Articles Posted in Legal Ethics

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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.

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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.

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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.

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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.

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In this matter, a typical drug prosecution, the record reflected that county prosecutors supported the reelection campaign of a judge. Did that support create an obligation, on the part of the judge, to recuse himself from cases in which those lawyers appeared?

The trial court and the Indiana Court of Appeals held that there was no duty to recuse.

The lawyer for the defendant argued that the prosecutor’s support for the judge’s reelection campaign created an appearance of impropriety. The Indiana Court of Appeals disagreed. The court distinguished a prior case in which it had held that a judge was required to recuse himself because of an unusually close relationship to one of the lawyers.

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Disclaimer: This is a charge and it has not been proven. These are mere allegations by the ARDC.

The case is worth reading because it is relatively rare for the ARDC to allege that a lawyer wrongfully accessed an email account. The underlying case involved a former employee. The lawyer was employed as the CFO of the former employer. According to the allegations, the lawyer used a work email address of the former employee to reset the password on the employee’s personal email account. The lawyer then read the personal emails and used them in the litigation. The allegations of wrongdoing are as follows:

21 t all times alleged in this complaint, there was in full force and effect Chapter 720, Section 5/17-51 of the Illinois Compiled Statutes, which provided, in part:

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This case is newsworthy.The 11th Circuit affirmed a contempt finding against a lawyer who allegedly wrongfully procured evidence from the defendant. The Court set forth the facts as follows:

Attorney Sandra Finch represented Elane Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclude or strike the deposition testimony of Allstate’s fact witness Mark Gould. Allstate filed a response in opposition that, among other things, described what happened during Gould’s deposition, which it supported by citing the deposition transcript and Gould’s affidavit. The transcript showed that during the deposition Finch handed Gould page-by-page photographs of a document titled “Steamatic Guide to Restoration Services” (an outdated company document) and that when Gould asked Finch where she had found that document, Finch refused to answer. Gould in his affidavit stated that he “got very upset when it became apparent [that Finch] had obtained the document from my office without my permission.”

The photographs of the Steamatic Guide were not the only photographs Finchshowed Gould during his deposition. At one point she handed Gould a photograph of the inside of his office, but refused to explain where she had gotten the picture. Gould accused Finch of trespassing, at which point Finch responded, “I caution you on defaming me, because if you defame me, I can promise you it will not be good.”

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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.