Articles Posted in Legal Ethics

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http://www.iardc.org/HB_RB_Disp_Html.asp?id=12328

The ARDC has recently filed several elder abuse cases. This is one of those cases. According to the Review Board, the facts were as follows:

Respondent graduated from law school in 1989. He has a solo practice at Milwaukee and Devon in Chicago. He handles mostly residential real estate work and most of his clients are Polish. Respondent’s first language is Polish.

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The ARDC has filed a complaint against Dmitry Feofanov, 2017 PR 00009, for allegedly failing to disclose the death of a client in a lawsuit with a car dealer. Under Illinois law, once the client dies, the attorney-client relationship ceases to exist. The lawyer needs the authorization of the executor or administrator of the estate to proceed.

Obviously, this is a complaint and the allegations have not been proven or heard by trier of fact. The case is worth reading because it illustrates ARDC enforcement priorities.

Edward X. Clinton, Jr.

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This disciplinary proceeding stemmed from allegedly false statements contained in a campaign-issued flyer disseminated while Stephen O. Callaghan, Judge-Elect of the 28th Judicial Circuit was a candidate for Judge of the 28th Judicial Circuit. The West Virginia Judicial Hearing Board recommended that Judge-Elect Callaghan be disciplined for three violations of the West Virginia Code of Judicial Conduct and one violation of the West Virginia Rules of Professional Conduct. The Supreme Court adopted the Board’s recommended discipline, with modification, and found that it was appropriate to suspend Judge-Elect Callaghan from the judicial bench for a total of two years without pay, along with the recommended fine of $15,000, and reprimand as an attorney, holding (1) there was clear and convincing evidence of improper conduct presented in support of each of the violations found by the Board; and (2) Judge-Elect Callaghan’s constitutional arguments were unavailing.

Source: In re Hon. Stephen O. Judge-Elect Callaghan :: 2017 :: Supreme Court of Appeals of West Virginia Decisions :: West Virginia Case Law :: West Virginia Law :: U.S. Law :: Justia

This is one of an increasing number of cases where a judicial candidate is disciplined for making false statements about an opponent. Here the allegedly false statements worked and the candidate won the election. What triggered the ire of the West Virginia Courts was the particular nature of the statements. The materials juxtaposed statements about President Obama and lost coal jobs with a misleading allegation that the incumbent had attended a legal seminar in Washington D.C. The West Virginia Supreme Court describes the “survey” in this fashion:

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The Illinois Supreme Court has established a new rule that requires attorneys who do not have insurance to undertake an interactive test. The test is designed to make the lawyer more prepared to deal with ethics and risk management issues. The lawyer will earn 4 hours of MCLE credit. Furthermore, the ARDC cannot use the results of the self-assessment in any proceeding.

Source: Illinois Supreme Court adopts ‘proactive management-based regulation’ | Illinois Lawyer Now

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A Chicago attorney known for representing Christian conservative causes has been suspended from practicing in federal court for a year after he admitted making lewd and misogynistic comments to a rival lawyer, including sending an email that twisted her name to spell a vulgar term for a female body part.

Source: Lawyer suspended from federal court for lewd, misogynistic comments – Chicago Tribune

If these allegations are true, and Judge Castillo did find that the allegations were true, this lawyer can expect further discipline from the ARDC. In my opinion, Judge Castillo is correct to recommend that the attorney obtain professional help.

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Goldstein was retained as a mediator by Barrett and his then wife. After meeting with the couple, Goldstein drafted a post-nuptial agreement that Barrett and his wife later signed. (A post-nuptial agreement is one that a married couple enters into while a prenuptial agreement is entered into before the marriage). When wife filed for divorce, Barrett sued Goldstein alleging legal malpractice.

Goldstein’s defense was that there was no attorney-client relationship between her and Barrett because Barrett and his then-wife were each represented by counsel. Therefore the act of drafting a post-nuptial agreement did not give rise to a lawyer-client relationship. The court agreed with Goldstein and dismissed the legal malpractice claim. The court explained why it found that there was no attorney-client relationship between Goldstein and Barrett:

Here, plaintiff’s complaint attempts to characterize Goldstein’s role as an attorney-client relationship with plaintiff, but plaintiff failed to allege any facts to substantiate this claim.

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This is not a legal malpractice case, but it is worth considering. The Fifth Circuit affirmed a $1000 sanction against two lawyers for the defendant who failed to disclose three audio recordings to the plaintiff. The lawyers were sanctioned because they certified that their initial Rule 26 disclosures were complete.

The case arose out of an alleged sexual assault at a private prison. The plaintiff sued and alleged that she had been assaulted by a prison employee. The lawyers representing the defendants obtained three audio tapes of recorded phone calls from the plaintiff to family members. The recordings could be construed to cast doubt on the plaintiff’s version of events.

At her deposition the lawyers for the defendants played the tapes and questioned plaintiff about them. Plaintiff then filed a motion for Rule 37 sanctions against the lawyers for failing to disclose the audio tapes. The district court sanctioned each lawyer $1000.

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There appears to be near 100% enforcement for lawyers who wrongfully notarize or witness documents that where the lawyer did not personally witness the signature. This case illustrates that trend. It also shows that the ARDC Hearing Board can be merciful where the error did not cause harm to anyone.

Count I – Failing to Consult with the client in violation of Rule 1.4(a)(2).

The ARDC Hearing Board voted to censure an attorney for a series of deceptive actions regarding estate planning documents. The lawyer originally met with a William Theobald in December 2013 concerning his estate plan. The lawyer agreed to prepare the estate plan, but, apparently little or nothing was done for some time.

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This case and the opinions it has spawned proves that truth is stranger than fiction. The most recent opinion details the results of two trials and two appeals. The Appellate Court twice reversed trial court judgments that were incredibly lawyer friendly, that allowed the estate of a lawyer to retain funds that never belonged to the lawyer.

In 2006, Catherine Gombach deposited $504,889.29 in the trust account of her lawyer. Gombach was apparently attempting to protect some of her funds from creditor claims.

In 2010, Laurie began spending Gombach’s money and made improper withdrawals from the trust account. Gombach sued Laurie, who passed apparently passed away while the case was pending.

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Sometimes, for reasons that are obscure, the ARDC takes a set of facts that appear to prove negligence and makes a disciplinary complaint out of them. In the case of Barbara Ann Susman, the ARDC charged an immigration lawyer with: (a) failing to act with reasonable diligence, failing to promptly inform the client of an adverse decision, failing to keep the client reasonably informed, making a false statement to the ARDC, conduct involving dishonesty, failing to respond to the ARDC’s demands for information and engaging in conduct prejudicial to the administration of justice.

The facts demonstrated that Susman was hired by David Yonan to file an appeal in an immigration matter. On September 1, 2010, the Immigration Service denied his petition for permanent residence based on his status as an alien of extraordinary ability. Yonan had until October 4, 2010, to appeal. Yonan met with Susman but did not promptly pay the retainer she requested. On Saturday, October 2, 2010, Yonan made a deposit of the amount of the filing fee. Susman then took the appeal to Federal Express and believed that Federal Express would deliver the appellate papers by Monday, October 4. Some months later, the USCIS rejected the appeal on the ground that the notice of appeal was not received until October 5, 2010. Yonan declined to appeal that decision. Later, he retained another lawyer and moved to reopen his appeal.

The Panel ruled that the ARDC failed to prove a lack of diligence because Yonan did not pay the filing fee until the last minute. The Panel noted that the evidence showed that Susman acted with diligence: