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.

Kansas Lawyer Suspended for multiple counts of negligence created by Margaret S

In re Doudin No. 105,137 (Kansas 2010), the Kansas Supreme court suspended a lawyer indefinitely for several counts of “inability or unwillingness to accept and perform the most basic and fundamental responsibilities of an attorney.”

Therefore Conrad E Doudin is indefinitely suspended from the practice of law in accordance with Supreme Court Rule 203 (a)(2) (2010 Kan. Ct. R. Annot. 276).

Disciplinary Action Against Bent Karlsen created by Katy L.

Bent Karlsen failed to renew his attorney license which became inactive on April 1, 2007, yet continued to practice law in Minnesota through July 2007. There were six counts of unprofessional conduct relating to five separate client matters.  Practicing law with a suspended license violates Minnesota Rules of Professional Conduct Rule 5.5(a) and 8.4(d).

Karlsen also had eight different complaints from 2006-2007 for unprofessional conduct which included: neglecting client matters, failure to communicate, falsifying an affidavit, and promising to file a document but never doing so.

Karlsen’s failure to handle his client matters violated rule 1.3 3 of the Minnesota Rules of Professional Conduct, his failure to communicate violated Rule 1.4, and his misleading statements to clients violated 4.1.

Karlsen was indefinitely suspended from the practice of law, and was ineligible to petition for reinstatement for a minimum of 12 months, and if he so seeks reinstatement, must comply with requirements of Rule 18 and 26 RLPR. Karlsen was also ordered to pay $900 in fees.

This case teaches how important it is to always be honest and prompt with your clients. Rule 1.3 provides that a “lawyer shall act with reasonable diligence and promptness in representing a client.”  In addition, Rule 8.4 provides that “it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Minnesota: Lawyer Disbarred for Violation of the Minnesota Rules of Professional Conduct created by Virlisa L.

In In re Rothstein, 777 N.W.2d 31 (Minn. 2009), the Minnesota Supreme Court disbarred a lawyer for committing professional misconduct warranting public discipline, namely, misappropriation of funds from the law firm in which respondent was a partner and making false entries into the law firm's books to conceal the misappropriation.

The Minnesota Supreme Court has reviewed the file and agreed with the recommended disposition that the lawyer was in violation of Minn. R. Prof. Conduct 8.4(b) and (c) and committed a felony theft by swindling in an amount greater than $ 35,000, in violation of Minn. Stat. § 609.52 (2008).

The lawyer also waived his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR) and admitted the allegations of the amended petition. The lawyer and the Director jointly recommend that the appropriate discipline is disbarment. Having been disbarred by the Minnesota Supreme Court for violation of the Minnesota Rules of Professional Conduct, the lawyer was also subjected to reciprocal discipline in Wisconsin. See Office of Lawyer Regulation v. Rothstein 2010 WI 30.

This case teaches the importance of the lawyer’s professional behavior under Rule 8.4(b) and (c). Rule 8.4(b) and (c) that states a lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects or gage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

“California: Client sues his attorneys for legal malpractice” created by Teresa K

Michael Cassel, Petitioner, went to trial court suing his attorneys, Wasserman, Comden, Casselman, & Pearson, LP for legal malpractice. He claimed that his attorneys only through “[b]ad advice, deception, and coercion” got him to come to agree to a settlement of business litigation during mediation. The attorneys filed a motion to exclude client’s mediation-related evidence due to attorney-client privileges. Then the Court of Appeal reversed that decision; the Supreme Court then reversed the Court of Appeals’ decision. They held, too, that the confidentiality of the mediation-related discussions were in platy under Evid. Code, Stat. 1119, subds. (a), (b). It states “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration… .” “No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation, consultation, is admissible or subject to discovery, … .”

           

The Supreme Court reasoned that the mediation-related discussions between Cassel and his attorneys were in fact confidential; they were in the course of mediation. They held that a client seeking to use the confidential discussions as evidence was no exception.

Mediation confidentiality statutes protect Los Angeles lawyers in a legal malpractice suit created by Allison K

In Cassel v. Superior Court, 51 Cal.4^th 113, 244 P.3d 1080 (Cal.2011), the California Supreme court reversed the Los Angeles Superior Courts ruling when they held that all communications between the attorneys and client related to the mediation were inadmissible based on California’s mediation confidentiality statutes. 

In the client’s action against his attorneys he claimed legal malpractice, breach of fiduciary duty, fraud, and breach of contract.  Much of the client’s claim was based on the events that took place during a mediation between the client and Von Dutch Originals.  Before the mediation the client and his attorneys agreed to accept nothing less than 2million to settle.  However, after hours of mediation it was clear that Von Dutch Originals would not go beyond 1.25million.  The attorneys pressured their client to accept the 1.25million and called him greedy for wanting more.  The client attempted to leave in order to eat and get some rest, but his attorneys told him he had to stay.  Furthermore, client stated that his attorneys misrepresented the terms of the proposed settlement and falsely stated they would reduce his legal fees if he accepted the offer.  His attorneys to not let up and even accompanied him to the bathroom continually pressuring him to accept the offer.  After 14hours of continuous mediation the client signed the agreement.

The trial court granted the attorney’s motion to exclude all evidence of communication between the attorneys and client relating to the mediation pursuant to the mediation confidentiality statutes.  On appeal, the trial court’s ruling was vacated.  Conversely, the California Supreme Court reversed, agreeing with the attorneys and the trial court. 

The Supreme Court concluded that the mediation confidentiality statutes clearly exclude these communications from court proceedings.  The purpose of the statutes is to allow for uninhibited conversations, making it easier to come to an agreement/settlement outside of court.  While this makes proving a case of legal malpractice extremely difficult and may not have been a foreseeable consequence of the mediation confidentiality statutes, it is up to legislation to modify these laws and not the job of a court of law. 

Prominent Miami Attorney Suspended created by Jessica K.

In In re Fla. Bar. V. Adorno, 48 So. 3d 837, 2010 Fla. (Fla., 2010), the Supreme Court of Florida suspended Mr. Adorno from practicing law for three years for breaching a fiduciary duty to his clients.

The Florida Supreme Court affirmed the referee’s conclusion that Mr. Adorno was guilty of violating R. Regulating Fla. Bar. 4-1.7, 4-1.5, and 4-8.4.

The case involves a disciplinary case were Mr. Adorno represented clients in a class action case. It was later found by the referee that Mr. Adorno took excessive fees when he settled with individual plaintiffs to the detriment of the putative class. It was concluded that Mr. Adorno breached a fiduciary duty owed to the putative class and prejudiced that class when he settled on behalf of individual plaintiffs to the detriment of the putative class. The Supreme Court found that the actions by Mr. Adorno violated the Rules of Regulating the Florida Bar.

4-1.7: prohibits representation where the actions of an attorney constituted conflict of interest.

4-1.5: an attorney shall not enter into an agreement for, charge, or collect an illegal prohibited or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating the Florida Bar.

4-8.4: provides that a lawyer shall not violate or attempt to violate the Florida Rules of Professional Conduct.

Title: Louisiana: Lawyer accused of legal malpractice in fee reduction negotiations.

Preston v. Mariner Health Care Mgmt. Co., No. 10-30108, 2010 U.S. App. LEXIS 15721 (5^th Cir. La., July 28, 2010) is concerning the misunderstand between Preston and Mariner in the negotiations of the payment of fees owed by Mariner for legal services provided by Preston. Preston provided legal services for Mariner totaling $1,944,600.92. When Mariner did not pay the bill in a timely mater; Preston opened negotiations in deferring part of the bill to a later date. Mariner was under the impression that the bill had been reduced. This case is the result of the misunderstanding between the parties.

This case is the appeal of Mariner after the U.S. District Court for the Eastern District of Louisiana found in favor of Preston, and issued a summary judgment for the remaining $444,600.92 of the original bill.

Mariner is claiming that because Preston did not inform them that Louisiana law requires compromises of contracts to be reduced to writing; he had breached his fiduciary duty, committed legal malpractice, and was fraudulent in his actions. Thus, Mariner is appealing the summary judgment claiming these new charges make the charge a new and different case.

The doctrine of res judicata is to prevent a litigant from multiple lawsuits over the identical set of circumstances. The court found that this case met the four prong test for res judicata. Mariner’s appeal was based on the “same nucleus of operative facts.”  The charges of fraud, legal malpractice and breaching fiduciary duty were not allowed under the doctrine of res judicata.                              

The court found that the fee negotiations did not have a “meetings of the minds.” Mariner was responsible for the remained of the bill. The court affirmed.

Louisiana: Attorney Failed To Represent Client for the Second Time created by Jeaneane J.

Attorney Joanne Engum was hired by Janis Alston to represent her daughter Rhonda Alston against charges pending against her in 2002 and to expunge a 1995 conviction from her record.  Attorney Engum charged a flat fee of $2,500 for the 2002 charges and $500 for the expungement. On February 1, 2010 the Office of Disciplinary Counsel (“ODC”) received a complaint from Rhonda Alston against  Attorney Engum for not representing her and that she did not communicate with her or return her money. 

ODC investigated the claims against Attorney Engum and found that Engum failed to communicate with her client or inform her on how she intended to fight the charges. Ms. Alston attempted to contact Engum on many occasions but Engum failed to return her calls and made no attempts to contact Alston.  Engum moved her offices at least three times without informing her client. 

When Alston tracked down Engum she was working in another office and at that time Engum told Ms. Alston she would have someone else take the case and would get back to her with the information.  Engum never got back to Alston and that was the last time Alston talked to Engum.

Alston sent a certified letter to Engum, which Alston signed for, asking her the status of her case but still did not hear from Engum.  When Ms. Alston was turned down for employment because of the information on the background check that was not expunged from her record Alston filed a suit against Engum. ODC has sent certified letters to Engum to investigate the claims but Engum have never responded. Formal charges were filed on July 14, 2010 and mailed to Engum. (www.ladb.org/Engum,Joanne)

ODC has investigated the claims against Ms. Engum and found that this was not the first time that she failed to represent a client, Engum (1) had a similar disciplinary action filed against her in past years which she was sanctioned to one year and one day suspension plus restitution.  After investigation of this case the ODC finds that Engum failed to communicate with her client, failed to refund unearned fees, failed to cooperate with ODC investigation and failed to return unearned fees upon termination or representation.

Engum violated Rules of Professional conduct 1.3 (diligence); 1.4 (communication); 1.5(f)(5)(failure to return unearned fees); 1.16(d)(refund an unearned fee upon termination of the representation); and 8.4(a)(violated the Rules of Professional Conduct).  October 19, 2010, ODC filed a Motion to Declare Factual Allegations Deemed Admitted. November 5, 2010 an order was signed by the hearing committee chair finding allegations deemed admitted and proven by clear and convincing evidence pursuant to Louisiana Supreme Court Rule XIX, Section 11(E)(3). Engum had twenty days to respond and did not respond. ODC filed its submission on sanctions on January 4, 2011.

Engum (I) encompass the misconduct in Engum (II) therefor, Engum should be adjudged guilty of additional violations to fall under the sanction in Engum I – one year and one day suspension plus restitution and that will be added to her record and considered in the event she makes application for reinstatement in Louisiana.

Georgia counsel and members of their firm disqualified created by Melissa J.

In Kingdom Ins. Group, LLC v. Cutler & Associates, 2011 U.S. Dist. LEXIS 35257 (M.D. Ga., Mar. 31, 2011). Plaintiff’s counsel Bruyere and Kane were disqualified from acting as counsel on ethical reasoning.

The two attorneys worked together to represent the defendant and plaintiff in a previous case.  In the second case the attorneys are working together to represent the plaintiff who is suing the defendant Cutler.  We have to first look at the two cases.

In the present case, Kingdom Insurance group put up a claim for relief against Cutler and Associates.  Kingdom Insurance entered into an agreement with Cutler to market the insurance products of United Healthcare Insurance Company.  Cutler acted as an FMO for United to recruit agencies to sell products to consumers and to find other agents to sell United’s products.  One of Cutler’s recruitments was Kingdom Insurance.  Kingdom claimed that Cutler did not fulfill its duties.  They said that Cutler was not prepared to manage workflow or in finding new agents.  Kingdom ended up losing thousands of sales due to Cutler.  Kingdom Insurance accused Cutler of a number of claims including fraud, conspiracy, and fraudulent misrepresentation.

In the previous case, Cutler and Kingdom were sued by Peek Performance Inc. in North Carolina because they failed to deliver computer equipment that would have assisted with commission payments and not managing appointments appropriately.

Cutler now wants Bruyere and Kane disqualified from acting as counsel to Kingdom because they represented him in the North Carolina case.  Cutler wants them disqualified for violating their ethical duty owed to former clients.

Attorneys practicing in Georgia must adhere to the Georgia Rules of Professional Conduct as well as the American Bar Associates Model Rules of Professional Conduct.

The Georgia Rule of Professional Conduct Rule 1.9(a) states “a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” 

The pending case against Cutler is strongly related to Bruyere and Kane’s representation of Cutler and Kingdom in the previous North Carolina case.  Even if the information between the two cases were limited there is a strong connection that should be avoided if possible.

The Cutler Defendants’ motion to disqualify Bruyere and Kane from acting as counsel in this case is granted.  All lawyers associated in the firm with Bruyere and Kane are also disqualified.

Goldberg as a Divorce Attorney by Kayla B.

In 2003, Laura Orcutt retained Michelle Goldberg as a divorce attorney. Leslie Reynolds, Orcutt's husband, failed to appear at a hearing for temporary orders . Goldberg withdrew as Orcutt's attorney in 2004. In 2005, Orcutt sued Goldberg for legal malpractice for allegedly failing to serve Reynolds with process and providing him with notice of the temporary orders hearing in 2003.Goldberg filed a summary judgment motion that Orcutt's claim was barred by res judicata. Res Judicata means 'the thing has been judged.' The court accepted Goldberg's motion followed by Orcutt filing for a new trial that was granted. The trial court granted Goldberg's no-evidence motions.

Did the court error when they granted summary judgment for Goldberg?

A summary judgment is an immediate decision by the court without going to trial based on the papers filed by the parties. The party who files it is responsible for showing the burden that there is no issue of face but that it is a issue of law. A no-evidence summary judgment is granted when 'there is a complete absence of evidence of a vital fact, the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a scintilla, or the evidence conclusively establishes the opposite of vital fact.'

Orcutt needed to prove that she did suffer damages from Goldberg's malpractice. However, when the damages are too uncertain to be determined, they cannot be recovered. Orcutt needed to also prove there was probative evidence to raise a question of fact. She gave a dollar amount based on the monthly spousal support and attorney's fees. That dollar amount was negated by a lack of evidence. There was not a record of a signed order, a transcript of the May 19,2004 hearing, or another record showing that the court vacated the temporary orders. This evidence was so weak that the court did not consider it as evidence and granted Goldberg's motions.

The trial court's judgment was affirmed.

http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

Lawyer denied his application for a writ of Habeas Corpus created by Steve B.

In Capps v. State, 265 S.W.3d 44, the man challenged the order of the court that denied his application for a writ of Habeas Corpus.  This challenged his prosecution for misapplication of fiduciary property under the Texas code.

The lawyer was disbarred for not carrying out the settlement proceeds to a client.  Instead of giving his client the money he put the cash into investment funds for his own benefit.  He was supposed to pay his client $636,000 for the case.  Before his case he wanted a writ of habeas corpus, stating that the State’s case against him for misapplication following the judgment of disbarment against him.

The court stated that there was very little evidence that the defendant’s disbarment was so punitive in effect as to transform the actions and sanctions.

The order denying the inmate’s application was affirmed.