Articles Posted in Legal Ethics

BEFORE THE HEARING BOARD.

The ARDC has asserted a problematic claim against a lawyer who split a fee with another lawyer who did some of the work on the matter. I believe that the claim represents a misreading of the text of Rule 1.5(e).

First, I will quote the complaint:

BEFORE THE HEARING BOARD.

The ARDC has filed a complaint against two lawyers of a Chicago law firm and has alleged that they engaged in the unauthorized practice of law in New Mexico, Georgia and North Carolina. This is an unusual complaint. Usually, the ARDC brings cases for the unauthorized practice of law against those who were not licensed in Illinois and who attempted to practice law in Illinois. The two lawyers accused in the complaint are licensed in Illinois and are in good standing with the Illinois. The ARDC has claimed that they wrongfully practiced in other states and failed to promptly refund fees for those matters. The underlying matters involved real estate foreclosures in other states.

This case is a reminder to everyone that Illinois lawyers are not licensed to practice law in other states.

The case is North Carolina State Bar v. Paul T. Jackson, 14 DHC 20.

The case is part of a growing trend to bring disciplinary charges against prosecutors who fail to disclose exculpatory evidence.

The important facts, as set forth in the complaint, are alleged to be as follows:

BEFORE THE HEARING BOARD.

This is a rare case where a prosecutor is being accused of wrongdoing for failing to disclose that a witness changed his story and for allegedly misleading the court about the witness’ testimony.

What is odd about the case is that the ARDC chose this prosecutorial misconduct case to prosecute. This appears to be the first such case brought by the ARDC.

BEFORE THE HEARING BOARD.

I have a strong opinion on this case – this is a dreadful act of overreaching by the ARDC. Ms. Naughton and a friend were accused of disorderly conduct after a Cubs game in 2012. In 2013, she was tried and acquitted of all charges.

Now, in an atrocious abuse of prosecutorial discretion, the ARDC has filed charges alleging the same facts as were alleged in the criminal case.

Mandatory Sentencing for Medical Marijuana – NYTimes.com.

This is a New York Times story on the prosecution of a family growing marijuana. They claim the marijuana is for medical purposes. The feds disagree. In the end, a jury will decide the fate of these people.

This case raises an ethical question for lawyers. Let’s say you are a lawyer in Colorado or Washington state. Someone comes in to the office and proposes a new company to sell medical marijuana. You form an entity. You write an operating agreement and you assist the client in setting up what appears to be a lawful business. Also, assume your clients obtain a state license and comply with all of the laws of their state.

BEFORE THE HEARING BOARD.

This case results from an error in judgment that took place in 2003, more than 11 years ago. A lawyer instructed a staff member to falsely attest that certain persons had witnessed the signing of a will. This is one of the easiest of disciplinary cases for the administrator to prove.

Here are the pertinent allegations:

Filed May 27.

A lawyer converted $1300 in client funds and loaned those funds to his sick brother. He later repaid the funds to the client. However, the ARDC opened an investigation and the deception was found out.  The ARDC hearing board recommended a censure. The Review Board increased the sanction to a 30 day suspension.

The Panel explains:

The Lawyer’s Duty of Candor to the Client – Should It Be Formally Defined?

Is it ever appropriate to lie to your client? Judge Raymond J. McKoski, an adjunct professor of law at John Marshall Law School, has posted a thoughtful article on the lawyer’s duty of candor to the client. The article is titlted: “The Truth Be told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client.” A link to the paper can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419494.

McKoski notes that Model Rule of Professional Conduct 4.1 “bars a lawyer from making a false statement of material fact to a third person in connection with the representation of a client.” He notes, however, “there is no Model Rule establishing and defining a lawyer’s duty of candor to a client.” McKoski believes that there should be such a rule. Indeed, he proposes the addition of a new subsection (c) of Model Rule 1.4 which would provide as follows:

BEFORE THE HEARING BOARD.

Each year the ARDC files many cases against lawyer who convert funds from client trust accounts. This case is slightly different. The ARDC has charged one member of a two-member firm with failing to (a) maintain accurate and complete client trust account records and (b) failing to make “reasonable efforts” that the other lawyers in the firm were in compliance with the Rules of Professional Conduct.

This is a case alleging inadvertent conversions of client funds due to a lack of record-keeping by the lawyers and the firm. There were several bounced checks and some clients apparently had to wait longer than they should have to receive their settlement checks.