Articles Posted in Legal Ethics

Over the years, I have thought about this a bit. My current answer to this question is to be mindful of your own emotions when dealing with clients.

If a client criticizes you unfairly or makes you angry, stop writing that letter or email and let things cool off. You have may have to write to the client to correct the record, but do not do so when you are angry. Angry lawyers do dumb things like (a) disclose a client confidence to a third party; (b) threaten to file an ARDC grievance against another lawyer; or (c) file an angry motion with a judge.

When you are angry, you are not thinking correctly. Take time and cool off. Discuss the matter with a colleague or an experienced ethics lawyer. Then it may be necessary to write back to the client and inform that person or corporation of your opinion.

Two law professors, Robert Anderson IV and Derek Muller, have published “The High Cost of Lowering the Bar,” in the Georgetown Journal of Legal Ethics. It can be found in Volume 32, page 307 of that law review.

Anderson and Muller argue, based on statistical evidence that lowering the bar passage score will mean an increase in attorney disciplinary claims. They show that students with lower bar passage scores are more likely to have public disciplinary matters. They argue that the attorney’s score on the bar exam correlates with discipline rates throughout the lawyer’s career. Lawyers with higher scores are far less likely to be disciplined. Lawyers with low scores are more likely to be disciplined.

Anderson and Muller argue against lowering the bar exam score because lower scores mean weaker quality lawyers.

Disciplinary investigations can be frustrating and time-consuming. Responding poorly to one can have serious consequences in that the punishment is often increased for those who do not acknowledge that they made an error. In Debra Cohen v. Patricia King, AC 40834 Connecticut Court of Appeals, Debra Cohen attempted to bring a defamation complaint against the disciplinary counsel who signed a disciplinary complaint against her. Ms. King moved to dismiss on the basis of the litigation privilege – which generally provides immunity for in-court statements and testimony. The trial court granted the motion to dismiss and the Court of Appeals affirmed. It noted that “statements made in a grievance proceeding were shielded by absolute immunity” and that the act of filing a grievance was also protected. This is an excellent and well-considered opinion. Witnesses have to be able to speak freely in disciplinary proceedings. Lawyers should not be able to use the threat of litigation to silence their critics or former clients.

Ed Clinton, Jr.

http://www.clintonlaw.net

The case is Bar Counsel v. Peter Farber, SJC 11171 (Massachusetts Supreme Judicial Court).  This post is a repeat from a few years ago. I regard the opinion highly and think every lawyer should read it before taking any action adverse to an unhappy client.

Farber was the subject of an attorney disciplinary complaint. The complaining party, G. Russell Damon, testified against Farber. Damon accused Farber of wrongful conduct in connection with a real estate transaction. The disciplinary proceeding resulted in a reprimand against Farber.

Farber then brought a defamation case against Damon. Damon argued that he was immune because he testified under oath in a public proceeding. Damon took no other action to publicize his testimony.

The Board of Professional Responsibility of the Tennessee Supreme Court has censured a prosecutor who obtained the conviction of three defendants in a murder case. While appeals were pending, the prosecutor wrote a book about the prosecution. Two of the Defendants filed motions for a new trial, alleging that the book demonstrated that there was exculpatory evidence that was not turned over to them before trial. The Board concluded that the lawyer violated Rule 1.8 (conflict of interest) by obtaining a personal benefit from writing the book and Rule 8.4(d) prejudice to the administration of justice.

The lawyer may have avoided some of the ethical problems had he waited ten years after the last appeal was decided.

Edward X. Clinton, Jr.

The polarization of politics in our country has caused an attorney to try to compel the Maryland Grievance Commission to investigate attorneys who represented Hillary Clinton. An attorney, Ty Clevenger, believed that three Maryland attorneys who represented Hillary Clinton had violated the Rules of Professional Conduct. He wrote to the Grievance Commission but the Commission closed the investigation because Mr. Clevenger had no personal knowledge of the alleged unethical conduct. Undeterred by that decision, Clevenger then filed a Mandamus Action in the trial court to require the Grievance Commission to investigate the attorneys.  The trial court ordered the Grievance Commission to investigate the complaint. As the court explains:

This case began when the Appellee, Ty Clevenger, submitted to the Attorney Grievance Commission of Maryland a complaint alleging professional misconduct by three Maryland-barred attorneys while they were representing former Secretary of State Hillary Clinton. The Office of Bar Counsel thereafter informed Mr. Clevenger that it would not undertake an investigation of the allegations in his complaint because he had no personal knowledge of the allegations presented and was not an aggrieved party or client…….

On December 20, 2016, Mr. Clevenger, proceeding without the assistance of a Maryland-barred attorney, filed in the Circuit Court for Anne Arundel County a Petition for Writ of Mandamus (“Petition”). He sought to have the circuit court compel Bar Counsel to conduct an investigation, arguing that then-effective Maryland Rule 19-711 required Bar Counsel to investigate every complaint that was not facially frivolous or unfounded. The Commission moved to dismiss the Petition for lack of jurisdiction, among other grounds. It asserted that the Court of Appeals retains original and complete jurisdiction over all attorney disciplinary matters.

The case is Fulton Market Retail Fish, Inc. v. Todtman, Nachamie, Spizz and Johns, 2018 NY Slip Op o1o38 (Appellate Division First Department).

Plaintiffs, who sued their lawyers for legal malpractice, were concerned that the same judge who heard the underlying case was going to hear the legal malpractice case. They waited ten months after bringing the case to move for recusal. The court explained:

Plaintiffs’ claims are undermined by the fact that, while they argue that the court made biased rulings in the underlying landlord-tenant litigation, they never moved for recusal in that lawsuit, which lasted over a decade (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1st Dept 2012]). Even after the same justice was assigned to the instant action, plaintiffs did not move for recusal until 10 months after the case commenced, and then only after the court, at oral argument on a motion to dismiss, questioned the viability of plaintiffs’ legal malpractice claim on collateral estoppel grounds.