Good Use of Probation; So bad, so bad; Reciprocal Discipline imposed

Using Probation in Disciplinary Proceedings

Drugs and alcohol are problems for lawyers.  The evidence is clear that many problems come from addictions. The Indiana Supreme Court and Disciplinary Commission recognizes that reality with greater frequency.  Take Marla Muse’s case as an example. The facts are sketchy in the opinion, but they start with a plea of Guilty to Possession of Marijuana as a Class D Felony.

RPC Rule 8.4(b) states that “It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s … fitness…”  Ms. Muse agreed that she violated that standard.  The court’s sanction is as follows:

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning February 15, 2013, with 30 days actively served and the remainder stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:(1) Respondent shall maintain complete abstinence from mind-altering drugs during her probation.(2) Respondent shall have no violations of the criminal law of this state or the Rules of Professional Conduct during her probation.(3) If Respondent violates her probation or the JLAP monitoring agreement, the Commission will petition to revoke her probation and request the balance of the stayed suspension be actively served without automatic reinstatement, and Respondent may be reinstated only through the procedures of Admission and Discipline Rule 23(4) and (18).

It seems that a period of probation, working with JLAP in a well monitored probation program will do more to protect the clients of Ms. Muse than any longer suspension and return to the profession without requiring some assistance.  *

***

How bad can one lawyer get?
Amy McTeer had it bad for the guy. Amy was a criminal defense lawyer, who forgot that you want to be sure at the end of the case it is the client who goes to jail. She worked hard, and got him out of jail, the illegal way – she helped him escape. To compound matters she posted photos on Facebook of her out with the escapee. She was arrested in 2011 for these matters, and the Oklahoma Supremes finally accepted her resignation of her license.

The whole sordid story, drugs and troubles can be found here.

***

Reciprocal Discipline

Did you realize that if you get busted in one state for ethical violations, it can carry over to other states where you are licensed?

Mark J. Hughes, a now former member of the Indiana Bar was disbarred in Arizona. The State Bar of Arizona reported:

In the matter of Mark J. A. Hughes, the Presiding Disciplinary Judge accepted a consent agreement between Hughes and the State Bar and ordered him disbarred.

In three cases, the State Bar charged that Hughes revealed information relating to the representation of a client without informed consent, engaged in conflicts of interest and failed to take steps to protect his client’s interests upon termination of representation. The State Bar also alleged that Hughes failed to maintain confidences and preserve the secrets of his client, engaged in unprofessional conduct, and made disparaging, offensive, and provocative comments and accusations about his client and client’s family members in their presence. Finally, the State Bar charged that Hughes engaged in the unauthorized practice of law while suspended. Hughes agreed not to contest any of the charges.

As a result of the consent agreement, the Presiding Disciplinary Judge issued an order on May 1, 2012, declaring Mark J. A. Hughes’ disbarment. Hughes must pay $1,202 for all costs and expenses associated with the State Bar of Arizona’s investigation.

The Indiana Supreme Court sent Hughes a Rule to Show Cause why similar treatment should not occur here in Indiana. The standard under the A&D Rule 23(28)(c) is that similar treatment should occur here. No reply as to why it should not.

* The author is a JLAP volunteer.

Advertisement

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…)

Stay Current (redux):Taking one for the Team: Taking one from Court Staff

Stay Current (redux)

Several weeks ago I posted about the lawyer’s duty to Comply with the Rules,  all about keeping up on your payment of registration fees and attending mandatory CLE.  I should have posted it for Marion County (now) resident Susan Kriesel in 2008.

In 2008 Kriesel, a licensed attorney since 2002, was suspended for both issues, non-payment of dues and failure to comply with MCLE.  But so what?  She continued to practice, in a firm, for another three + years. Finally caught, she was charged and the Supreme Court Order accepted an agreed discipline she worked out with the Commission.

As punishment she got an indefinite suspension from the practice of law and a $250 fine, plus costs. The court questioned if the agreed punishment was sufficient, and after discussion of the serious consequences to Ms. Kriesel, decided it was sufficient 5-0. It is unlikely Ms. Kriesel will practice again.

In Georgia, a lawyer who was disbarred went on to impersonate another lawyer, and got a year in prison for Identity Theft. Different in some respects, but similar in several ways.

What role did the supervising attorney have in Ms. Kriesel’s case? Nothing appears on the Clerk’s docket at this time to suggest any disciplinary actions are pending.  Rule 5.1(a) seems to suggest that certain duties exist for the managing partner, and are implicated over this issue.

Also, no requirement of the refund of fees paid by clients, or of wages Kriesel earned during the three years is in the court’s Order, and no discussion of the Unauthorized Practice of Law issue that seems to be a part of the case. A discussion about UPL would have been a real help to the Indiana Bar.

Taking one for the team

It is tough enough being a public defender.  The client Lamarcus Williamson pleaded guilty to a “series of crimes” and when the judge throws the book at him, Williamson throws a sucker punch at his lawyer.  And the punched lawyer, Dan Hall, was covering the hearing for Williamson’s real PD, who had a conflict.

So you do a fellow lawyer a favor and get a bloody lip in the process.  Thanks Dan for taking one for the team.

***

Now the Team takes one from the Court Staff

Beginning in 1991 a member of the court staff in Atlanta GA decided to set a misdemeanor criminal file aside, and not set it for follow-up or trial.  Twenty years later the stack grew to some 2000 misdemeanor cases.  Amazingly nobody (defendant, defense lawyer or prosecutor) noticed or complained that their case had not been resolved.

Most of the files were from 2008-2010, but some were considerably older. Not much the court could do but start setting things for hearing, and to allow prosecutors to dismiss.

Good for a court to have a clean out of the file closets and old file cabinets at least every quarter-century. When was the last time you cleaned out your file drawers?