog, please share at ted@peterson-waggoner.com

New Rules for Lawyers and Judges: Living with the Rules; What is JLAP?

New Rules to Review

Six new sets of rules are going into effect for Indiana lawyers and judges on Jan. 1, 2013 based on a series of Ind. Supreme Court rulings issued in Sept.  The list of new 2013 orders (plus three effective July 1, 2012), if you have not seen them is here: http://www.in.gov/judiciary/2784.htm

It always pays to read the rules.

***

Paying for Disclosure Violation

One hard fast rule in Bankruptcy Court is for the lawyer to disclose any interest, direct or indirect, in representations in the case.  In a recent bankruptcy case in Georgia, the lawyer was required to disclose any interest in any creditor of the bankrupt client before representing the client.  In this case the lawyer forgot to disclose that he and his wife were shareholders in a creditor bank, while her father had been bank president, board member and chair of the bank’s board, and to top it off, the lawyer’s former partner was general counsel to the bank.  Oops.

The opinion, as reported by the Business Reporting Committee, does a nice job of listing the five factors to used in determining if a disclosure misstatement is to be actionable, and here it clearly was an intentional misstatement of reality.  The court cut the law firm’s fees by $20,000 which should get these folks attention. And yours.

H/T Gregory Jordan for the link.

***

What is JLAP?

One of the critical pieces of the legal system in Indiana was created in 1997, by adoption of Rule 31 of the Admission and Discipline Rules of the Supreme Court.

JLAP’s purpose “is assisting impaired members in recovery:” of all kinds.  It is designed to “provide assistance to judges, lawyers and law students who suffer from physical or mental disabilities that result from disease, chemical dependency, mental health problems or age that impair their ability to practice;…”

Terry Harrell is the extremely competent and compassionate Executive Director.  If you have questions about your situation, or the situation of a friend or colleague, you should review Rule 31 here and call JLAP for information and assistance.  The program has volunteers around the state, so you may get someone from nearby to provide assistance.

Of course the important thing is, if you or someone you know needs help, you should call. Today, or tomorrow. The impact of the call can be life saving, or might protect the rights and property of a client. Good faith calls get some qualified immunity under Section 9.  Call.  It is better than being required to report misconduct if you don’t call.