Articles Posted in Legal Ethics

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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:

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The ARDC has filed a complaint against Rhonda Crawford who was employed as a law clerk by the Circuit Court of Cook County. Ms. Crawford is currently running for judge as well. The ARDC alleges that Ms. Crawford wore a judge’s robe and presided over three matters. The allegations are these:

4. On August 11, 2016, Judge Valarie Turner (“Judge Turner”) was assigned to Courtroom 098 in Markham (“Courtroom 098”) for court calls scheduled to begin at 9:00 a.m., 10:30 a.m., and 1:00 p.m. On August 11, each of the three court calls involved traffic tickets that had been issued in the Village of Dolton. The Village of Dolton prosecutor working in Courtroom 098 that day was Luciano Panici, Jr. (“Panici, Jr.”).

5. On August 11, 2016, at approximately 9:00 a.m., Respondent was seated in the witness box to the left of the judge’s bench in Courtroom 098. Shortly thereafter, Judge Turner entered Courtroom 098 wearing her judicial robe, took the bench, and began the 9:00 a.m. call. Respondent remained seated in the witness box throughout the 9:00 a.m. and 10:30 a.m. calls, between which there was no recess.

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I have written before about Avvo and how frustrating it can be to be reviewed on Avvo. Often the reviews are baseless angry rants. Indeed, one of the reviews on my own Avvo profile is by a person who never engaged me (and I believe never spoke to me). My advice to lawyers who received a negative Avvo review is this: “Suck it up and deal with it.” The reason for my advice is that the lawyer is bound to hold client confidences confidential and therefore cannot really respond to an Avvo review. If you reveal a confidence, you can expect a disciplinary complaint.

It turns out that my advice was probably correct.

The case is captioned John Vyrdolyak v. Avvo, Inc., 16 C 2833. Judge Robert Gettleman has dismissed Vyrdolyak’s complaint alleging that Avvo was wrongfully “using plaintiff’s identity for commercial purposes without plaintiff’s consent” in violation of the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/1 et seq. Vyrdolyak also objected that Avvo would place ads on his profile page and profit from them. Vyrdolyak compared his situation to that of  former Bulls star, Michael Jordan, who successfully stated a claim that Jewel was seeking to profit from his name. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014).

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This post does not discuss a legal malpractice issue but an issue of appropriate judicial conduct. Professor Alschuler represented former Governor George Ryan in several of his post-conviction appeals. He is an Emeritus Professor of the University of Chicago Law School and a distinguished scholar in the criminal justice field.

Professor Alschuler has written a memoir of his efforts to obtain post-conviction relief for George Ryan. Professor Alschuler argues that Judge Easterbrook has a pattern of abusing lawyers at oral argument and that Judge Easterbrook has a pattern of making up facts without consulting the record on appeal. He argues that many lawyers have been afraid to challenge Judge Easterbrook.

The article is a fascinating read and every practicing lawyer should read it before forming an opinion as to its merits.

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John J. Otrompke intends to seek admission to the practice of law in the State of Indiana. He filed suit against the Bradley Skolnick and the Indiana State Board of Law Examiners apparently accusing them of violating his first amendment rights. Otrompke was concerned that, if he were to apply for admission in Indiana, he would be rejected because of his strong advocacy for certain political beliefs. The Seventh Circuit explains:

Section 3 of Rule 12 of the Indiana Rules for the Admission to the Bar and the Discipline of Attorneys states: “No person who advocates the overthrow of the government of the United States or this state by force, violence or other unconstitutional or illegal means, shall be certified to the Supreme Court of Indiana for admission to the bar of the court and a license to the practice of law.” The plaintiff intends to engage in “revolutionary advocacy,” as by distributing theCharter of Carnaro (Gabrielle d’Annunzio’s constitution, combining proto-fascist, anarchist, and democratic ideas, for his short-lived rule over Fiume in 1920), and Marx and Engels’ Communist Manifesto, and he is concerned, he says, that his actions will be deemed to violate Rule 12(3).

Unfortunately, because Mr. Otrompke has never actually applied to be admitted to the practice of law in the State of Indiana, his lawsuit was dismissed as premature. In other words, because Mr. Otrompke has not sought admission, he cannot claim that admission was denied him because of his political beliefs.

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This is an important issue in legal malpractice cases. A lawyer represents a client in litigation. If the lawyer is granted leave to withdraw from that matter by the court, does that decision bar a legal malpractice claim by the client? The Washington Court of Appeals held that the withdrawal, even where approved by a court, does not collaterally estop a legal malpractice claim.

Generally, a litigant must establish four things to collaterally estop the other party from litigating an issue: (1) the identical issue was decided, (2) there was a final judgment on the merits, (3) the party against whom the doctrine is asserted must have been a party to the earlier proceeding, and (4) application of collateral estoppel will not work an injustice against the estopped party.

The court explained that two of the four factors required to establish collateral estoppel were not present:

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This case, Sanford v. Maid-Rite Corporation, 15-2424, is significant because it allowed lawyers to appeal a decision to deny their motion to withdraw. Even better it reversed the decision of the district court.

The case was a class action filed by current and former franchisees against Maid-Rite. The plaintiff alleged that Maid-Rite made false representations regarding the company’s profitability that induced them into purchasing franchises. In September 2014, Maid-Rite and the other defendants retained Larkin, Hoffman, Daly & Lindgren (“Larkin”) as counsel. The parties signed an engagement letter under which Larkin would bill the defendants on an hourly basis. Larkin “reserved the right to withdraw from this representation for good cause.” Good cause included the failure to make timely payment and the failure to follow Larkin’s advice on a “material matter.”

The defendants paid one invoice and did not pay any remaining invoices. On January 28, 2015, Larkin moved to withdraw. The magistrate denied the motion and the district court affirmed that decision. Larkin then filed an interlocutory appeal to the 8th Circuit, which reversed the decision on the grounds that it was an abuse of discretion.

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This case is captioned 2015 CO 61, Concerning the Application for Water Rights of the Town of Minturn: J. Tucker, Trustee v. Town of Minturn.

The Colorado Supreme Court held that a non-attorney trustee of a trust may not proceed pro se before the water court. The court reasoned that Tucker, a non-attorney, was acting not on his own behalf but was representing the rights of other people. Other courts have reached the same result. A trustee is a fiduciary who acts on behalf of others. He cannot act pro se for others. Instead, the trustee needs to retain a lawyer to represent the trust.

The ruling is consistent with long-standing practice and ethics rules. The trustee cannot proceed pro se because he is not licensed and may lack the training and experience to obtain the best result for his clients, the trust and its beneficiaries.

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This case is captioned Bode & Grenier, LLC v. Carroll L. Knight.

Carroll Knight retained the law firm, Bode & Grenier, LLC, to assist it with litigation and regulatory matters arising out of an oil spill of 100,000 gallons of oil on Carroll Knight’s property in Toledo, Ohio. The lawyers agreed to represent Carroll Knight on an hourly fee basis. After two years of litigation, Carroll Knight fell behind on its legal bills and entered into an agreement with the law firm. The agreement contained three components: (a) a retention letter; (b) a Promissory Note obligating Carroll Knight to pay $300,00o in past due legal fees; and (c) a Confession of Judgment.

On May 2, 2008, the firm filed an obtained a Confession of Judgment in the amount of $302,500.

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Source: PARALLEL NETWORKS, LLC v. JENNER & BLOCK LLP, Tex: Court of Appeals, 5th Dist. 2015 – Google Scholar

This is a decision affirming an arbitrator’s award of legal fees to Jenner & Block. The case is a typical attorney-client fee dispute, but here the Court enforced the parties’ arbitration clause.

The fee dispute arose out of patent litigation handled by Jenner & Block for Parallel Networks. Jenner & Block ultimately withdrew from the litigation after locating successor counsel for Parallel Networks. Jenner & Block cited the client’s failure to pay invoices on a timely basis and its lack of economic resources to continue the litigation.

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