Articles Posted in Legal Ethics

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West Virginia has suspended an attorney for 30 days for failing to file a client’s amended habeas corpus petition on time. This is another case in which disciplinary authorities have prosecuted a negligence case. The attorney was found to have violated Rule 1.3 (failing to act with reasonable diligence) and Rule 1.4(a)(3) (failing to keep the client reasonably informed about the status of the matter); and Rule 8.4(d) (conduct prejudicial to the administration of justice).

The record indicated that the lawyer was appointed to represent a pro se prisoner and that the lawyer eventually obtained leave of court to file the petition after it was due.

Source: Lawyer Disciplinary Board v. Palmer, W Va: Supreme Court of Appeals 2017 – Google Scholar

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This case (which is merely a complaint now that has not been proven) is a reminder that an attorney can be prosecuted by the ARDC for failing to safeguard client funds when he personally did not convert the funds. In this case, the allegations are that the lawyer’s partner converted funds and that the lawyer failed to prevent it. There are also allegations that suggest that the lawyer had reason to know that his partner might convert funds because he had converted funds in the past. The complaint alleges violations of Rule 1.15 and Rule 5.1(a). I have attached a link to the ARDC’s complaint. Again, the important thing to remember is that you can be prosecuted even if you did not convert funds.

Edward X. Clinton, Jr.

http://www.iardc.org/17PR0053CM.html

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This is case is worth reading because it involved a law firm that did legal work for a client for a period 12 years, but never billed the client. The firm claimed that it had entered into an oral agreement with the client to defer billing until a parcel of real property was sold. When the property was sold, the lawyers delivered a legal bill for $274,850.64 to the client.

One can speculate that the client, who had not received any bills before that time, was enraged to receive a huge bill after that amount of time. She refused to pay.

The firm sued for (a) breach of contract, and (b) equitable estoppel. The client filed a motion to dismiss the breach of contract claim based on the statute of limitations and the statute of frauds. The motion to dismiss was denied.

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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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