Florida Attorney Suspended for Failing to Provide Competent Representation to Client, Engaging in a Conflict of Interest, and Engaging in Conduct Involving Dishonesty created by Sarah W.

In the case of The Florida Bar v. Shankman, 41 So.3d 166 (Fla. 2010), the Florida Supreme Court suspended an attorney for six months and ordered the attorney to attend the Florida Bar’s Ethics School for failing to provide competent representation to client, engaging in a conflict of interest, and engaging in conduct involving dishonesty.

The Florida Supreme Court affirmed the referee’s conclusions that the attorney did not provide competent representation to his client and did not fully explain certain matters reasonably necessary for the client to make informed decisions in violation of Rules Regulating the Florida Bar rules 4-1.1, and 4-1.4(b).  The Florida Supreme Court also affirmed the referee’s conclusions that the attorney did engage in a conflict of interest  and conduct prejudicial to the administration of justice in violation of Rules Regulating the Florida Bar rules 4-1.7(b), and 4-8.4(d).  Further, the Florida Supreme Court affirmed the referee’s conclusions that the attorney engaged in conduct involving dishonesty in violation of Rules Regulating the Florida Bar rules 4-8.4(c).

This attorney accepted a case in a branch of law that he had no experience working in.  In an attempt to comply with rule 4-1.1, he hired more experienced law firms to assist him with the case.  However, he failed to take the advice of those firms; and hired then fired several other firms.  Furthermore, in ignoring the advice of the more experienced counsel, the attorney failed to fully explain matters to the client.  Also, in the way that the attorney hired and fired numerous law firms, the courts found that it conflicted with the client’s interest to resolve the case promptly and also delayed the administration of justice. Finally, when the attorney would advise the client to fire the other law firms, he would tell the client not to speak with them, constituting misrepresentation, deceit, or fraud.

This was an excellent case to read, research, and discuss involving ethics and lawyers.  In this case, the attorney made one poor ethical choice after another.  This attorney, after being licensed to practice law for less than three years, was found guilty of professional misconduct for violating five different Rules Regulating the Florida Bar.

Dallas Lawyer Accused of Legal Malpractice: Mishandling a Real Estate Case created by Michelle V

In Webb v. Stockford, 331 S.W.3d 169 (Tex. App. – Dallas 2011, pet.denied), the Dallas denied Kurtis and Ingrid Webb’s claim of legal Malpractice against their attorney Brad Stockford; and granted Stockford’s motion for judgment notwithstanding the jury’s verdict. The Webb’s appeal.

The Webb’s filed a malpractice suit against Stockford alleging that Stockford mishandled their suit against a seller and his real estate agent in relation to the purchase of their home.

The Dallas Court of Appeals affirmed the trial court decision. The Webb’s failed to provide the evidence that Ault made false statements in regards to a sale of their home. Due to the lack of evidence in the above mentioned case, the Webb’s would not have recovered a judgment against Ault, there for there no grounds of negligence against Stockford. See Akin, Gump, Strauss, Hauer & Feld, L.L.P., 229 S.W.3d at 112; Schlager, 939 S.W.2d at 187. It was concluded that the trial court properly granted the JNOV in Stockfords favor.

In this case you learn the importance of collectability. The plaintiff must go one step further in showing that they would have won the case if not for the negligence of the attorney. The plaintiff also must show damages where collectable from one or more of the defendants. To establish collectability, you need to show sales proceeds, or current income, profits and/or access to finances.

IN RE: Rolando CABALLERO created by Aaron V

In In re Rolando caballero, Caballero was charged with wire fraud and mail fraud. After a plea agreement and pleading guilty to the mail fraud charge he was placed on a supervised probation for five years. He was also ordered to pay a fine of $57,937.50 plus another $100.00 for special assessment. There was no further pursues towards the wire fraud charges. The Chief Disciplinary Counsel of the Commission for Lawyer Discipline brought a disciplinary action against Caballero disbarring him in March 23^rd, 2007.

The Texas Supreme Court affirmed the referee’s conclusion that the lawyer (Caballero) knowingly committed the crime of mail fraud. In re Lock, 54 S.W.3d 305, 306 (Tex.2001).   The standard grievance procedure applies in all instances of alleged attorney misconduct, except where an attorney is alleged to have committed an “intentional crime.” Also, Tex.R. Disciplinary P. 2.13-.18,  3.09-.10; “ In re Mercier, 242 S.W.3d 46, 47 (Tex.2007) (per curiam).   The reviewing body may disbar the attorney under the standard grievance process, but also has the ability to assess “a range of lesser sanctions, including various types of suspension and reprimand.”

This case teaches us that the “The compulsory discipline procedure applies “[w]hen an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime.” Under Rule 8.05 states that an attorney convicted of an intentional crime, or an attorney put on probation for an intentional crime, “shall be disbarred

ARBITRATION CONTRACTS created by Jenny S.

                This case started when the trial court denied a motion to compel arbitration under the Federal Arbitration Act (FAA).  The appellant argued that the trial court erred by denying that motion.  The appellant (Brown) stated that the arguments raised by the Appallee (Green) would apply to the entire agreement and not specifically to the arbitration portion of the agreement. 

                Green is a real estate developer and originally went to Sidley Austin for help with his options for reducing his tax liability. Austin referred Green to a one of his predecessors- Brown & Wood, L.L.P. Brown agreed to issue an opinion letter.  This letter was on the federal income tax consequences of the transactions.  Green signed a contract with Browns & Wood that set out a fee and it provided an arbitration clause for any controversy that may arise from the letter.  When Green was informed by the IRS that his tax deductions were denied and he was being assessed for late fees, back taxes, and penalties he sued the entire firm alleging malpractice and fraud. Sidley Austin pushed for arbitration. Green changed his complaint to state that the arbitration clause wan “invalid and unenforceable”.  He stated that it (1) violated public policy as it was part of a criminal fraud and conspiracy to commit criminal fraud; (2) it was procured by economic distress; (3) obtained in violation of ethical standards.

The courts stated that it was undisputed that Green and Brown had signed an agreement and that this agreement did include an arbitration clause for the purpose of any controversy that could arise from the letter Brown was writing for Green.  Austin stated that Green has failed to prove any defenses against the first two arguments because they relate to the entire agreement between the two not just the arbitration clause. Austin also stated that Texas favors arbitration agreements because they are generally preempted by the FAA.

Green’s first argument stated that Austin knew that the IRS would not allow for the transactions because it would be seen as an illegal tax shelter.  These were the misrepresentation clauses and fraudulent conduct that he was stating in the beginning.  There is nothing in the records that stated these representations were related to the arbitration clause and looking at FirstMerit Bank, 52 S.W.3d at  758, we can uphold the fact that there is no link to the arbitration clause that is now being argued.

The court decided that the lower court had abused its discretion to the extent that it found Green’s fraud and duress unconscionability defeated the arbitration clause.

The third claim is that Austin did not explain to Green what the advantages and disadvantages were of having the arbitration clause. This contended to the factor of unconscionability.  The court found that the terms and conditions of the arbitration clause were not unusual and did not favor either party.  The arbitration was to be administered by the AAA and that the arbitrator was authorized to award and remedy that a court would award. Green then relied on the ethics opinion stating that an attorney should explain advantages and disadvantages of the arbitration before they enter into a contract that contained such a clause.  The court look at Texas’ Professional Ethics that stated opinions were concerned with attorney  discipline and are advisory rather than binding and that the commission was not at liberty to state the validity of arbitration clauses in agreements between the lawyers and their clients. The court found that the trial court had abused its discretion to the extent that it had found the arbitration clause to be unconscionable on this basis. 

The Court of Appeals concluded that Green failed to establish unconscionability as his defense to the arbitration clause of the contract. They then reversed the trial courts holding and remanded with instructions to grant the motion to compel arbitration.

Texas: Court of Appeals Reversed and Remanded to Grant Motion to Compel Arbitration created by Colleen S.

Austin Brown & Wood, LLP v. J.A. Green Dev. Corp., 327 S.W.3d 859, 866 (Tex. App.—Dallas 2010, no pet. h.), The Court of Appeals of Texas, Fifth District, Dallas, reversed and remanded with instructions to grant the motion to compel arbitration.  Green argued against the enforcement of an arbitration provision based on the defense that it was unconscionable because the provision (1) violated public policy as part of a criminal fraud, (2) was obtained by economic duress, and (3) was obtained in violation of ethical standards issued by the State Bar of Texas. The Court of Appeals of Texas, Fifth District, Dallas, concluded that defendant failed to establish unconscionability as a defense to the arbitration provision.  For that reason, the trial court abused its discretion by denying a motion to compel arbitration. 

 

The Court of Appeals of Texas applied the standard of appeals under Tex. Civ. Prac. & Rem. Code Ann. § 51.016 to the first unconscionability argument but nothing related specifically to the arbitration provision as opposed the engagement agreement.  Under the Federal Arbitration Act, a written provision in a contract to settle by arbitration a controversy shall be valid, irrevocable, and enforceable . . .”  9 U.S.C.S. § 1-16. 

Green relied on an ethics opinion stating that an attorney should normally explain the advantages and disadvantages of arbitration before entering into an engagement letter with an arbitration clause. Tex. Comm. On Prof’l Ethics, Op. 586, 2008.  Such opinions are concerned with matters regarding attorney discipline and are advisory rather than binding. Labidi v. Sydow, 287 S.W.3d 922, 929 (Tex. App.—Houston [14^th Dist.], 2009, orig. proceeding).  The commission recognized it was beyond its authority to address law relating to validity of arbitration clauses between lawyers and clients. Tex. Comm. On Prof’l Ethics, Op. 586, 2008. 

This case established the unfounded claim of unconscionability because the ethics opinion regarding disclosures attorneys should make to clients about arbitration agreements in their engagements letters is not binding in courts and does not reflect Texas public policy, which favors arbitration.  This case made it clear that a party who asserts not knowing there was an arbitration provision in the contract is not a valid defense because the clause was not hidden or obscured. In re Bank One, N.A., 216 S.W.3d 825,826 (Tex. 2007) (per curiam).

Washington: Lawyer Disbarred Over Multiple Counts of Violating Rules of Professional Conduct created by Beth S.

In In re King, 200,681-7 S. Ct. (WA 2010), the Supreme Court of the State of Washington upheld the decision of the Washington State Bar Association to disbar Paul H. King from the practice of law.

In 2007, the Washington State Bar Association charged Attorney Paul H. King with 10 counts of violating the Rules of Professional Conduct.  Disbarment was recommended by the hearing officer, and the Disciplinary Board approved that recommendation.  Mr. King appealed the decision based on what he argued were violations of his due process and appearance of fairness.  He did not, however, dispute any findings of fact or conclusions of law.

Mr. King had previously been suspended from the practice of law three times for various RPC violations, including his most recent two-year suspension effective April 25, 2002.  His suspension was lifted April 25, 2004, and Mr. King was retained by Mr. Rahrig five months later, on September 3, 2004.  Mr. King was hired by Mr. Kurt Rahrig to represent him in a potential case against his former employer.  Mr. King was then suspended again from March 9, 2005, until June 7, 2005.

On March 9, 2005, Mr. King informed the attorneys for Mr. Rahrig’s former employer that he was “taking a leave” and that they should send any pleadings to Attorney John Scannell at the same address.  However, Mr. King neglected to inform Mr. Rahrig, his own client, and proceeded to continue acting as lead attorney for this case.  He also did not inform Attorney Jay Levit, whom he hired to assist Mr. King in filing the complaint in the state of Virginia.  Mr. Levit found out about Mr. King’s suspension on May 26, 2005, and told Mr. Rahrig, who fired Mr. King on May 31, 2005.

Mr. Rahrig then filed a grievance against Mr. King on the same day.  Throughout the grievance process, Mr. King did everything possible to avoid receiving service and appearing for his deposition, as well as doing everything he could to intentionally delay the entire process, including sending a falsified summons and complaint to Mr. Rahrig to intimidate him into dropping the grievance.  He would also send notices of unavailability requesting the Disciplinary Board and hearing officer to suspend taking any official action, even though he had no authority to do so. 

Finally, on May 8, 2007, the Disciplinary Board filed a formal complaint against Mr. King.

The complaint alleged the following 10 counts of misconduct:

(1)           Violation of RPC 8.4(l) and ELC 14.1 - failing to notify Mr. Rahrig of his March 9, 2005, suspension.

(2)           Violation of RPC 8.4(c) – telling opposing counsel that he was simply “taking a leave” instead of admitting that he was actually suspended, as well as falsely identifying John Scannell as the attorney who would be filling in for him.

(3)           Violation of RPC 8.4(b), RCW 9A.72.020, RCW 9A.72.040, RPC 8.4(c), RPC 8.4(l), and ELC 14.3 – submitting a declaration in an official proceeding containing substantially false statements which he knew to be false, perjury in the first degree, and false swearing.

(4)           RPC 5.5(e), RPC 8.4(b), RCW 2.48.180, RPC 8.4(l), ELC 14.2, and RPC 8.4(j) – Engaging in the practice of law during a period of suspension.

(5)           RPC 3.1, RPC 4.4, RPC 8.4(c), and RPC 8.4(d) – Presenting a summons and complaint with a fictitious cause number to Mr. Rahrig, with said summons and complaint containing false and frivolous claims.

(6)           RPC 3.1, RPC 4.4, RPC 8.4(c), and RPC 8.4(d) – Using the above-referenced summons and complaint as a pretext for a deferral request intended to obstruct and delay Discliplinary Counsel’s investigation of the grievance filed by Mr. Rahrig.

(7)           RPC 8.4(a) and RPC 8.4(d) – Attempting to induce Mr. Rahrig to withdraw his grievance by threatening him with a frivolous lawsuit.

(8)           RPC 8.4(d), RPC 8.4(l), and ELC 5.3 – failing to promptly respond to requests for a response to the grievance.

(9)           RPC 8.4(d), RPC 8.4(l), and ELC 5.3 and 5.5 – Avoiding service of a deposition subpoena, failing to appear for the scheduled deposition multiple times, and failing to produce any of the documents requested in the subpoena duces tecum.

(10)         RPC 3.1, RPC 4.4, RPC 8.4(d), RPC 8.4(l), and ELC 5.3 and 5.5 – filing frivolous motions intended to obstruct and delay an investigation, as well as disobeying orders denying those motions.

Throughout all of Mr. King’s motions claiming violations of due process and appearance of fairness, not once did he deny any findings of facts or conclusions of law.  His allegations against the hearing officer and the Disciplinary Board were all found to be without merit, and therefore, the Supreme Court of the State of Washington affirms the decision to disbar Mr. Paul H. King.

Washington: Attorney Providing Client With Proper Assistance? created by Crystal S

            On the night of February 21, 2006 there was a confrontation between Kristina Grier and some of her friends at her house. He son Nathan was present and saw most of the incident. Kristina showed her guest Gregory Own her guns that she owned. After becoming intoxicated Owen got ahold of her gun and there was a fight between the two of them which resulted in Owen being shot and killed. Grier locked herself inside her house for four hours once the police arrived on scene.

            Grier was convicted of second degree murder and sentenced to 220 months in prison maximum and 24-48 months of community custody. She appealed on the grounds of ineffective counsel due to not requesting lesser offenses. She said that her attorney did not explain the difference between first and second degree murder manslaughter instructions to her. The statue decided that according to the Rules of Professional Conduct that the lawyer cannot be at fault for her “all or nothing” approach to the case. The defendant could not prove that the council did an ineffective job defending her.

            The Court of Appeals found Grier’s claim for ineffective assistance to be non-existent and decided to keep the conviction on the grounds precluded by the judge’s prior decision. The decision to request a lesser sentence did not lie in this defendant’s sphere.