Articles Posted in Legal Ethics

In a story that is sadly all too familiar, the Oregon Supreme Court has issued an opinion and public reprimand of Brian Conry, an immigration lawyer who had the temerity to respond to three negative reviews posted online by a former client. In re Conry (OSB 18-104) (SC S067502). Conry represented a client who was seeking a stay of deportation proceedings. At some point the client engaged a new attorney who obtained the relief that the client was seeking. I will quote one of the reviews and responses:

“Horrible experience with [Respondent]. He lost my case. The government has ordered me deported. I fired him. Went to Gonzales Gonzales Gonzales Immigration law firm. They helped me to appeale [sic] my case and we won in about in about 3 month! [sic]. I found out that in my case I was not even deportable. But [Respondent] never told me that. He took over $20,000 in 5 years of fighting this case and lost it. STRONGLY RECOMMEND NOT TO HIRE THIS GUY.!!!”

The response:

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.