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.

Death and disbarment

Returning to the office from the holiday weekend, I noticed these two sad and weird stories of lawyers doing inexcusable things that seem to have common threads of death and disbarment running through them.  Many years ago I wrote a humor column for young lawyers. and you can find some of those columns still floating around the interwebs, like here (starting at p. 12) and here (starting at p. 18).  This blog will not stray from its purpose and attempt to be a humor column.  I promise.  Bleak stories do require some willingness sometimes to attempt to find humor in making serious points.  This is one of those times.

The first story involves a variation on a circumstance that many of us have experienced (or at least strongly suspected we might have experienced but were too kind to ever try to investigate lest we be wrong and come out looking like a horrible human being):  the opposing counsel who claims an illness or death in the family in order to get out from under some missed deadline or hearing we suspect they just aren’t ready to handle.  This now-former attorney has resigned or been disbarred by consent from two states on the basis of having lied in two cases.  One case involved the lawyer lying about having been in the ER diagnosed with “double pneumonia” to get a hearing on a summary judgment motion rescheduled.  In the other case, the lawyer lied about his mother having died as an explanation offered to avoid sanctions based on missed discovery deadlines.  His own billing records showed in the one case that he billed his client for time spent preparing for the hearing on the day of his claimed ER trip.  As to the second matter, while I generally agree with Judge John Hodgman that specificity is the soul of narrative, this lawyer likely didn’t help himself with the specificity he used when lying about his mother, who was quite demonstrably still alive, saying she died “in a violent car accident in the state of Colorado” and that the cause of death was “the fire and smoke inhalation from the resulting conflagration.”

The second story involves a now-former DC lawyer who unsuccessfully argued that the death of his aggrieved client during the disciplinary proceedings should prevent the lawyer from being disbarred.  The key misconduct in the case was that the lawyer had, while on disability inactive status, taken $1,500 from a police officer for legal services never provided and then refused to return the money to the client.  During the many, many years of the proceedings, the lawyer tried to have the charges against him dismissed on five separate occasions.  Many of the arguments put more stress on the “criminal” part of the “quasi-criminal” nature of disciplinary proceedings rather than recognizing the importance of “quasi.”  The DC lawyer unsuccessfully argued that he had a constitutional right to a speedy trial which was violated by the lengthy proceedings; and that his being suspended during the proceedings mooted the case for disbarment.  Most brazen, however, was his argument that the death of the aggrieved client in January 2012 meant that the case against him should be dismissed.  For support of that argument, the lawyer relied on cases in which a criminal defendant died during the prosecution of the case against him.  These arguments were not wieners (a play on words that only makes sense if you’ve visited the link and learned the lawyer’s name) and the lawyer has been disbarred.