THE TROUBLE WITH JUDGES...PART 1

This will be a continuing piece about the issues we as a country and profession face with the increasing amount of money being poured into judicial races across the country.  

The amount of money being spent nationally on high-court candidates has more than doubled in the last ten years.  From 2000-2009, nearly $207 million was raised and spent on these elections, compared to $83 million from 1990-1999.  Illinois, which has had its fair share of "questionable" elections and candidates, was the fifth highest in the nation in regards to money spent on high court elections with special interest groups spending $20.6 million.  However, this is not too shocking when you compare this to Wisconsin, where nearly $15 million has been spent on high court elections since 2007.  

This raises a major problem for judges - in order to win elections, they must raise money from parties who may potentially appear before them in court.  This leads to the most depressing issue of all - 75% of Americans now believe campaign cash affects judges' decisions.  In a Republic such as ours, where judges are supposed to be an unbiased stalwart of truth, this statistic is most disturbing.  All of this is shocking given the U.S. Supreme Court's decision two years ago in Caperton v. Massey.  In Caperton, the U.S. Supreme Court ruled that a West Virginia justice should have recused himself from hearing a case involving a coal company whose CEO donated more than $3 million to help elect the justice.  This decision was a wake-up call for states to redefine and re-evaluate their rules for when a judge should recuse him or herself.  The hope was that this decision would lead states to make more clear and ethically sound rules for when a judge must recuse him or herself.  

However, this was not the case.  In Wisconsin, who was in the midst of a major judicial squabble (not based on judicial opinions, but on accused acts of violence between two Wisconsin Supreme Court justices), unfortunately, loosened and relaxed its judicial recusal standards.  It adopted language, ironically, written by a special interest group, which had spent millions of dollars on Wisconsin Supreme Court elections.  The new Wisconsin rules state that, by itself, a legal campaign contribution does not require recusal by a judge.  It doesn't matter apparently the appearance and inference of bias, which may violate due process.  

The ABA has urged states to update their recusal rules to help alleviate the appearance of bias and impropriety.  It also has called for independent reviews of recusal requests, which I believe is one of the best ideas yet.  Michigan has so far been the only state to adopt the ABA's guidance.  

More to come in the next few weeks.  However, we as a country and a legal profession, need to make sure that the people do not lose faith in the courts and the legal process.  Changes need to be made.  Since Citizen's United, the options may be fewer, but something needs to be done. 

AFFAIR WITH CLIENT - NEVER A GOOD IDEA!

A Tennessee lawyer has been suspended for one year due to his actions representing the woman he was having an affair with in her divorce proceedings.  Lance Parr failed to advise his client about the conflict of interest or obtain any type of waiver for the conflict.  He also tried to quash a subpoena for text messages between himself and the woman claiming attorney-client privilege, which did not apply in the situation.  Worse, Mr. Parr forged a client's signature to a document, notarized the signature and submitted the forged document to the court. 

It was stated that Mr. Parr's actions violated Tennessee Rules 1.7 (conflicts), 3.1 (meritorious claims), 3.3 (candor toward the tribunal) and 8.4 (misconduct).  In addition to his suspension, Mr. Parr must pay the costs of the disciplinary proceeding as well as be evaluated by the Tennessee Lawyers Assistance Program and any recommendations they offer before he can be reinstated. 

The opinion can be read here.

OVERBILLING LEADS TO SUSPENSION

Richard Lancianese's West Virginia license has been suspended for three years due to overbilling a client.  From 2000 to 2007, Lancianese, "knowingly submitted false [and] inflated bills" to BorgWarner, an automotive parts manufacturer, in asbestos-related defense case.  The amount Lancianese overbilled was totaled at $135,878.68. 

 

After discovering that Liancianese billed two of BorgWarner's insurance carriers for the same work, one of Lancianese's firm's partners began an internal investigation that uncovered additional erroneous billings.  After being notified of the overbilling, one of BorgWarner's corporate attorneys filed an ethical complaint against Lancianese. 

Coupled with the suspension, Lancianese must take an additional six hours of continuing education in law office management beyond the normal 12 hours required for reinstatement, as well as pay the cost of the disciplinary proceeding.

The opinion is West Virginia Supreme Court of Appeal Op. 11-0067.

RETIRED DETROIT PROSECUTOR IS DISBARRED

Retired Detroit prosecutor, Karen Plants, who had been suspended from the practice of law for two years, has now been disbarred.

Plants was accused of using knowingly false testimony from two police officers in order to hide the identity and role of one of their undercover informants in a drug bust.  Both Plants and Judge Waterstone allegedly knew of the falsity of the testimony yet still allowed the police officers to testify that the informant had no connection to the police.  Plants never corrected the testimony.  All of this came to light during the appeals process launched by the accused drug dealer when his attorneys came across a previously sealed transcript of a private conversation between Judge Waterstone and Plants, in which Plants informed the judge of the false testimony.  Judge Waterstone said that she would allow the false testimony in order to protect the informant's life. 

Plants plead guilty to misconduct in office and accepted a six-moth jail sentence.  Retired Judge Waterstone, was also charged with misconduct in office.  She has been reprimanded by the Michigan Judicial Tenure Commission. 

A hearing panel in April 2011 suspended Plants' license for two years.  The state's attorney Grievance Administrator, however, felt that punishment wasn't strong enough to deter this type of behavior.  The Grievance Administrator petitioned for review, arguing that disbarment was the appropriate sanction. 

In its 48-page decision, the Michigan Attorney Discipline Board stated that the legal system cannot tolerate lawyers like Plants who "intentionally procure of countenance false testimony, even for a purpose the lawyer may consider justifiable."  Plants' attorney declined to comment on the decision. 

Plants has two choices if she wishes to regain her law license.  Under Michigan rules, any disbarred attorney can apply for readmission after a five year waiting period, but has to be re-certified by character and fitness as well as retake the bar exam.  She also has the option of appealing the disbarment to the Michigan Supreme Court, but only with the court's permission. 

The Michigan Attorney Discipline Board's opinion can be found here.

NEW YORK BAR & NON-LAWYER OWNERSHIP OF FIRMS

The New York State Bar Association has ruled that lawyers who primarily practice in New York cannot be part of a foreign firm in which non-lawyers hold a stake, even if allowed where the firm is based.  This directly affects firms in areas such as the United Kingdom and Australia where non-lawyers can be owner-investors, and also the District of Columbia which allows non-lawyer employees to share in a firm's equity. 

The association's committee on professional ethics said that such an agreement would violate Rule 5.4 of the New York Rules of Professional Conduct, which bars attorneys from sharing fees with non-lawyers and practicing law for profit with entities that include non-lawyer owners or members.

The United Kingdom's Legal Services Act allows United Kingdom firms to take external ownership once they convert to an alternative business structure - something which is geared toward mainly consumer-focused law firms. 

Currently, the ABA ethics committee is considering whether restrictions on non-lawyer ownership/equity sharing should be eased. As of now, all 50 states prohibit non-lawyer ownership of firms. 

The New York Ethics Opinion can be read here.

PERSISTENCE PERSISTENCE PERSISTENCE

An interesting story from the New York Post and Reuters.  Neal Wiesner, a University of New York Law School graduate who passed the New York bar exam in 1994 and in his 50s, has finally been given the green light to practice in New York after being repeatedly denied his bar membership due to character and fitness issues relating to his criminal conduct, including attempted murder and a domestic incident, in the 1980s. 

Wiesner, who has previously been admitted in New Jersey and in federal court, was given the "ok" by the Supreme Court Appellate Division, First Department, where witness testimony played a significant factor in the decision.  The court stated in its opinion, "[c]rediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society—matters to which all witnesses have attested—as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement."

NEWS FROM THE "BAR" - 13 YEARS PRACTICING ON SUSPENDED LICENSE

David Walocha graduated from law school and passed the Nebraska bar in 1994.  However, two years later, he let his bar membership lapse by not paying his dues.  Two years later, he was back to practicing law.  There was only one problem though - he still hadn't paid his dues and was still suspended. 

Walocha, while working as a bartender would pick up cases from his customers as well as refer customers to other lawyers.  From 1998 to 2011, Walocha represented at least 60 people, tried felony cases and appeared before as many as 15 judges, none of whom thought anything was amiss or suspicious.  Even Walocha's wife, a real estate attorney, was apparently unaware of his practicing on a lapsed bar membership.

What finally got Walocha caught was having a client sentenced to jail.  When prison officials asked Walocha's now sentenced client, P. Vanderpool, to give his lawyer's name and phone number in order to prevent these calls from being monitored (due to lawyer-client privilege), they told Vanderpool that Walocha's name did not appear on the list of active attorneys.  Vanderpool then contacted his mother about the situation and she contacted the Nebraska State Bar Association to see what the problem was. 

On March 9, 2012, the Nebraska State Supreme Court disbarred Walocha, calling his behavior over the past 13 years "egregious and unacceptable.".  The court denied his plea for a reduced sanction, stating "[e]very pleading, every court appearance, every meeting with a client constituted a separate act of dishonesty." 

On a side note, Vanderpool is now appealing his conviction, claiming ineffective assistance of counsel.

To read the Nebraska Supreme Court statement, click here.

HOW TO GET DISBARRED - THREATEN WITNESSES!

The New York Appellate Division, First Department, granted the State's Disciplinary Committee's petition to disbar defense attorney Robert M. Simels.  Simels started as a prosecutor, but later became a defense attorney, had represented notorious clients, including drug kingpins and mob informant Henry Hill (On whom the movie Goodfellas was based off of).  Simels has "developed a reputation as a dogged advocate for his clients and a meticulously prepared trial lawyer.  He also found himself in much-publicized ethical scrapes and was barred from at least one courtroom by a judge" reported the New York Times. 

Simels was convicted on 12 out of 13 counts, which included conspiracy, bribery, obstruction of justice, and witness tampering, in 2009.  Arienne Irving, an associate in Simels' firm, was also convicted in the case, but U.S. District Judge Gleeson set aside the Irving's conviction.  Simels was convicted after being caught on tape stating that there was a need to "eliminate" or "neutralize" witnesses who were going to testify against his client who was a suspected drug kingpin.  He was sentenced to 14 years and fined $225,000.  A federal appeals court affirmed 10 of his 12 convictions. 

WATCH YOUR MOUTH! PSEUDONYM'S COMMENTS HURT (NOW FORMER) FEDERAL PROSECUTOR

New Orelans Federal Prosecutor Sal Perricone has admitted to making hundreds of posts under pseudonym Henry L. Mencken1951 and possibly three others on the website NOLA.com.  In these posts, Mencken1951 complained that U.S. Attorney Jim Letten was "great for taking credit for other people's hard work.  It is the assistants and agents who do the work and should be congratulated."  Mencken 1951 also claimed that a U.S. District Judge "loves killers."  He even called President Obama's Cabinet the "West Wing of Bolsheviks."

Perricone was discovered after a forensic linguistics expert, hired by a landfill owner who is the subject of a probe by U.S. Attorney's Office, examined the nearly 600 posts by Mencken1951 and a brief written by Perricone.  The expert tied Perricone and Mencken1951 together due to the use of alliteration and antiquated words, i.e., "dubiety" and "redoubt." 

U.S. Attorney Lim Letten has stated that Perricone has been removed from all matters on which he commented on at NOLA.com.  Perricone's actions have been referred to Justice Department's Office of Professional Responsibility.  Perricone has since resigned from the Department of Justice. He likely will be charged with breaching the DOJ Policy on disclosing non-public information without permission. 

Perricone, 60, was a federal prosecutor for nearly20 years.  Previously, he was an FBI agent, a New Orleans police officer and a Jefferson Parish sheriff's deputy. At the time of these comments, he held the post of senior litigation counsel, generally considered the No. 3 job in the office.

DAILY GROUP COUPONS: INDIANA BAR SAYS NO!

Indiana's State Bar Association's Legal Ethics Committee, in its Ethics Op. No. 1 of 2012, determined that using group coupons or daily deal marketing, such as "Groupon", would likely be unethical if used to market legal services.  The Ethics Committee stated that using such services likely violated a number of rules of professional conduct, namely Rule 2.1 (exercise of independent professional judgment and render candid advice), Rule 1.15 (Client Trust Account), Rule 1.16 (declining/terminating client representation), Rule 5.4 (prohibition of fee sharing with non lawyers), and Rule 7.2 (prohibition on paying for channeling professional work). 

Two of the strongest reasons Indiana advocated for not allowing these types of coupons was that the Committee was concerned about having a person "purchasing services," without ever meeting with the attorney in order to create a "course of conduct best fitting the client's situation."  The Committee emphatically stated that "the creation and establishment of an attorney-client relationship is the non-delegable duty of the lawyer."  The other issue was Rule 1.15, which requires attorneys to deposit into a client trust account any legal fees and expenses paid in advance, and to withdraw funds only as fees are earned.  Having advanced legal fees (which is what the coupon would be) being held by a party who is not the attorney, clearly violates this Rule. 

While Indiana was not the first state to tackle this issue, it was the first to state that using these daily deal coupons were likely unethical.  North Carolina, Missouri, South Carolina and New York all have issued ethics opinions allowing the use of daily deal coupons.  See North Carolina Ethics Op. 2011-10, South Carolina Ethics Op. 11-05, and New York State Ethics Op. 897,

The Indiana opinion is available here.