Neither a stalker nor a burglar be.

Matters of the heart have caused people lots of problems throughout the course of human history.  Matters of the heart, when the heart is located inside the chest of a lawyer, work pretty much the same way.

Of course, sometimes stories that, on the surface, seem like matters of the heart might be more fairly characterized as being really about the inability of men to avoid controlling or toxic behavior directed toward the women in their lives (or who used to be in their lives).

This post is about a story of a Pennsylvania lawyer who is now suspended from practice over really bad judgment flowing either from a matter of the heart or from the more toxic issue of controlling behavior.  I don’t know the back story or the people involved in any way so I don’t know which, but I have my suspicions.  The story itself makes for an interesting post (maybe?) over and above just being an example of a lawyer behaving badly because it offers another reminder of how aspects of the ethics rules can apply to a lawyer even when they aren’t practicing law, and it taught me that I apparently do not know the full extent of what can constitute burglary.

If this blog is on your reading list, you likely already have read at least one article about this suspended lawyer (hopefully this one) — but in case you haven’t the suspension flowed from his secretly putting a GPS tracking device on the back of his ex-girlfriend’s car and hiding an audio recording gadget insider her car (under the driver’s seat to be more specific) in order to spy on her in hopes of finding out who she was now dating.

To some extent, being suspended for a year followed by four more years of probation is a secondary problem professionally for this particular lawyer because he also will be serving probation in the criminal system for five years as result of a guilty plea to two felonies: criminal trespass and to something of a violation of a criminal wiretapping statute in Pennsylvania for the same conduct.

Because of the felony convictions, it should certainly come as no surprise that the ethics violations with which he was tagged include a violation of Pennsylvania’s Rule 8.4(b) – conduct involving the commission of a crime reflecting dishonesty.

His suspension was also premised on a violation of Rule 8.4(c) which is simply the general provision prohibiting lawyers from engaging in any conduct involving dishonesty or fraud.  I’ve written in the past about the problematic potential scope of Rule 8.4(c)’s prohibition for lawyers given that it is not in any way actually textually moored to representation of a client or even to conduct related to the practice of law.

This probably would not be the kind of case where a lawyer would get much traction trying to argue that applying that rule to this kind of conduct would amount to overreaching.

As promised above, the other tidbit of note – more just educational for me – is the notion that, although he didn’t plead to the charge, he was also charged with burglary under Pennsylvania law for what he did to his ex-girlfriend.  That’s a new one for me given that while he may have broken into her vehicle, he didn’t actually take anything out of it but instead left something inside of it.

Turns out, under Pennsylvania law, burglary is defined to be entering any building or occupied structure with the intent to commit a crime inside.  So, this must mean that for the charge against him to have been colorable, his ex-girlfriend’s car was inside a garage at the time he put the recording device inside.

So, while there are many lessons to take from the situation described above, hopefully for most of you reading this the most practical one — the one that addresses the thing you are most likely to do that would be bad — is to remember that if you do not regularly practice a particular area of law you probably don’t know as much about it as you think you do.

(Also, though I know you don’t need this reminder, once your significant other moves on, you should too.  And, even if you can’t, don’t stalk them.  Seriously.)

Can’t stop, won’t stop. Now … full stop.

I’m really, truly not trying to fall into the habit of only managing one post a week.  As proof, here’s a post about a Tennessee lawyer who couldn’t/wouldn’t follow the rules.

It is a fascinating case study for at least two reasons.  One is that discipline for conflicts of interest is, all things considered, relatively rare and, yet, this lawyer’s failure to recognize and avoid a conflict of interest has now led to disbarment.  Second is that it really wasn’t the conflict of interest that got punished with disbarment it was the lawyer’s violation of another rule I’ve mentioned before: The First Rule of Holes.  “When you are in one, stop digging.”

When you violate that rule, you end up in a hole from which you cannot climb out.  That is the end of the story for Homer Cody.

Cody has now been disbarred by the Tennessee Supreme Court in an opinion released earlier this week.  How did he get there?  Well, here’s the short version: he took on a representation that created a conflict from day one and then, despite the imposition of escalating discipline, refused to comply with court orders saying that he had to withdraw from the representation and then kept representing the clients involved even while suspended.

The slightly longer version?  Well, here goes:

A lawsuit was filed all the way back in 2002 that sought judicial dissolution of a childcare entity and its executive director over alleged self-dealing transactions between the executive director and the entity.  In 2003, that executive director was indicted by a grand jury, and then pled guilty to, two counts of theft from the childcare entity.  Near the end of 2004, Cody entered an appearance in the civil lawsuit as an attorney representing both the childcare entity and its executive director.  Joint clients with an obvious conflict between their interests.  That case ended in a ruling that the executive director had failed in her fiduciary duties to the childcare entity and a judgment entered against her in favor of the receiver  – overseeing the entity now in dissolution – for almost $300,000.  Cody filed a notice of appeal from that ruling again as an attorney for both the entity and the executive director.  Who continued to be two clients with glaringly obvious conflicts between them.

In 2007, counsel for the receiver moved to disqualify Cody and, ultimately, in 2008, our state’s Court of Appeals, ruled that Cody was disqualified from representing either of the clients.  Cody, however, continued to undertake actions representing both clients, a contempt action was pursued, and another Court of Appeals ruling was issued emphasizing that Cody had a conflict and was to refrain from representing the entity or the executive director and sent its ruling to our Board of Professional Responsibility.  The BPR filed a petition for discipline in 2011 and that proceeding ended in a public censure being issued against Cody in March 2012.

Despite that fact, Cody (shovel in hand) continued to file pleadings in court as an attorney for both clients.  This resulted in a second disciplinary petition.  In response to that second disciplinary petition, Cody filed a RICO case in federal court, as attorney for the same two clients, claiming that pretty much everyone involved in the court proceedings against his clients were using the Tennessee judicial system “to steal, embezzle, defraud, and to carry out other illegal activities.”  The pending disciplinary case was amended to bring more charges over the representation in the new federal court case.  That disciplinary case resulted in the imposition of an 180-day suspension of Cody’s license in 2015.

I’m guessing at this point, Dear Reader, you can guess what happens next (if for no other reason than that I sort of told you a few paragraphs up in the short version).  During his 180-day suspension, Cody drafted appellate briefs for the same clients, after their RICO case had been dismissed, and had them sign and file them as if he was not involved.  That resulted in a new disciplinary proceeding and culminated in a new one-year suspension in 2016.  Thereafter, Cody prepared three more appellate briefs for those clients — including a petition for cert with the U.S. Supreme Court (!) during his one-year suspension and, in 2017, was hit with a new two-year suspension.  During the one-year suspension but before the two-year suspension began, Cody went back to the state level trial court where it all started and filed an “Open Refusal to Obey Judicial Orders,” along with one or two other filings (including a challenge to the receiver’s fees and expenses), and then, during the two-year suspension period, he filed a “Motion for Determination of Proper Venue.”

Those acts resulted in Cody being found in criminal contempt and actually sentenced to 30 days in jail earlier this year.  Those acts also brought about yet another disciplinary proceeding against him, which he defended by denying the legitimacy of the orders of the Court suspending him, and that resulted in August 2018 in an order disbarring him from the practice of law.

All in all, his saga is a remarkable story that demonstrates at least three things:

(1) you can dig a pretty deep hole over the course of 14 years;

(2) there has to have been something else going on to explain the public meltdown that this lawyer managed to have after apparently practicing for more than 25 years without receiving any public discipline; and

(3) the BPR can truly be dedicated to the concept of incremental discipline when it wants to be as it is almost as hard to believe that Cody was given 180, 1-year, and then 2-year suspensions in these circumstances before ever being disbarred as it is to believe that he kept going out and getting new shovels.

Traps for the Unwary – Married lawyers edition.

Within the last week, there was an interesting Law.com article (subscription required) on a topic that has been something of a pet . . . well not really “peeve” of mine, and not really a pet project of mine, but a topic that I feel like is somewhat uniquely overlooked by the people to whom it should be most relevant — spouses/significant others who are both lawyers but who work different places.

The article discusses an Ohio disciplinary case that is ongoing and that involves something that – based on anecdotal evidence over the course of my career — is an extremely frequent occurrence:  the sharing of information about cases and matters between spouses and significant others who both are lawyers but who aren’t both representing the client in question.

Although (as indicated above – unless you are particularly wily about how you use the Internet and various search engines ability to “cache” content — you need a subscription to read the article, here’s a snippet to give you a flavor of the fact pattern involved.

The Ohio high court is set to review a proposed disciplinary sanction against two education law attorneys, ThomasHolmes and Ashleigh Kerr, who are engaged to one another and admitted to exchanging emails that included work product and confidential client information.

Although Holmes and Kerr focus on similar types of law—namely the representation of public school districts—they have never shared clients and they worked at different firm. Holmes practiced most recently at [a firm] in …Ohio, and Kerr practiced at [a different firm] in … Ohio.

In a disciplinary complaint lodged in December against the couple, the Ohio Supreme Court’s board of professional conduct said the two have lived together since October 2015 and became engaged in November of that year. From January 2015 to November 2016, the disciplinary complaint alleged, the two exchanged information related to their client representations on more than a dozen occasions.

“Generally,” the board alleged, “Kerr forwarded Holmes an email exchange with her client in which her client requested a legal document (i.e. a contract, waiver or opinion). In response, Holmes forwarded Kerr an email exchange with his client which attached a similar legal document that he had drafted for his client. More often than not, Holmes ultimately completed Kerr’s work relative to her particular client.”

If you want more of the detail, you can access the disciplinary complaint here.  And you can go read the pending recommendation of the Ohio board as to the discipline — which has been agreed to by each of the lawyers here.

The proposed, agreed discipline is a six-month suspension from the practice of law for each lawyer (but with the suspension fully stayed/probated.)

I suspect the outcome of that matter – and perhaps even the fact of disciplinary proceedings at all — will come as a huge surprise to many lawyers.  But the simple fact is that the underlying practice — sharing information about cases in order to try to get your spouse or significant other to help you — despite how much it may seem consistent with human nature is almost always going to be undeniably a violation of the ethics rules.  It is possible that one of the lawyers could get the client to consent to the arrangement, but beyond that approach there are very few ways to avoid the simple fact that RPC 1.6 in almost any jurisdiction won’t permit doing this.

I also strongly believe that most lawyers who do this kind of thing — if they think about it from an ethics standpoint – believe that the risk is quite low of ever being found out because of the marital privilege.  But not only because of some of the inherent limits on how far that may take you, but also because of the increasing frequency in which we all do everything digitally… this case demonstrates that there are a number of ways that the communications can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.

Far too often anger begets violence both by, and against, lawyers.

I failed again as a blogger last week and do not have anything resembling a good excuse.  There is a lot going on in the world that is troubling and last week was simply a week where it felt like writing anything that was not about how our country has become okay with putting children in cages seemed frivolous.  That topic was not one that had any legal ethics component, however, so …

I’m still very angry about what my government is doing, but beyond the 50 or so words that precede this one, I’m not writing about that today.

There are two short stories sitting in my idea pile that have anger as their common thread so I’m threading them together today to simply talk about how easily anger can get the better of people if not channeled to something productive.  One story involves a lawyer being properly disciplined for failing to manage his own anger.  The other involves a tragic end of life for a lawyer who was slain by someone else who let anger take over.

A lawyer in Maryland, who already had a track record of disciplinary problems, now finds himself suspended from the practice of law for 30 days as a result of engaging in “road rage.”  Dana Paul’s suspension, premised upon violations of RPC 8.4(a), (b) and (d) is not only yet another in a long list of incidents where angry lawyers do inexcusable things but also a reminder that RPC 8.4 is the kind of disciplinary rule that applies to lawyers even when they aren’t engaged in the practice of law.

The Maryland opinion describes the three different versions (Paul’s, the other driver’s, and a third-party witness to some of the incidents) of the events presented in evidence in the case which involved sustained interactions between Paul and another driver spanning over two counties in Maryland.  Paul’s own testimony minimized his conduct but he ultimately did plead guilty to two counts – negligent driving and failure to return to/remain at the scene of an accident.  Paul claimed that things started when the other car slowed down in front of him and he observed the driver of the other car on her cell phone.  Paul says he passed her and beeped at her – claiming that he always beeps at people on their phones “as a way of telling drivers to not use their phones while operating a vehicle.”  Paul then claimed that the vehicle passed him and cut him off and then would intentionally slam on her brakes.  Then at a red light, Paul left his vehicle to question the driver.

The other driver testified to a different version of events at Paul’s criminal trial.  A third-party witness who saw both the altercation at the traffic light and the moment when Paul’s car and the other car impacted each other offered testimony that the court found persuasive:

At the traffic light, [witness] asserted that Paul exited his vehicle, displayed both of his middle fingers towards [other driver,] and reentered his vehicle and drove of.  Approximately eight miles later, [witness] was driving in the right lane while [other drive] drove next to [witness] in the left lane.  [Witness] witnessed Paul’s car drive in between [witness] and [other driver’s] cars, causing [witness] to move to the right shoulder.  [Witness] attempted to alert Paul that he could drive in front of her in order to avoid injury to any party  Thereafter, [witness] observed Paul’s vehicle make contact with [other driver’s] vehicle.  After the cars hit, [witness] stated that Paul moved behind [other driver] and took a picture of [other driver’s] license plate.  Once [other driver] then pulled off onto the shoulder, [witness] did the same and gave [other driver] her name and address.  [Witness] later drove to Easton at the request of the police to identify Paul as the person who struck [other driver’s] vehicle.

Paul’s conduct on the road did himself no favors, but Paul’s own statements to law enforcement were damaging as well as he was confronted by a state trooper after he had stopped at a restaurant to use the restroom and asked what had happened to his vehicle.  After Paul said nothing happened, and after the state trooper pointed to paint on the side of Paul’s car, Paul then denied the allegation that he had hit the other driver’s car.

Ultimately, the Maryland court concluded that it had been proven by clear and convincing evidence that Paul’s “road rage” conduct was both criminal and of a nature that reflected adversely on his “fitness as an attorney” to be a violation of RPC 8.4(b) and also that because his conduct “involved dangerous, harmful, and threatening behavior stretching across two counties,” it was sufficiently prejudicial to the administration of justice to be a violation of RPC 8.4(d).

Of course, lawyers can be victims of unhealthy anger as well.  Last week the ABA Journal online posted a story of a Georgia lawyer (just three years younger than I am) who was found dead in his law office after having apparently been gunned down by the husband of one of the Georgia lawyer’s divorce clients.  The husband was also found dead in his former wife’s bed from an apparently self-inflicted gun shot.  The police knew to go to the law office only after the husband had called his former wife and confessed to killing her lawyer.  Although I was just a baby lawyer when it happened, I remember well when something not too different than this happened in Memphis back in 2002 when Robert Friedman was ambushed in his parking garage by the husband of one of Friedman’s divorce clients.

It is a difficult time to begrudge anyone the right to be angry, and you can count me on the side of those who don’t take kindly in the political arena to slavish calls for “civility” that really only amount to trying to prevent relatively powerless people from sending a message to powerful people, but if you are reading this and you get violent when you get angry, seek out ways to learn how to manage your anger.

That escalated … but not all that quickly.

You’ve likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his “cumulative and escalating misconduct,” so I don’t know that I have anything truly unique to offer about the situation.

But because I so clearly remember talking about the first event in his series of bad behavior in seminars I did about 8 years ago, I feel compelled to write about his disbarment.

Back in 2010, an opinion came out that suspended Robert Ratiner for 60 days over an incident involving a highly aggressive and inappropriate reaction to another lawyer putting a sticker onto his laptop during a deposition.

That case garnered some substantial legal media attention because the Florida Supreme Court described Ratiner’s conduct as something that ought to be viewed in professionalism courses to teach lawyers how not to behave.  In that incident which happened in 2007, Ratiner responded to the other lawyer’s placement of the exhibit sticker by first trying to physically run around the table to where the lawyer was and then, instead, forcefully leaned over the table, angrily yelled at the other lawyer, and through the wadded up sticker at him.

Between that incident and the latest, Ratiner received a three-year suspension in 2015 flowing from more litigation behavior evidencing problems both with inter-personal skills and with recognizing and respecting physical boundaries.  In that case, Ratiner first called opposing counsel a “dominatrix” during a document review session and, on the following day, tried to grab a document away from her which prompted the involvement of a security guard.  That event happened in October 2009.

The February 2018 order of disbarment (which you can read here), unlike the prior two incidents, involved conduct inside the courtroom.  Ratiner was accused of loudly kicking the table of other counsel during a hearing, saying “lie, lie, lie” during the cross-examination of one of his law partners, and wrinkling and throwing documents in court.

The ethics rule Ratiner ran afoul of is Florida’s slight variation on the traditional Model Rule 8.4(d) about not engaging in conduct prejudicial to the administration of justice.  That rule in Florida reads:  “A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers.”

Perhaps remarkably, the initial proposed discipline for this event was another 3 year suspension rather than disbarment.  The Florida Supreme Court decided, however, that disbarment was required.

As the Florida Supreme Court explained:

Ratiner has denied the existence of such objectionable, disrespectful conduct over the years, even in the face of videotaped evidence and witness testimony. His argument or belief that said conduct constitutes the zealous representation of his clients is completely unacceptable.

[snip]

In cases where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.

[snip]

Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Other than what is set out in the various opinions, I do not know anything more about this lawyer’s situation.  Although none of the opinions include anything to clearly signal underlying, treatable problems plaguing this lawyer,  this certainly feels like a sad story that has issues of lawyer wellness at its heart.

It also involved a pattern of conduct spread out over a fairly long time (though not as long as it feels at first when you have 10 years elapsing between the sticker-throwing incident that prompted the first, short suspension and the disbarment) when you think about it in terms of “escalation.” Ratiner practiced law for 28 years before being disbarred.  Almost 4 years passed between the deposition sticker row and the table-kicking courtroom incident.

Nevertheless, it’s as good a reason as any to remind people in our profession to add this report from the National Task Force on Lawyer Well Being to your reading pile and to actually read it.  Particularly, when news in the world of lawyering brings developments like this shooting — a situation which I would say truly involves quick and very scary escalation — and the notion that this odious lawyer is out there representing our profession to the public.

Preparing for disbarment.

The panel I was fortunate enough to participate in at the meeting of the Association of Professional Responsibility Lawyers in Vancover earlier this month has received a very good write up appearing in a Bloomberg Law publication.  You can go read it here.  We talked about a number of things other than the looming GDPR deadline, but that is what is the focus of the article.  (I do promise to write more about GDPR issues before that May 2018 deadline rolls around, but not today.)

One of the very good panel presentations I had the chance to observe at the APRL mid-year meeting involved representing lawyers in disbarment cases and how difficult it can be to manage your client when you know what’s coming – they are going to be disbarred – but they do not yet realize that’s the future (or they are still struggling mightily to convince themselves it will play out differently.)  There are certainly lawyers who deserve to be disbarred, but even those lawyers, if they’ve hired a lawyer for their matter, deserve the best advice and guidance their own lawyer can provide them about their situation.  It was a very good panel discussion and offered some good insight about the kind of skill sets lawyers who handle such matters need to possess.

Last week was a pretty big week in Tennessee for removing lawyers from the rolls as the Tennessee Supreme Court issued two opinions disbarring two lawyers in largely different scenarios.  The two prominent things they have in common are: (1) as with lots of disbarment scenarios there were conversions of client funds from trust in the mix of problematic conduct; and (2) they both involved what should have been viewed as quite obviously doomed arguments to try to have an order of disbarment be made retroactive to a much earlier date.

One of the things that lawyers representing lawyers ought to recognize – and that was at least something of an implicit theme in parts of the panel discussion – is that, sometimes, the best representation you can provide involves helping your client get disbarred as quickly as possible.  In jurisdicitons where disbarment is permanent, that isn’t necessarily true at all.  But, in jurisdictions like Tennessee, where a lawyer can apply for reinstatement even after being disbarred, but cannot do so until at least five years has passed, getting to disbarment quickly can be incredibly important.  (And, to be clear, I have no insight into the handling of this particular case.  The lawyer for the lawyer might have been trying to do everything possible in that regard and might have even made it perfectly clear to the lawyer client that the price of continued appeal was that the disbarment clock was not going to start for many years.)

One of the two opinions – likely quite rightly – describes the conduct of that lawyer as seeming to be “more bungling than nefarious” so this post will focus instead on the case that pretty clearly drips with nefariousness.  You can, of course, go read the full opinion here, but here’s a very quick and dirty, bullet point version of the wrongdoing:

  • The lawyer convinced someone to give him more than $5 million for a financial venture, promised the funds would be held in escrow and not moved without the person’s permission, and promised payouts to the person from the venture to begin within 30 days.
  • The lawyer did not keep the funds in the manner promised, made no payouts, only returned $1 million of the deposited funds, never provided an accounting to the person of what happened to the money, pulled those funds out for a variety of purposes, and then falsified accounting records filed with a court to show the money was still in trust when it wasn’t.
  • The lawyer defied a court order requiring transfer of whatever funds were still in the trust account to the Clerk of Court for holding and instead directed the bank to transfer those funds to a bank account of an employee of his law firm.
  • At around the same time, the lawyer took a $1,500 retainer from a client. wrote one letter, and then stopped communicating with the client, and didn’t refund the money.
  • A year before those situations, the lawyer separately got a payment of $5,000 from a client, did very little work, and then stopped communicating with the client altogether and ignored counsel for the opposing party, and did not refund the client’s money.
  • Later, after a temporary suspension had been entered and while on disability inactive status (NB: the only apparent claimed defense for any of the above hinged on a claim to have suffered a head injury in an attack involving being hit on the head with a metal pipe.), the lawyer worked as an assistant for another attorney (NB: back at a time when in TN we did not have the “can’t sweep the floor” rule I wrote about here.) and scammed $10,000 out of one of that attorney’s clients based on false statements that the attorney wanted the payments.

I mean, if you have a decent amount of experience with the disciplinary system, you know the end of this story once you’ve gotten up to speed with the facts:  That’s the tale of a lawyer who will be disbarred.

It’s also the tale of a lawyer who will have a very, very hard time ever being able to be reinstated to the practice of law in the future and whose best hope of reinstatement ever coming to fruition likely turns as much on what they do during the disbarment proceedings as what they do to rehabilitate themselves and become a different person over the following five years.

This is also the story of a lawyer who needed someone to remind him that there are things you can do on hills besides die on them.

If that kind of reminder was given in the form of legal advice, it certainly wasn’t followed.  Instead, a really big hill was located.

The primary argument pursued on the appeal of the case to the Tennessee Supreme Court was that the date of disbarment should have been made retroactive back some 6 to 7 years earlier.  Setting aside just the pure legal flaws associated with trying to argue that the concept of disbarment (rather than suspension) can be made retroactive to a period of ongoing temporary suspension, the act of pushing this argument in this case required someone to stand in front of the Court and ask it to enter an order of disbarment for the above conduct but agree that the lawyer could immediately turn around and apply for reinstatement.

Hope may spring eternal and all that, but that’s such an obviously untenable position that I would have hoped no lawyer would build an entire appeal around it.

In the end, as indicated above, this is the story of a lawyer that likely has no realistic chance at ever being reinstated, but, by persisting on appeal long after the ghost should have been given up (and while having been sidelined from practice for the last 7+ years), any effort at reinstatement cannot be pursued until 2023.

 

 

Idaho why lawyers are so often tripped up on this.

I’m writing from Boise where tomorrow I’m delighted to have the chance to speak on legal ethics for the Idaho Prosecuting Attorneys Association.  (I’m also delighted that the weather is unseasonably warm at the moment.)  Last year I had the chance to do a similar presentation for the Tennessee District Attorneys General Conference.  Prosecuting attorneys throughout the country are finding themselves more frequently in the cross-hairs of disciplinary proceedings.

But today’s post isn’t really about that, but it does help explain the selection process.  As I find myself drawn to write about a recent instance of discipline imposed on a private attorney in Idaho that involves behavior that I’ve counseled lawyers about so I know it happens to be relevant beyond just the Idaho Bar.

The case involves the issuance of a suspension order against Attorney Beckett issued at the end of January 2018, but for which the 28-day active suspension period will run during the month of February.  You can read the press release put out by Idaho State Bar Counsel here.

The underlying case was a personal injury lawsuit, and Beckett was able to get the case successfully settled for his client.  His client, though, wanted immediate access to parts of what would be forthcoming from the settlement.  Perhaps simply motivated by an effort to be accommodating, or more likely because of a failure to properly communicate with the client and manage expectations regarding how long such things take, Beckett agreed to provide two advances of the forthcoming settlement funds to the client out of his own money and from money belonging to a separate company Beckett owned.

As the press release explains, he didn’t do that in a way that was at all proper because she didn’t manage to keep the funds properly segregated to avoid commingling them with money in other accounts and also didn’t communicate to the client the available alternatives.  Despite the fact that, as the press release makes clear, Beckett didn’t charge any interest or fees for the transaction and that no other clients were harmed in any way, the conduct violated Rule 1.15 and 1.4 of the Idaho Rules and merited a 60-day suspension, with 28 days of active suspension, and a six-month probationary period.

What is interesting is that the press release makes no mention of Rule 1.8(a) governing business transactions with clients.  When I have had to counsel lawyers about inquiries from clients along these lines, that is the Rule most pertinent to the discussion for a path to actually doing what the client wants if the lawyer is insistent on providing an accommodation.

Idaho, like Tennessee, has a Rule 1.8(a) patterned after the ABA Model Rule.  Tennessee’s, for example, provides that a business transaction with a client – which is what a loan like what Beckett did would be — cannot happen unless

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Now, working through that rule is not 100% of the battle altogether, because the risk still exists that a bar counsel would argue that other provisions in the same rule, RPC 1.8(e) and (i) in Tennessee for example, would still work to prohibit such a business transaction altogether if the case has been settled but no order of dismissal ending the litigation has been entered.

Those provisions provide:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

and

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

RPC 1.8(i) has always struck me as a prohibition that can be drafted around in the transaction documents to sever any connection between the litigation and the loan, but (e) is trickier if the litigation, despite being settled is technically still “pending” at the time of the client’s inquiry.

Husband can’t control his wife, gets disciplined.

Sometimes titles for posts are tough to come up with, sometimes they are far too easy.  This is one of the latter and is offered both with a spirit of tongue-in-cheek silliness and because it is a truly perfect seven-word summary of a recent disciplinary case of note.

It is, of note, at least for discussion purposes, because it appears to be: (1) the right outcome; and (2) a quintessential example of the harm that my state, Tennessee, seeks to prevent through the existence of a very specific, black-letter rule.  Despite that, I’d still like to explain why I happen to think that the Tennessee rule, in particular, is still too harsh and the wrong public policy approach.

The case comes out of Illinois and involves a public censure handed down earlier this month.  The ABA Journal online wrote an article about it a couple of days ago but here’s the pithier description of events published by the Illinois disciplinary authorities:

Mr. Niew, who was licensed in 1972, was censured. His wife, Kathleen Niew, an Illinois lawyer, was disbarred in 2013 for misappropriating $2.34 million belonging to a client who she represented in a real estate matter. After her disbarment, Mr. Niew failed to ensure that his wife no longer maintained a presence in their law office and he also failed to supervise his associate, to prevent that associate from aiding Ms. Niew in the unauthorized practice of law.

The ABA Journal piece points out a bit more detail, explaining that the wife was disbarred in November 2013 but kept coming into the law offfice she had shared with her husband multiple days a week until June 2014.  You can get the highly unfortunate details of the wife’s wrongdoing at the ABA Journal piece.  (Spoiler:  financial wrongdoing.)

The reason that the husband’s role in the wife continuing to come into the office was, itself, a disciplinary problem is that Illinois has a Supreme Court Rule, Rule 764b, that bars a lawyer who has been disbarred or suspended from the practice of law for at least six months from maintaining a presence in any office where law is practiced.  That Illinois rule also imposes a direct duty on other lawyers affiliated with the disbarred or suspended lawyer to stake steps to insure that the rule is complied with.

This kind of rule, which we also have in our ethics rules in Tennessee, is one that I and other Tennessee lawyers have described to people as a rule that means, if you’ve been disbarred or suspended, you can’t even push a broom in a law office as a way of trying to make a living.

In Tennessee, over the objections of the Tennessee Bar Association, our Supreme Court put such a prohibition housed in our rules as RPC 5.5(h).  It acts similarly to the Illinois rule by completely barring involvement in anything surrounding the practice of law for disbarred or suspended lawyers, but it is solely focused on the other lawyers involved and is actually even more harsh than the Illinois rule in two respects.

The Tennessee rule reads:

(h) A lawyer or law firm shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney, legal consultant, law clerk, paralegel or in any other position of a quasi legal nature.

It is harsher than its Illinois counterpart, first, because it applies (on its face) with respect to a lawyer suspended for any period of time not just for six months or more.  Arguably even where a lawyer has been suspended for only 30 days or, possibly, even when they are subject to merely an administrative suspension.  Second, it is harsher because it is not just limited to a prohibition on being physically present in a law office but applies to any employment of such a person by a lawyer or law firm.

In Illinois, for example, the public policy objections I have to such a harsh rule might be less pointed beccause the ability to work from home or otherwise remotely be employed to perform certain tasks could be a saving grace against the otherwise absolute barrier to opportunities for lawyer rehabilitation.  But not so in Tennessee.

While the Niew Illinois case that has gotten some attention certainly appears to demonstrate the right outcome for its circumstances, I still think rules like Tennessee’s are far too harsh.  Problems posed by the classic scenarios that such rules seek to prohibit can otherwise be addressed through provisions in RPC 5.5 that make it unethical for a lawyer to assist someone else in the unauthorized practice of law.

It seems that there ought to be exceptions to such an absolute prohibition; exceptions that it would be hard for reasonable people to argue against.  One could readily construct a hypothetical involving a lawyer who gets herself suspended because of problems associated with the handling of client funds or other deficiencies in their ability to handle the business aspects of the practice of law, but who might be an incredibly gifted researcher and writer.  Seems unduly harsh to foreclose that person’s ability to continue to contribute and benefit clients of other lawyers through performing such work for other lawyers with no access to client funds or even to the clients in question while rehabilitating themselves on their deficiencies.

At present, there simply is not.  The only potential route to rehabilitiation that could be available in Tennessee, apropos if for no other reason than our being called “the Volunteer state,” is that it does look like a disbarred or suspended lawyer could take on such assignments for free.

Friday follow up – TIKD off by a DQ motion and the Supremes won’t stop suspending the wrong lawyers.

In the middle of Roadshowing (short break until the next stops next week) and also still trying to handle client matters to boot, so this will be a quick post.

(If you are here next week looking for the Roadshow playlist, just keep scrolling down as it can be found in the post immediately below this one.)

The dustup between the smartphone app known as TIKD and the Florida Bar has been back in the news in the legal trades recently over a motion to disqualify TIKD’s counsel filed by the Florida Bar.

On its face, it sounds like a pretty decent disqualification motion on the merits as the Florida Bar is alleging that TIKD’s counsel who is a former Florida Bar president had access during his term in office to internal information evaluating the Florida Bar’s antitrust liability exposure given its structure in the wake of the U.S. Supreme Court’s ruling in an antitrust suit against the board that regulates dentistry in North Carolina.  (You might recall that I wrote a bit about that in the past as well as it is that case that has revived interest in, and concerns about, antitrust issues for the regulation of the practice of law in unified bar/mandatory bar jurisdictions.)  That would seem like a slam-dunk in terms of disqualification if that person had been a former General Counsel or otherwise a lawyer for the Florida Bar, but the analysis may be a lot murkier if, as is the case generally of bar presidents, that the president of the Florida Bar is always a lawyer but isn’t necessarily acting as a lawyer for the organization during the term of office.

Oh, and speaking of the U.S. Supreme Court, I wrote a bit earlier this year (as many other people did) about the weirdness associated with the fact that the United States Supreme Court made the very unfortunate mistake of suspending the wrong attorney – confusing one lawyer named Christopher P. Sullivan for another lawyer named Christopher P. Sullivan.  At the time, I tried to make discussing the circumstances a bit more worthwhile substantively and not just anact of piling-on by citing that epic mistake by the highest court in the land as maybe the ultimate example of the need for people in our profession to be deliberate in their actions and take their time because what we do can have real consequences for us and for others.

As is of course true for literally billions of other people on the planet, the Clerk of the U.S. Supreme Court is not a dedicated reader of this space (or didn’t take heed of that message) as a new story came to light a week or so ago of pretty much the same thing happening again with the Court suspending a lawyer named Jim Robbins instead of a lawyer named James A. Robbins.  (Even more coincidentally, the Sullivan who was wrongly suspended earlier in 2017 practiced law with a firm called Robins Kaplan.)

Actually, to say that pretty much the same thing happened isn’t quite right, as the James A. Robbins that deserved to be suspended wasn’t actually a member of the U.S. Supreme Court bar at all.

I’ve been fortunate enough to have been admitted to the U.S. Supreme Court since December 2008 and even more fortunately it appears to be an admittee with a name, Brian S. Faughnan, that seems highly unlikely to be duplicated on (or off) its rolls.

Speaking again of rarer occurrences

Last week I dedicated a post to highlighting some topics of note that I hadn’t written about in a while.  This is another such post as the Tennessee Supreme Court has again taken action on its own initiative to increase discipline against an attorney beyond a result that both the accused attorney and the prosecuting entity had decided not to even appeal.  I previously wrote about such an occurrence back in April 2015.

Any time it happens it’s an interesting outcome because for lawyers in such proceedings, and the lawyers who represent them, the possibility always looms in the background when handling a matter but does not frequently occur.  As the opinion explains, Tenn. Sup. Ct. R. 9, § 15.4 imposes a duty on the Court even if no one has appealed to “review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case.”

This more recent instance has occurred to a Nashville criminal defense lawyer by the name of Paul Walwyn and you can read the full ruling here.

The nature of case against the lawyer reads in a pretty straightforward manner:

This case arose from Mr. Walwyn’s representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following
Mr. Gutierrez’s convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial,
which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez’s case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within
thirty days.  The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015.  The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See Tenn. R. App. P. 4(a).

The opinion reveals there were some factual wrinkles, including questions about how (in)frequent communication with the client was during the delay in noticing the appeal and that a TV interview the lawyer provided after trial meant he shouldn’t handle the appeal, but the primary focus of the disciplinary matter was on the 3 1/2 year delay in filing a notice of appeal.

Originally the hearing panel imposed a one-year suspension with all of the time served on probation rather than active suspension.  While that used to be an acceptable framework in Tennessee, the rules changed within the last few years and, now, if an attorney is to be suspended they must have an active period of suspension of no fewer than 30 days.  Because the hearing panel managed to overlook the rule changes, disciplinary counsel filed a motion to have the judgment altered to comply with the rules.  In response, the hearing panel altered the punishment not by imposing 30 days of active suspension but by reducing the punishment to a public censure along with certain conditions, including a practice monitor.  Thereafter, Mr. Walwyn (not surprisingly) did not appeal and neither did disciplinary counsel (surprisingly).

The Court exercised its Section 15.4 obligation to review, however, and indicated it would consider increasing the punishment.  After that point, the Board – which is allowed a second bite at the apple in such a situation – did begin to advocate to the Court that Mr. Walwyn should be suspended.  The Court agreed and imposed a 12-month suspension with 6 months of active suspension and 6 months on probation with a practice monitor as well as imposing some additional CLE requirements as the final sanction.

In the end, the driving force was the fact that the attorney had previously been disciplined several times for very similar conduct.

Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late
in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public
censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of
Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on
probation. See Walwyn v. Bd. of Prof’l Resp., 481 S.W.3d 151, 161-62, 171 (Tenn.2015). Mr. Walwyn was still completing this probation at the time of his disciplinary hearing in this case.

Loyal readers of this blog (or at least those with eidetic memories) will recall that December 2015 suspension of Mr. Walwyn as being the case in which his lawyer articulated the “rambling and bordering on incoherent” attack on the structure of the disciplinary system in Tennessee.  (That same lawyer represented Mr. Walwyn in this matter as well.)

Finally, having received a bit of feedback from a fellow ethics nerd as a comment on my post about my perceived delay in a California disciplinary case last week, I also want to mention that this case also shows some of my perspective as to timing.  A review of this latest Walwyn matter will show that the time between the filing of the formal petition for discipline and this ultimate outcome from the Tennessee Supreme Court, even with all of the added procedural hurdles involved, was just under 2 years.