What’s in a name?

For example, the folks behind the popular Radiolab podcast also launched a spin-off podcast last year about the U.S. Supreme Court called “More Perfect.”  The reason for naming it that, of course, is that it almost assuredly a reference to the famous line in the Preamble to the U.S. Constitution

But today it seems a funny/ironic name because the U.S. Supreme Court managed to make a pretty bad mistake that is being reported on now and that likely added some real stress into the life of a lawyer whose only crime was having almost the same name as another lawyer.

You can read about the story itself, and find links to other outlets reporting on the story, at the ABA Journal online, but the short version is that the U.S. Supreme Court intending to suspend and potentially disbar a Christopher P. Sullivan of Vermont instead suspended and issued show cause why disbarment should not occur to a Christopher P. Sullivan of Boston, Massachusetts.  The Vermont Sullivan’s middle name was Paul and he had already been disbarred in Vermont after being involved in a fatal automobile accident and pleading guilty to a DUI.  The Massachusetts Sullivan’s middle name is Patrick.

If you do the math, you will find that the Sullivan who was wrongfully sullied ended up with 15 days passing between being suspended and the U.S. Supreme Court fixing its mistake and reinstating him.  Presuming he was aware of and dealing with fixing the Court’s mistake, I imagine that was a long 2 weeks for that gentleman.

But, in terms of a larger lesson to be learned, I think the lesson is that we all need to be more deliberate rather than more perfect in what we do.  I can’t help but think that a more deliberate review of information on the Court’s part would have avoided the “mistaken identity” error in the first place.

I like to think that most errors I make are ones that, upon reflection, I could have avoided had I been more deliberate in the first place.  I reckon you might say the same about yourself, so …

It doesn’t all even out in the Walsh.

Selecting just the right item to write about is not easy.  This is not going to be an instance of accomplishing it.  This is going to be an instance of writing something just because I truly find the outcome astounding (or at least I found the outcome astounding when I first read a blurb about the situation, but now having read the full Court opinion I’m less astounded).

A little less than a week ago, the Wisconsin Supreme Court released an opinion in which it accepted a lawyer’s effort at consenting to the revocation of his law license.  An outcome that is, as I understand Wisconsin procedure, technically not a disbarment, but also not quite the same thing as the surrender of a law license that we have here in Tennessee.

The headlines/blurbs I encountered as a first way of hearing about the story were of the Law360 variety — Atty’s Scanty Records Preclude Client Repayment, Court Says.   The disheartening takeaway one gets from reading that story reporting on the opinion is that a lawyer got away with trust account malfeasance by failing to keep the records that would be necessary to prove up the wrongdoing.  Knowing how tough disciplinary authorities can be on trust accounting violations, this was one where I had to find the time to read the actual opinion.

You can do so right here.  If you want to do so right now, I’ll wait until you get back.

Ok.  So now that you’ve read it too, what about the one client and his $1,500?  The second part of the complaint/investigation?

Attorney Walsh agreed to represent O.B. in attempting to have his felony convictions expunged or to seek a pardon for those convictions.  According to his fee agreement with O.B., Attorney Walsh accepted an advanced flat fee of $1,500 at or near the time of entering into the representation and deposited the advanced fee into his law firm’s business account.  Attorney Walsh claimed to the [Office of Lawyer Regulation] that he had done work on O.B.’s behalf and was able to describe some of that work.  According to the OLR’s summary Attorney Walsh promised O.B. in July 2015 that he would be following up on a lead that required research, but warned that O.B. would likely be out of luck if the research did not yield favorable results.  Attorney Walsh, however, failed to communicate the results of his research to O.B.  He then failed to provide O.B. with any of the notices that were required when an attorney placed an advanced fee into the attorney’s business account and utilized the alternative advanced fee procedure outlined in [a particular Wisconsin rule].  Indeed, Attorney Walsh failed to provide O.B. with a final accounting that showed how he had earned the $1,500 flat fee.

For a while I thought I could manage to work through the giant, headline-grabbing angle given that none of the clients associated with any of the things involving fluctuations in the bank records contend they are out money and since there weren’t sufficient records available to truly prove what was what, the Wisconsin disciplinary counsel opted not to seek restitution.  so while not quite “no harm, no foul,” but “definitely a foul, and he’s offering to give up his license without a fight so we’ll just take it and be done with it.”  Though it does appear that the lawyer first tried an approach that would be more like Tennessee’s law license surrender approach by first filing a petition for the voluntary resignation of his license.  Like surrender here, the existence of a pending disciplinary investigation can thwart that in Wisconsin so he tacked to filing a petition for consensual revocation.

But, there was at least that one client standing right there in these proceedings saying that they were out $1,500 as a result of this character.  How could the Wisconsin disciplinary counsel not pursue getting that person their money back?  And how could the Wisconsin Supreme Court manage to shrug its shoulders at that outcome?

Similarly, given the lack of billing records, the [Office of Lawyer Regulation] cannot determine with any reasonable certainty that [the client] should receive a refund of any particular amount of his advanced fee from Attorney Walsh.

Talk about the opposite of a “tie goes to the runner,” kind of ruling.

Which leads me back full circle to being astounded at that outcome up Wisconsin-way.  It’s an outcome that sends a really clear – but unfortunate – message to Wisconsin attorneys that are truly willing to just disregard obligations — make sure you don’t keep records as well.

That’s not a Rule 8.4(c) violation. THAT’s a Rule 8.4(c) violation.

In February 2017, more than a dozen law professors filed an ethics complaint against Kellyanne Conway, Counselor to the President, alleging that she violated the attorney ethics rules applicable in D.C. through several false public statement she made — most notably, her repetitive statements about a terrorist incident that never actually occurred – the “Bowling Green Massacre.”  Now, many people were not aware of the fact that Ms. Conway is an attorney — she doesn’t work as an attorney in the present administration.  (In fact, her D.C. law license is already administratively suspended.)  The core rule that the professors contend Ms. Conway violated is Rule 8.4(c) which makes it a violation for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Unlike many other ethics rules, Rule 8.4 does not contain language limiting its scope to when “representing a client.”  While I am not a fan of Ms. Conway, I very much disagree with the notion that her public statements in her political role are the kind of conduct to which Rule 8.4(c) should be applied.  A reporter with The Blaze was kind of enough to let me comment in an article about the ethics complaint against Conway where I elaborate more fully on why I disagreed.  You can read the article with, including my extensive comments, here.

Now, I feel compelled in fairness, instead of just knocking something down the opinion of others, to try to offer a good example of lawyer conduct that I think would fit as a Rule 8.4(c) violation but that doesn’t involve representing a client.

So, let me try a scenario.

Say you are a lawyer, and you are undergoing a job interview.  If you lie in response to questions that are important to whether or not you get the job, that would be fodder for a Rule 8.4(c) violation.  Or, maybe to make the violation even more palpable (if not clearer), let’s say you are seeking a public job.  Perhaps, a really high-profile one, involving the government.  And you lie during your job interview or on the application you have to submit for the position as part of a background check.  That would definitely trigger Rule 8.4(c) in my view.

Heck, while I am just freewheeling on this whole scenario, let’s really ramp up the stakes.  Let’s go with an attorney position in the federal government where your appointment has to be confirmed by the U.S. Senate.  And, let’s say you lie in response to written questions posed to you by a Senator or you give a false and misleading response to a Senator’s question during a confirmation hearing or, gosh, maybe you do even both of those things.  That would definitely be a Rule 8.4(c) violation.  And, given that there would be also be lying under oath involved and lying to Congress involved, Rule 8.4(b) would actually come into play as well.  That’s the rule that prohibits a lawyer from “commit[ting] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

So, yes, that would to me be a very solid foundation for multiple Rule 8.4 violations.  And, in my scenario, the lawyer engaged in dishonesty, deceit, and misrepresentations would not even have to have been undergoing the job interview to be the Attorney General of the United States, but if it helps to put flesh on the bones of the hypothetical to think I was talking the whole time about the current U.S. Attorney General then, well, have at it.

[And, as to the title of this post, you’re going to have to read that title in a Paul Hogan as “Crocodile Dundee” Australian accent.  And if you aren’t familiar with him or that movie, it was a lot more popular back in 1999 when Mr. Sessions said this to explain his vote to impeach a different President of the United States.]

Lying about everything is an awful way to go about life.

No, stop, this is not a post about politics.  Not sure why you’d think that just from the title…

It’s Groundhog Day here in the United States.  As a person of a certain age, Groundhog Day makes me think of the Bill Murray movie more than the actual parlor trick with a rodent that happens in Pennsylvania, so mining a situation that happens over and over again (unfortunately) in the world of ethics feels like low-hanging fruit.  That situation:  Lawyers losing their license over the willingness to lie.

But, today’s entry involves a lawyer on his way to being disbarred from practicing law in Michigan for conduct of an extent that (fortunately) you don’t see every day.  The conduct is level of mendacity that is difficult to imagine explainable as anything other than an actual psychological condition — someone who comes across as a pathological liar or a sufferer of narcissistic personality disorder.  Again, stop, why do you keep trying to think about politics in this post.  You should stop being so weird about this.

The lawyer in question is a gentleman named Ali Zaidi.

Now, before grabbing snippets of the Opinion issued by the State of Michigan Attorney Disciplinary Board that details the lengths and breadths of Mr. Zaidi’s false statements that cost him his license, the subject matter of some of the falsehoods gives an opportunity for a brief reminder about an aspect of the ethics rules not always spoken about or focused upon.

Michigan, like most jurisdictions, has a version of Rule 7.1 that makes it unethical for lawyers to make false statements about themselves or their services.  Lots of lawyers think of that rule – Rule 7.1 —  as applying only to advertising – because it is housed in the 7s – but it actually applies to any communications by lawyers.  An example I’ve used from time-to-time at seminars is to make the point that a lawyer who sends inflated bills to a client wouldn’t only violate RPC 1.5 but also would run afoul of RPC 7.1 because the contents of the billing statement would be a false and misleading communication about the lawyer’s services – specifically about the amount of time the lawyer spent providing those services.

With that more academic pursuit behind us, here are the snippets from the order that show the scope of the falsehoods this to-be-disbarred Michigan attorney used in bringing about his own downfall:

failing to correct his resume during his employment with one firm; submission of fraudulent resumes to a potential associate, a staffing consultant to fill a position with another attorney, and the Bank of Montreal; repeated failure to provide his correct address to the State Bar; misrepresentations in and related to respondent’s website for Great Lakes Legal Group; and misrepresentations in his answer to the Request for Investigation.

The order lays out in pretty significant the extent of the falsehoods in the various resumes which included claims to be licensed in two states where he wasn’t, claims to have worked as a summer associate at three firms where he never worked, claims to have earned an undergraduate degree from Harvard which he didn’t, and claims to have competed in an Olympics for a U.S. Field Hockey Squad of which he was never a member.  Beyond his resume claims, the lawyer also practiced law under the name of a law firm, Great Lakes Law Group, which he later admitted wasn’t really so much an actual law firm as an “idea that is still in progress.”  The panel also even threw shade on parts of the lawyer’s resume not proven in the proceedings to be false in a footnote that lists other claims in terms of education and work history about which the panel is clearly quite skeptical.

This lawyer also did his cause no favors by representing himself and parts of the order focus on things that were said during the defense of the case that were also false like his reason for not showing up for hearings.  But, he may have even done himself more damage when he was present and involved in the hearings:

[PANEL MEMBER 1]: Where do you live now?

MR. ZAIDI: I currently-my-to establish clarity on that, this has been a source of some issues and concerns, I will be in Texas. My whole goal after my tenure ended in Michigan is

[PANEL MEMBER 1]: See, it’s not a trick question. Where do you live now?

MR. ZAIDI: I have a place. It’s not a simple answer. I’m trying to explain to you and give you that answer as well. Texas was a goal, which is why I always put Texas. She mentioned my current address is in New York. And even when I called [the State Bar of Michigan] and I updated my- I let her know that Texas – that address in Addison, Texas is still the best address for me.

[PANEL MEMBER 1]: Who lives there?

MR. ZAIDI: It’s my family business. And the reason – and part of the reason – let me explain to you why­

[PANEL MEMBER 1]: So it’s not even a home? It’s a business address?

MR. ZAIDI: Yes, it’s a business address.

[PANEL MEMBER 2]: What is your family business.

MR. ZAIDI: My Dad owns some restaurants.

[PANEL MEMBER 2: So you gave the address of the restaurant in Texas?

MR. ZAIDI: No, it’s not a restaurant. It’s basically his office where he operates and there are other offices there. It’s just basically a big office building. And that’s where ­

[PANEL MEMBER 1]: When did you come to Michigan for this hearing?

MR. ZAIDI: I came this morning.

[PANEL MEMBER 1]: Where did you fly from?

MR. ZAIDI: I didn’t fly. I drove.

[PANEL MEMBER 1]: Where did you drive from?

MR. ZAIDI: I drove from Toronto.

[PANEL MEMBER 1]: What are you doing in Toronto?

MR. ZAIDI: Well, my wife lives in Toronto. And I live in Toronto for the most part, but I travel routinely to Lewiston where I’m trying to establish some business there.

[PANEL MEMBER 1]: Where’s Lewiston?

MR. ZAIDI: It’s in New York.

Not to say that having a lawyer represent him during the proceedings would have let this lawyer be spared disbarment, but not representing himself was clearly the only possible way that outcome might have been avoided.

 

Glitch in the TN disciplinary procedural rules?

I got a call a week or two ago from another Tennessee lawyer trying to noodle through a situation.  The caller was curious to see if I could offer any insight about why a situation that seemed a bit broken was not.

I couldn’t.  Instead, I was able to sort of confirm for the lawyer that the situation does seem to be a bit broken.  The situation involves an aspect not of the ethics rules in Tennessee but the rules that govern disciplinary proceedings and the enforcement of their outcomes – which are housed in Tenn. Sup. Ct. R. 9.

More particularly, the situation involves the application of a provision that governs certain things a lawyer must do by way of notice when being disbarred, suspended (even temporarily), or having their license transferred to disability inactive status.  The problem arises from treating suspensions and disbarment the same way.  When the suspension is a lengthy one, these provisions make sense, but when you are talking about a short suspension — 30 or 60 days for example — the analogy breaks down.

The specific section, Section 28, contains 11 sub-parts of provisions addressing requirements that are triggered by any order of disciplinary suspension just as with an order of disbarment.  The first four sub-parts, Section 28.1 through 28.4, present no real issues as they address the effective date of an order, that a notice has to be sent by the lawyer to clients, and opposing counsel/adverse parties within 10 days of the order, and requirements to maintain records about such things having being timely done.

The problem with having this rule apply to”[o]rders imposing disbarment, suspension, transfers to disability inactive status, or temporary suspension” alike kicks in with the next three sub-parts of the rule:

28.5.  Return of Client Property.  The respondent attorney shall deliver to all clients any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

28.6.  Refund of Fees.  By no later than fifteen days after the effective date of the order, the respondent attorney shall refund any part of any fees, expenses, or costs paid in advance that has not been earned or expended, unless the order directs otherwise.

28.7.  Withdrawal from Representation.  The respondent attorney shall within twenty days after the effective date of the order file in the court, agency or tribunal in which the proceeding is pending a motion for leave to withdraw or a motion or agreed order to substitute and shall serve a copy of the motion or agreed order on opposing counsel or the adverse party, if unrepresented, in the proceeding.

Now, again if we are talking about a lengthy suspension, these provisions make sense.  And, Section 28.6 at least acknowledges that the order imposing a suspension could even direct otherwise as to refunding unearned fees, but similar language, however, surely needs to be added to Sections 28.5 and 28.7 because the application of these requirements might not only be contrary to a client’s interest but will have the impact of essentially practically extending the length of an otherwise short-term suspension.

Looking at Section 28.7 specifically, if you do not even have to file such a motion until twenty days from the order, by the time you have it heard and ruled on by a court, a lawyer’s 30-day suspension will either be over, or practically will be over.

Now, perhaps the justification for these provisions is that even for 30 days a client shouldn’t be left defenseless in a matter and represented by a lawyer who cannot do anything, but there seems to be a very good reason to believe that all three of these provisions ought to reference the potential for an order to direct to the contrary and not just Section 28.6.  It may be more trouble for client and lawyer alike for these things to have to happen for just a short suspension rather than permitting the order to say to the contrary so that the client can simply choose to wait out the suspension.  Likewise, in situations in which more than one lawyer (whether at the same firm or different firms) is representing the same client in the same matter, during the suspension the client won’t be left defenseless at all.

This situation particularly seems in need of fixing when other related provisions in Rule 9 are examined.

Section 28.10 indicates that “[p]roof of compliance with Section 28 shall be a condition precedent to any petition for reinstatement.”  Section 12.2(a)(1) makes clear that, unlike in the past when lawyers could automatically resume practice after certain short-length suspensions, “no attorney suspended” under any part of Rule 9 :shall resume practice until reinstated by order of the Court.”

And, Section 12.2(a)(3) plainly indicates that all suspensions “regardless of duration” are subject to Section 28 “unless otherwise expressly provided in” Rule 9.

Redefining what it means to be a “nonlawyer.”

I’ve written (quite a long time ago now it seems, but it was only just last Spring) about the unfortunate nature of lawyers calling people who aren’t lawyers “nonlawyers” – rather than referring to them in a less condescending fashion such as “regular people,” for example.  But, I still do it all the time, so I’m little more than a hypocrite at the moment on this particular issue.  I will admit that usually the context of the discussion — especially if it is about legal ethics where the ethics rules repeatedly make reference to that term — can make it harder to avoid saying/writing it, but that’s not really the best of excuses.

Thus, the best way to eradicate the mildly offensive use of the terms would be to repurpose the word with a new definition.

Nonlawyer: n. someone who pretends to be a lawyer but actually isn’t one.

There would be two substrata of nonlawyers under this new definition: (1) a person who used to be allowed to practice law (see also “lawyer”), but who lost that right, and then continued to act as if they were still a lawyer; and (2) a person who was never actually licensed to practice law at all but have acted as if they were in dealing with other people.

In my reading pile from March, I find an instance of each of these two types.

Coming in the first category would be this New York nonlawyer who might be a real-life spoiler alert for fans of Better Call Saul (though can’t really say a true “spoiler” alert as much as speculation; I’m just guessing how/why James McGill ultimately has to take on the name Saul Goodman).  Most recently, Jay Lipis was disbarred in New York in March 2016 after he admitted that, during a time that he was suspended from the practice of law in Massachusetts, he continued to practice law but did so under a fake name – Jeffrey Kriger.  While still serving his suspension in Massachusetts, he went to work for his old personal injury firm:

as an unpaid “settlement consultant” reviewing files, valuing cases, determining demand amounts, negotiating settlements with insurance adjusters, and communicating with clients about settlement offers, without adequate supervision. Moreover, in conversations with insurance adjusters, the respondent at times falsely identified himself in order to conceal his identity as a suspended attorney, and at other times falsely identified himself as an attorney or failed to correct any misunderstanding that he was an attorney at the law firm

This summary of the 2015 order suspending him in Massachusetts provides more of the details and also makes clear that there were quite a few other issues of unethical conduct.  (For those that are interested in what, if anything, happened to the lawyers employing him at that personal injury firm, you can read about that over at the Legal Profession Blog.

Fitting into the second category would be Kimberly Kitchen.  Although her name actually sounds like a pseudonym, she wasn’t lying about her name… just about being a lawyer … for a decade.  In addition, to “practicing law” for almost 10 years before being caught, she also managed to serve as the president of a county bar association in Pennsylvania before being found out.  In March 2016, she was convicted of forgery, unauthorized practice of law, and felony records tampering.

There are, actually, a surprising number of people falling into this second category, and their existence (and short-to-medium term success) often says more about how lax law firms can be about doing background checks on the lawyers they hire than about why someone — with a seemingly infinite number of possible things to pretend to be — would choose being a lawyer.

Ms. Kitchen’s case, however, does not seem to be one where it is obvious that the law firm that hired her (at least the last one to do so and that was making her partner in April 2014 when the fraud came to light) failed to do sufficient due diligence, as NBC News reported back when the criminal charges were brought against her that she:

allegedly forged numerous documents attesting that she was a licensed attorney, including an attorney’s license for 2014, supposed bar examination results, supposed records of her law school attendance and a check purporting to show she’d paid her registration fees.

While there may seem like there were a number of available avenues where her deception could have been ferreted out given that she didn’t go about fabricating a nondescript background:

According to her resumé, she graduated summa cum laude from Duquesne University School of Law in Pittsburgh and had taught trust and taxation law at the Columbia University School of Law.

Yet, as the CBS news report on her conviction makes clear, she even forged an email from Duquesne to make it appear she had attended there.

Variations on two unfortunate, recurring situations.

Much has been written over the last few years about the risks for lawyers of increasingly sophisticated financial scams targeting them.  I’ve even written about the issue some in the past.

Within the last 30 days or so, a “new” financial scam has gotten some publicity that should help real estate lawyers in particular to remain vigilant.  British media detailed how this sort of scam works, and a California paper reported on a panel discussion at a real estate forum about something similar, and the ABA Journal online did a nice piece this week tying the two media pieces together.  The nature of this scam, which those in the know have dubbed “spear phishing,” appears capable of summarizing as a three-step process: (1) gain unauthorized access (either by hacking or malware of some sort) to the email account of an attorney (or real estate agent or potentially someone else involved in the process, such as the lawyer’s client); (2)  exercise patience and monitor the traffic on the account to find an ongoing deal that’s headed to closing, and (3) use the control over, or information learned from, the compromised email account to send an email from that account to the other participants that changes existing wire transfer instructions to divert funds to the hacker.

Fortunately, one of the takeaways from the articles is that real estate lawyers can protect themselves to a significant degree from the most financially harmful step of the scam simply by getting confirmation by telephone or some other non-email means of any email instruction that changes the destination for funds.  The implication of the success of the second step of the scam — that someone else may be already hacked into a lawyer’s email account and just patiently reviewing all that the lawyer has going on and biding their time to shoot their spear — just further underscores the importance of cyber-security/data security in the modern practice of law.  And, not just for real estate lawyers, as there are other areas of practice where “spear phishing” lawyers could provide access to large financial hauls.

Lawyers losing their licenses as a result of abandoning their law practice and leaving clients high and dry is also a far too common occurrence.  Most of the time, the same external forces (whatever they may be) that drove the lawyer to abandon their law practice also lead to the lawyer ignoring the disciplinary proceedings altogether culminating in disbarment.  Such a story playing out in the context of running a law school clinic is not something I can recall running across before until now.

A New York lawyer was disbarred earlier this month in connection with allegations that he had abandoned the cases he was handling through the employment law clinic at the Cardozo School of Law (the law school affiliated with Yeshiva University in New York City).  That law school shut its clinic down in 2013, but claimed it expected that the lawyer – who had been an adjunct clinical professor at the school — would either wrap up or transfer all of the cases before the clinic closed.  When the law school never received information about the cases, it apparently filed a complaint against the lawyer for abandoning the cases.  The lawyer never responded or participated in the disciplinary proceedings.  That lack of cooperation led first to his immediate suspension in March of last year and, ultimately, to the January 2016 order of disbarment which indicates its entry came about pursuant to a rule that permits disbarment when a lawyer takes no action within six months of being immediately suspended.

 

 

 

Remember my conversation with the SuperShuttle driver?

A while back I wrote a piece about a relatively deep conversation I had about right and wrong and why lawyers do some really bad things with a SuperShuttle driver in Phoenix.  If you missed it, you can read it here.  But one of the things I didn’t say during that conversation was that there are some people out there who are:  just.the.worst.  Some of them end up lawyers.  And when they do, hoo boy.

I imagine if I asked the driver to paint the picture of someone who he would consider the worst possible lawyer of any of the truly rotten apples,then he’d probably say it would be someone who steals money, lies, is disrespectful, rude, vindictive, a bully, and maybe even something of a racist/misognynist/homophobe.  It is probably less likely that the driver would even think to also say that he blabs about privileged communications, but maybe he’d think to make that point as well.  Well, this Indiana lawyer who just got disbarred the first day of this month reads like he came straight out of central casting for the part.

I bet lots of people will be writing about this character, or already have written about him ( I promise I’m not lying when I say I haven’t gone looking for or read anybody’s take on this guy yet beyond the ABA Journal story here that got it on my radar screen).

I’m writing about him right now because I’m lazy.  My seminar season is about to kick into gear starting tomorrow with an hour of ethics I am looking forward to doing for the Memphis Bar Association Labor & Employment section here in Memphis.  Between actual work and seminar season, I’m going to have to be highly efficient with content for the blog this month.

Go read the order in all its gory detail if you can manage it, or I can give you a pretty good feel for it with this snippet of the Court’s order:

The seriousness, scope, and sheer brazenness of Respondent’s misconduct is outrageous.  He stole approximately $150,000 from his clients, threatened and intimidated his staff, disparaged and mocked virtually everyone around him, lied to all comers, and obstructed the Commission’s investigation.  Perhaps most disturbingly, Respondent repeatedly and fundamentally breached the duty of confidentiality that lies at the heart of the attorney-client relationship.  Respondent recorded privileged conversations and shared those recordings with others for his own amusement, he solicited his office staff to do the same, and he posted client confidences and falsehoods on a legal marketing website in order to “punish” certain clients and inflate Respondent’s own website ranking.

There are some nuances to the guy’s situation – like manipulating online reviews and whether opinions like that New York one from earlier this year tempt that kind of behavior – that could merit some thoughtful exploration, but it doesn’t deserve to be done in the context of someone who appears to just be a horrible human being.

Official dishonesty and the consequences for lawyers – 3 of the latest examples

A common theme in many disciplinary proceedings brought against lawyers involves dishonesty.  This should not really be a surprise given that lawyers are human beings and human beings have a tendency toward being dishonest when they can get away with it.  Although there is an ethics rule that, on its face, makes it unethical for a lawyer to engage in any kind of dishonesty at all, lawyers usually only get taken to task for a category I’ll call today official dishonesty.

One such type of official dishonesty involves failure to make full disclosure in connection with an application for admission in some other jurisdiction.  The consequences of this kind of official dishonesty can be severe as is demonstrated by the one year and one day suspension now being imposed on this Pennsylvania lawyer for failing to disclose prior discipline against him when he applied for admission to the federal court in the Eastern District of Pennsylvania.  As luck would have it, the lawyer’s failure to make disclosure involved a 1996 suspension, also of 1 year and 1 day, which was itself brought about by failing to disclose a prior arrest on his original application for admission to practice law in Pennsylvania.

Disciplinary proceedings are not, of course, the only negative outcome that can result from a lawyer engaging in official dishonesty or failure to make full disclosure.  Another kind of negative outcome, discussed before in this post, involves losing out on coverage from your insurer for legal malpractice/professional liability claims.  Law360 has the story of another lawyer who, already faced with defending a legal malpractice lawsuit, is now faced with having no coverage for it as a result of a ruling this month by the Indiana Court of Appeals.

The issue of misrepresentation alleged by the lawyer’s carrier is a common one – a claim, with the benefit of hindsight, that the lawyer was aware he faced a potential claim and should have disclosed such on a 2011 renewal application.  As is also often the story, the claim about which the carrier says the lawyer should have been aware is the same one now being litigated and about which the carrier has refused coverage.  In this instance, the lawyer’s client’s case had been dismissed as a discovery sanction and that dismissal was still on appeal in the Indiana system at the time the 2011 renewal application was completed by the lawyer.  The Law360 piece grabs the salient quote from the court of appeals ruling (which actually reversed a trial court that had sided with the lawyer’s argument that he’d made no material misrepresentation):

“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in [the lawyer’s] position would realize that his client might pursue a potential legal malpractice claim against him should the Supreme Court affirm the trial court.”

For lawyers, there are quite a few ethics rules that are implicated by acts of dishonesty, RPC 3.3 (false statements to tribunals), RPC 4.1 (false statements to third parties), RPC 7.1 (false statements about the lawyer or their services) but the rule that has the broadest reach, and to which I referred at the beginning of this post, is RPC 8.4(c).

That rule says that “[i]t is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  Unlike many other ethics rules, the text of RPC 8.4(c) does not limit itself to things done in the course of representing a client.  Figuring out what it does, and does not, actually apply to can be less than an exact science.  For example, I’m confident that I’ve never violated RPC 8.4(c) by telling my kids when they were young that Santa Claus was real nor by bluffing in a friendly game of cards.  But figuring out where the lines are realistically drawn on other issues of dishonesty unrelated to anything the lawyer is doing in the practice of la involves a case-by-case analysis, but if there is an “official” component to the dishonesty, you can count on RPC 8.4(c) finding a way to apply.

A Maryland lawyer learned earlier this month that the price of having been dishonest about something unrelated to his law license was disbarment.  The lawyer in question established an LLC called Carefree Construction Services within a few months after becoming a lawyer and then performed home improvement work through the LLC.  The lawyer, however, was not properly licensed in Maryland as a home improvement contractor and was actually using his brother’s license to do the work without his brother’s permission.

In its opinion, the Maryland court, citing another 2014 decision, expressly addressed the fact that the dishonest conduct had nothing to do with practicing law was of no consequence and that the conduct did violate RPC 8.4(c).  The court also explained that since the conduct involved a misdemeanor (performing the home improvement work without a license) that it considered the lawyer to have committed the kind of criminal conduct that violated RPC 8.4(b) as well.

The opinion also went to some length to explain that, in its totality, the lawyer’s conduct amounted to a violation of RPC 8.4(d) – conduct prejudicial to the administration of justice — and that determination also played a role in ramping up the discipline meted out.  The lawyer had filed a number of lawsuits for non-payment against home improvement customers who had learned of his unlicensed status and, as to one such set of customers, threatening them by email and “attempt[ing] to leverage his position as an attorney to intimidate” the customers into paying him more money.  One example quoted in part in the opinion, involves the lawyer, in an email exchange, with the dissatisfied and fully-informed customer, writing:  “Are you forgetting, I AM A CONSTRUCTION ATTORNEY.  There is nothing about construction law that you can learn on the internet that I am not an expert on.”

Don’t be an ass.

Quite a few years ago now, I did a seminar titled something like “The Golden Rule of Litigation” or “Litigation and the Golden Rule.”  One of the fun aspects of putting it together was finding confirmation that some version of The Golden Rule – the “do unto others as you would have them do unto you concept” – is espoused in some form or fashion by every world religion I could dig up.  The goal of the seminar was trying to drive home the point that if you applied some variation of that concept to litigation to construct such a rule, it would be along the lines of “Litigate against others as you would have them litigate against you.”  And, my overriding point was that if we all managed to adhere to that tenet, lawyers wouldn’t have to spend much of their time worrying if their conduct violated the rules of ethics, at least in the litigation context.

The title of today’s post is a more negative (and certainly crasser) variation on that message, but one that readily applies to all aspects of the practice of law, whether litigation, transactions, negotiations, etc.

Don’t.  Be.  An.  Ass.

Two gentlemen in the news this week have pretty egregiously violated this rule.  The result is that one of them is losing his law license permanently and the other one looks like he is never going to be issued one in the first place.

A Florida lawyer who was showcased in my 2013 Ethics Roadshow when he received a two-year suspension for what the Florida Supreme Court called “appalling and unprofessional behavior” is now back in the news.  He is getting disbarred after not complying with Florida’s rules regarding the giving of notice to clients and others once you have been suspended and for continuing to practice law after being suspended   An ABA Journal story back at the time of his suspension highlighted many of the troubling ways this lawyer would disparage his opposing counsel (and even the court), but the part that was most offensive about the whole thing was that the primary target of his wrath (or at least the primary target in proceedings that actually got adjudicated in the disciplinary process)was a 71-year old lawyer who had a long, unblemished career and who, at the time he was on the other end of the Florida lawyers vituperative rhetoric was suffering from both Parkinson’s and kidney cancer.  The now-disbarred lawyer tried to take his two-year suspension to the U.S. Supreme Court to get it reversed, but the Court denied his cert petition in October 2014.  Yesterday, the Florida Supreme Court entered an order permanently disbarring him that also makes mention of the fact that this lawyer continued, even in those proceedings, to undertake the kind of conduct for which he was disciplined before, including referring to bar counsel as evil and despicable and engaging in a smirk and stare down session with each of the justices of the Florida Supreme Court.

Another character has made it onto the radar screen for having his application to be admitted to practice law after passing the bar exam in Massachusetts denied on character and fitness grounds three days ago.  I saw the first news story about this and was prepared to be on the side of the applicant given the headline’s reference to past litigation conduct and my own experience with seeing that bar admission authorities can often manage to hold applicants to what seems like a higher standard than the standards to which already licensed attorneys are held.  But, on closer read of both the article (particularly the email that the guy thought it made sense to send the ABA Journal about his situation), and the Massachusetts opinion itself, this looks very much like an example of Massachusetts managing to avoid giving a license to someone in the first place who probably would have ended up practicing law like the Florida lawyer mentioned above.

So, as you wrap up your office day today and head into your weekend, don’t be an ass.  I promise I’ll do my best to take my own advice.