An Exasperated Judge is not Necessarily a Biased Judge

June 10, 2019 § Leave a comment

Sandra Oliver was a party in chancery court hearings involving probate of her grandmother’s estate and partition of her real property. The chancellor’s ruling on the merits were not to her liking, and she appealed pro se.

One of the issues she raised on appeal was that the chancellor should have recused herself because she was biased against her and her father. In Estate of Oliver: Oliver v. Oliver and Carney, decided April 16, 2019, the COA affirmed. The portion of Judge Carlton’s opinion addressing the issue is longer than I usually quote, but I think you will find it helpful:

¶103. Sandra asserts that her and her father’s due process rights were violated at hearings before Chancellor Daniels that took place in both the partition and estate matters due to the chancellor’s alleged bias against her. We find Sandra’s contentions without merit. ¶104. The supreme court has recognized that “[t]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. For a party to overcome the presumption, the party must produce evidence of a reasonable doubt about the validity of the presumption.” Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20) (Miss. 2016) (internal quotation marks and citations omitted). Continuing, the supreme court explained that “[r]easonable doubt may be found when there is a question of whether a reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s impartiality. Said another way, the presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id.; see Washington Mut. Fin. Grp. LLC v. Blackmon, 925 So. 2d 780, 785 (¶12) (Miss. 2004) (recognizing the “heavy burden” a movant bears in proving that a judge’s purported hostility requires recusal).

¶105. Sandra contends that the chancellor displayed “biased actions” in the partition action at the February 2, 2015 hearing on Sandra’s motion to controvert, the Carneys’ motion in limine to exclude testimony or evidence relating to any claim that Sandra may have due to the actions of J.C., and issues relevant to that motion raised in Sandra’s pro se motion to correct facts. Sandra was represented by counsel at that hearing. In her brief, Sandra refers to this hearing as a “non-hearing,” and contends that the chancellor showed bias because she did not allow presentation of evidence or testimony. We disagree.

¶106. At the beginning of the hearing, the chancellor observed that Sandra had “explain[ed] her whole case” in her pro se motion to correct facts. The chancellor then stated on the record that she had “read the entire [court] file and not just the motions that are noticed for hearing today . . . [and that she] under[stood] very thoroughly what the issues [were and] the issues that [Sandra tried] to raise . . . .” The chancellor then heard argument of counsel at length, and discussed numerous points of law with counsel. In our review of the hearing transcript, we find no indication that the chancellor displayed bias in any way at the February 2, 2015 hearing.

¶107. Regarding subsequent hearings before Chancellor Daniels, Sandra states in her brief that after the February 2, 2015 “non-hearing,” she “filed a formal complaint with the judicial committee against Judge Daniels based on all of the biased actions, reactions, denial of a hearing and presenting of any testimony as well as remarks made at the February 2nd, 2015 hearing.” Sandra’s judicial performance complaint against Chancellor Daniels was filed in June 2016, at least three months before the September 27, 2016 final partition hearing before Chancellor Daniels, and five months before the November 14, 2016 hearing in the estate action, also before Chancellor Daniels. On appeal, Sandra claims that her filing of the judicial performance complaint against Chancellor Daniels in June 2016 is a basis for requiring Chancellor Daniels’s recusal at these subsequent hearings.

¶108. As to this argument, we observe that Sandra did not object or file a motion in either the partition or estate action asking Chancellor Daniels to recuse. Sandra’s argument about Chancellor Daniels’s alleged bias was not raised until her appeal, which procedurally bars her from arguing the issue in this case. Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000). As the supreme court recognized in Tubwell:

Over the years, this Court has been quick to point out that it will not allow a party to take his chances with a judge about whom he knows of [alleged] grounds for recusal and then, after he loses, file his motion. Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived. Id.

As a result of her untimely objection, Sandra has waived this issue. See also Latham v. Latham, 261 So. 3d 1110, 1113 (¶¶9-11) (Miss. 2019) (holding that appellant waived recusal argument on appeal where he knew the ground for June 2016. In Adams, 249 So. 3d at 467-68 (¶¶15-21), Elle Adams made the same argument, asserting that the chancellor in that case should have recused herself because Elle had filed a state bar complaint and federal action against the chancellor. We rejected Elle’s argument,
finding that the chancellor’s awareness of the federal action against her, and the pending state bar complaint, did not require recusal where there was “no evidence that the chancellor’s impartiality might be reasonably questioned.” Id. at 468 (¶21). We find that the same analysis applies in this case.

¶111. Sandra quotes from the September 27, 2016 final partition hearing as an example of the chancellor’s “grudge” against her. But in this excerpt the chancellor, at most, is expressing frustration with the parties’ inability to reach an agreement on any detail, including what half of the property they wanted (“I was hoping y’all could at least agree on one thing, but obviously y’all cannot agree on whether the sun is shining outside or not.”). Our review of the transcript from the September 27, 2016 hearing shows no bias warranting recusal.

¶112. Similarly, Sandra quotes snippets of exchanges from the November 14, 2016 hearing in the estate case that she claims demonstrates the chancellor’s alleged animosity towards her. These include exchanges such as the chancellor telling Sandra that “[i]f you have a problem with my ruling, appeal it[;]” and the chancellor’s admonishment to Sandra to “be careful[,]” stated in the context of Sandra representing herself. These statements, particularly when read in context, are nowhere near the “combative, antagonistic, discourteous, and adversarial” conduct that would lead a reasonable person to conclude that Sandra did not receive a fair hearing. Cf. Schmidt v. Bermudez, 5 So. 3d 1064, 1074 (¶¶19-21) (Miss. 2009) (finding that a chancellor’s “abusive and inappropriate conduct,” including, but not limited to, repeatedly questioning a party’s honesty, badgering that party during cross-examination regarding evidence to be presented in her own case, and accusing the party of “diarrhea of
the mouth” violated party’s substantive right to a fair trial). Sandra also quotes an exchange in which the chancellor refused to let Sandra testify about ad valorem tax issues—but, as the chancellor explained in the next line of the transcript (not included in Sandra’s snippet), this was because Sandra was trying to raise issues already ruled upon at the final partition hearing. Nothing in that exchange suggests a lack of impartiality in any way.

¶113. In short, our review of the September 27, 2016 and November 14, 2016 hearing transcripts does not reveal any exchange between Sandra and the chancellor that suggests any hostility, lack of impartiality, or ill will on the chancellor’s part so as to result in a “manifest miscarriage of justice” in this case. We reject this assignment of error.

Some comments tomorrow.

Ins and Outs of Recusal

May 29, 2019 § Leave a comment

There comes a time in every lawyer’s life when you have no choice but to file a motion for the judge to recuse.

Most recusal situations are pretty clear, but not all are. It’s awkward at best to suggest that the judge should not be hearing your case, particularly where you are insinuating that ethical challenges may be involved. So you want to do it right if you’re going to do it at all. Here is some information that might help you get it right.

There are two categories of situations giving rise to consideration of recusal.

The first category consists of situations where the judge is per se disqualified and recusal is required unless waived by the parties. The bases for disqualification per se are set out in the Mississippi Constitution and the Mississippi Code.

The second category consists of situations in which grounds for disqualification per se are not present, but the judge’s impartiality might be questioned by a reasonable person knowing all of the pertinent facts. These are spelled out in Miss. Code of Judicial Conduct, Canon 3E.

Category One: Per Se Disqualification

Mississippi Constitution Article 6, § 165 states: “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.”

Mississippi Code Ann. § 9-1-11 sets forth the same bases for recusal as provided in the constitution and adds the ground that the judge was previously counsel in the same proceeding.

The key to category one is that the judge is actually disqualified from sitting in the case. Recusal is mandatory unless the parties and the judge agree otherwise, or, as some people put it, they agree to waive the disqualification.

Category Two: Discretionary Recusal

The second category of recusal matters is found in the Mississippi Code of Judicial Conduct in Canon 3. In contrast with the Constitution and statutory mandatory recusal, all of the Mississippi Code of Judicial Conduct bases for recusal are hortatory; the Code recites that the judge “should” recuse in the listed circumstances if they apply.

Canon 3E(1) states the general principle: “Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where … ” The provision continues with several specific categories of situations that may require recusal. This is the general principle behind all recusal motions. Note the word should above. Again, in these situations recusal is discretionary and is reviewed on appeal for abuse of discretion.

The specific situations spelled out to complete the above provision are:

3E(1)(a). The judge has a personal bias toward a party or has personal knowledge of disputed evidentiary facts.

The Mississippi Supreme Court has stated that, “In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself.” Bateman v. Gray, 963 So.2d 1284, 1291 (Miss. 2007). The burden, which is a heavy one, is on the movant to prove facts sufficient to establish disqualifying bias or prejudice.” Hodnett v. State, 787 So.2d 670 (Miss. Ct. App. 2001).

What about a bad outcome? Some clients thing the judge is prejudiced against them because of an adverse ruling. Our appellate courts have recognized that “[O]ne party’s irritation at the trial judge’s ruling against him is not grounds to force the judge to recuse himself.” Clay v. State, 829 So.2d 676, 687 (Miss. Ct. App. 2002). “Prior rulings by a judge in the proceeding will almost never be sufficient to justify recusal.” Campbell and Jackson, Commentary on Judicial Ethics in Mississippi, § 6: 9 (2010). The United States Supreme Court addressed the principle in the case of Liteky v. U.S., 510 U.S. 540, 555 (1994):

“ … opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings , or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”

In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.

3E(1)(a). The judge or a lawyer with whom she previously practiced served as a lawyer or is a witness in the matter in controversy, or .

3E(1)(b). A lawyer as attorney or witness in the case is a former law partner or associate and served in the case while the judge was with the firm.

3E(1)(c). The judge or a member of his household has a pecuniary interest.

3E(1)(d).  The judge or a member of his family is a party or is an officer, will be a witness.

You should read the Canons themselves for the exact language. A link to them is here.

There is a presumption that all judges sworn to administer impartial justice are qualified and unbiased. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1141-42 (Miss. 2002); Miss. Code Judicial Conduct Canon 3E commentary. The burden is on the party seeking recusal to file a motion detailing the factual basis relied on, and to create a reasonable doubt about the presumption of impartiality. Taylor v. State, 789 So.2d 787 (Miss. 2001); Copeland v. Copeland, 904 So.2d 1066, 1071 (Miss. 2004). There must be a reasonable basis to form a conclusion that there was a question of impartiality. Faerber v. Faerber, 13 So.3d 853, 865-66 (Miss. Ct. App. 2009). Mere speculation is not enough. Pearson v. Browning, 200 So.3d 1080, 1085 (Miss. Ct. App. 2016), citing Dillard’s, Inc. v. Scott, 908 So.2d 93, 98 (Miss. 2005) (quoting Code of Judicial Conduct, Canon 3(E)(1)).

Limited Scope Representation and Disclosure of Services

July 3, 2018 § Leave a comment

Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.

Since limited-scope representation, the answer has been unclear. Until now.

The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:

ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018

The Ethics Committee has asked to respond to two questions:

Is it ethical for a lawyer to prepare documents for pro se litigants?

If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

APPLICABLE RULES

Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:

Rule 1.2 Scope of Representation

(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Comment

Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.

Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1

And,

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

ANALYSIS

(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?

Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.

(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.

While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.

There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.

The Lawyer’s Duty

January 16, 2018 § 2 Comments

In the spirit of the new year, which is always a good time to reassess and reevaluate, I offer you MCA § 73-3-37, with which I am sure you are familiar, but perhaps would like to read anew:

It is the duty of attorneys:

(1) To support the constitution and laws of this state and of the United States;

(2) To maintain the respect due to courts of justice and judicial officers;

(3) To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;

(4) To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;

(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;

(6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;

(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.

An End to Game-Playing

July 24, 2017 § 2 Comments

In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.

The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.

In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:

¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).

¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).

¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

The court went on to address and reject some other issues raised by the Griffins.

Some takeaways:

  • Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
  • Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
  • Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.

When You Are An Imminent Peril to Your Client

January 25, 2017 § 1 Comment

Earlier this week I saw a piece on a news show about the increasingly rampant practice of thieves stealing tax refunds by filing false tax returns.

In one case, a woman learned that the outlaws had filed a tax return in her name claiming thousands of dollars in fake deductions that resulted in a refund — to them and not her — of $26,000. The refund was directed to a blank (prepaid) credit card where it can not be traced. Of course, the victim had to go through much travail to undo all the damage.

In another case, a man’s tax return with all of his dependency exemptions was hijacked for $5,000.

A tax expert came on screen and said that all a thief requires is the taxpayer’s Social Security Number (SSN), and the number of each co-filer and dependent.

Okay. Let that sink in. All that is required is the SSN’s.

Think about how many documents you have in your possession that are full of your clients’ SSN’s. Every tax return has the taxpayer’s SSN on every single page — sometimes in multiple places. Loan applications have them. Social Security earnings reports and other communications have them.

When you file an 8.05 financial statement and do not redact those SSN’s, you are sending your client’s personal information unprotected out into the world. When you produce unredacted records in discovery, you are violating your clients’ confidences. When you introduce information into evidence that includes SSN’s, you are exposing your clients to fraud.

This is something I have discussed here before. It’s serious, and it has serious implications for you. It won’t be long before PI lawyers discover a fertile new field for liability: lawyers who violate their clients’ financial confidentiality and integrity by not observing either the MEC confidentiality rules or the simple, common-sense precaution of redaction.

It seems like every week I have to caution a lawyer to redact confidential information from documents being introduced into evidence. In one case, we had to take an hour-long recess to allow 10 years of tax returns to be redacted. That should have been done long before the trial date.

The MEC rules make it clear that, if confidential information is filed, it is considered that the client has waived confidentiality. So when you file unredacted information, you have waived confidentiality for your client. Did you have authority to do that? Haven’t you committed an ethical violation when you did it without your client’s express permission?

Discovery on Steroids

December 9, 2016 § 5 Comments

I know things can get tense out there, friends, but I hope it doesn’t come to this here in Mississippi:

A San Diego lawyer disbarred in a default judgment after walking out of his disciplinary trial says he plans to sue state officials involved in the proceedings.

The former lawyer, Douglas James Crawford, was accused of bringing pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if things got out of hand, and discharging the stun gun while pointing it toward opposing counsel, according to a summary of his case in the California Bar Journal. He was disbarred in September.

Crawford tells the San Diego Union-Tribune that he plans to sue for civil rights violations. He says he walked out of the disciplinary trial because he believed lawyers for the State Bar of California misrepresented facts and improperly kept him from presenting witnesses and evidence.

“As far as the disbarment, I could care less,” Crawford told the Union-Tribune. “It’s not really a group of people I want to associate myself with.”

A state bar court had found Crawford culpable in four of eight misconduct charges against him, according to the California Bar Journal summary and a July 2015 decision by the bar court hearing department. The bar court found he engaged in moral turpitude in the pepper spray and stun gun incident.

Crawford told the Union-Tribune that he brought the stun gun and pepper spray to the deposition because someone had brought a gun to another deposition and he felt unsafe. He said he displayed the stun gun and pepper spray to disclose that he was armed, but he never threatened anyone with them.

People bringing guns to depositions? People feeling unsafe at depositions? My Lord. And the disbarred lawyer is planning to sue for “civil rights violations.” Really.

I didn’t make this up. You can read the article at this link.

Breaching Confidentiality

November 22, 2016 § 1 Comment

Suppose your client gave you her income tax return in confidence. You then make 20 unredacted copies and drive down the street throwing them at passers-by. Have you violated your client’s confidentiality?

Or suppose that your client gave you those same tax returns with the understanding that they would be disclosed in discovery in the course of her divorce. You send them unredacted to opposing counsel in answer to a request for production. Counsel opposite makes a copy for his client, who throws it in the back of his pickup. Later, it blows out as he zooms down the interstate, scattering your client’s name and SSN to the four winds. Have you violated your client’s confidentiality?

Or you simply file those tax returns unredacted on MEC. Have you violated your client’s confidentiality?

I think the undebatable answer in each scenerio is a resounding YES. It is you who chose to send the documents out into the cold, cruel, identity-stealing world unredacted, contrary to MEC Section 9. Remember, MEC says that if you file unredacted documents you have waived confidentiality; did your client authorize you to do that? Did your client even know you were going to do that?

I know, MEC applies only to electronic filings. True. But the principle should be the same in everything you do with your client’s sensitive documents and things, whether in paper discovery, exhibits in court, correspondence, and on and on. Your clients want and expect you to protect their confidentiality.

We get all manner of things attached to motions in this court. Our standard practice is to turn the paperwork over to the staff attorney who then uses the unprinted-on backsides to print internal memos, cases, etc. A few days ago, I finished a memo and noticed that it was printed on the back of a copy of a federal tax return. The names and SSN’s of the taxpayers were unredacted. Those were immediately shredded. Had I not caught that those folks’ names and SSN’s would simply have gone into the trash, and thence to a landfill, perhaps to be picked up by a breeze and deposited into the clutches of a n’er-do-well. Whoever filed that return unredacted is responsible for its consequences.

Ethics in Action

September 30, 2016 § 1 Comment

Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.

For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?

A reader sent me this:

Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.

The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.

Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).

I invite your comments on how you would have addressed this situation.

Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.

If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.

Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.

This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.

__________________

Thanks to Attorney Hale Freeland

How Low Can We Go?

September 9, 2016 § 2 Comments

This from the online ABA Journal

Two more lawyers are permanently disbarred for DUI setup of opposing counsel

POSTED AUG 26, 2016 10:39 AM CDT

BY DEBRA CASSENS WEISS

The Florida Supreme Court has permanently disbarred two Tampa lawyers for setting up their opposing counsel for a DUI arrest in the middle of a trial.

The court disbarred Robert Adams and Adam Filthaut on Thursday, saying their actions were “among the most shocking, unethical and unprofessional” that the court had ever witnessed. The Daily Business Review (sub. req.), the Tampa Bay Times and the Legal Profession Blog have stories. The decision is here (PDF).

Adams and Filthaut had argued any disbarment should not be permanent. A third lawyer involved in the setup, Stephen Diaco, was permanently disbarred in January after dropping his appeal.

The lawyers were accused of sending a paralegal to a Tampa steakhouse where the opposing lawyer was having drinks. The flirtatious paralegal seated herself next to the opposing lawyer and later persuaded him to drive her car, resulting in his arrest by a waiting police officer. The targeted lawyer had originally planned to walk home to his nearby apartment.

The court said the actions of the disbarred lawyers “constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client.”

Filthaut’s lawyer, Mark O’Brien, told the Daily Business Review that his client “is obviously very disappointed, but he has moved on and is actually very happy in his current endeavors.” Filthaut now runs an auto-glass business.

The headline reads “Two more lawyers …” as if this is the latest in a developing Zika-like epidemic. I know it refers to the two latest in addition to the one who dropped his appeal. Still, as unsettling as this story is, it’s scary to think it could be replicated anywhere else.

As I said earlier in the week, stories like this make it hard to defend the profession.

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