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.

A Saga of Bad Behavior

September 8, 2016 § 1 Comment

Every attorney I know bridles when the conversation turns to questioning the general honesty of lawyers. We tend to get indignant and insist that ours is an honorable profession.

It is. Certainly. Yet some of our colleagues do things that tar all of us.

Consider what happened in the case of Newton v. Brown, et al., decided by the COA May 24, 2016. The case at the trial level involved dissolution of a two medical partnerships; one to purchase a building and parking lot, and the other to operate a medical clinic out of the purchased building. The partners were Drs. Brown and Matthews. When Matthews was convicted of failing to file tax returns, they began the process of dissolution. Each engaged the services of a lawyer to represent him. The dissolution involved exchanges of payments, deeds, and instruments. Brown was to buy out Matthews’ interest in the property and clinic.

Brown’s attorney handled the property transaction. He was given a check payable to the Mississippi State Tax Commission to satisfy its lien against the partnership property. At ¶8, Judge Griffis describes how Brown’s attorney handled his share of the responsibilities:

  1. He did not forward the check to the tax commission;
  2. He incorrectly drafted the quitclaim deed from Matthews to Brown by omitting the parking lot;
  3. He failed to record the quitclaim deed, and to compound the calamity …
  4. He lost the deed;
  5. He did not find or disclose a judgment lien on the property at the time of conveyance, which caused mischief later.

As head-shaking as is all of that, it just does not hold a candle to the conduct of Matthews’ attorney. Since Matthews at that time was already incarcerated, his attorney proceeded to collect the money due the doctor. The attorney visited Blakeslee, a CPA for the partnership. Blakeslee had two checks payable to the attorney as representative for the jailed doctor: one, a Hancock Bank check for more than $55,000 for the doctor’s share of the partnership’s liquid assets; and another, drawn on on an A.G. Edwards account, in the amount of more than $49,000 for the doctor’s share of the cash surrender of a whole-life insurance policy.

When Blakeslee left the room for a moment, the attorney took the checks, a folder, and some papers from Blakeslee’s desk and put them in his car. Blakeslee demanded return of the checks because Brown wanted to retain the money to offset the lien that he had belatedly discovered after he bought the property from Matthews. Newton refused, and negotiated the Hancock Bank check. He attempted unsuccessfully to negotiate the A.G. Edwards check.

Brown got an injunction and pursued a conversion action against the lawyer. You can read about how it turned out at the link above.

My interest in this case is the behavior of the attorneys:

On one hand, we see an attorney who committed compound blunders in handling the land transaction. Blunders that cost his client some serious money, and are continuing to do so.

On the other hand, we have what Judge Griffis characterized as “egregious behavior” by the attorney who took the checks without authorization and refused to return them. Egregious indeed.

These are the kinds of behaviors that make our words ring hollow when we try to defend the profession.

Week before last, I sat down with some entering law school students and discussed with them the gravity of the honor and dignity of the profession, and how the public places immense trust in our hands. We pondered some case studies involving ethical and professionalism considerations. It was gratifying to see their almost instinctual grasp of what is right and wrong, of what is to be expected of them when they are admitted to practice. I hope they avoid blunders and “egregious behavior” when their time comes.

 

What You Get to Decide as Attorney

November 24, 2015 § 3 Comments

Every now and then a lawyer will shrug his shoulders and say, “I filed it because that’s what my client told me to do.” Or, “I didn’t want that language in the agreement, Judge, but the client insisted.”

Things like that make me scratch my head and wonder what are today’s boundary lines between the lawyer’s authority and the client’s decision-making realm.

This article by Megan Zavieh on Lawyerist entitled Who Decides What in the Attorney-Client Relationship offers some helpful guidance.

I noticed that she specifically stated that, although the client gets to determine the goal, the attorney gets to decide the means. What happens, though, when the client’s objective is to drag out the litigation as long as possible with frivolous and vexatious motions, unnecessary and unnecessarily voluminous discovery, and to run up the cost to the opposing party to bleed them dry? Or what if the client’s sole objective is revenge by disclosing embarrassing information on the very periphery of relevance? These can be some tough choices for the attorney, especially when the client is willing to pay. How much of your reputation are you willing to spend for that fee?

When I represented clients, I made it clear that I would make the decisions about strategy and tactics, and I didn’t need the client’s helpful guidance in how to do that. In that way, I made sure that I was doing what I felt was ethical and was zealous representation within the bounds of the law. When clients, untrained in and unencumbered by ethical rules, begin calling those shots, you can find yourself in big trouble.   

Mismanagement of a Guardianship Morphed into a Crime

November 17, 2015 § 1 Comment

Attorney Michael J. Brown mismanaged and embezzled more than $1.2 million of guardianship funds. It’s a sordid tale that you can review at this post, which includes links to several others. Brown’s conduct also attracted an indictment in Rankin County Circuit Court.

On November 12, 2015, the MSSC in Brown v. State affirmed his convictions, but reversed as to restitution:

¶61. Brown’s convictions were supported by sufficient evidence and were not against the great weight of the evidence. Ample evidence existed to show that the $550,000 in loans came out of guardianship funds, and the trial court applied the law correctly with regard to the “own use” element of the statute. Brown waived any objection to Rule 404(b) evidence being admitted at trial, and he waived any objection to the language in the jury instructions by failing to raise the issue in his post-trial motion. Regardless, both arguments are without merit. Thus, Brown’s convictions and sentence to a term of years are affirmed. However, the trial court exceeded its sentencing authority in sentencing Brown to pay $1.2 million in restitution; thus, this Court vacates the restitution portion of Brown’s sentence and remands the case for resentencing, in other words, for again determining restitution, consistent with this opinion.

Brown has already been disbarred. He leaves in his wreckage the ward, whose assets will probably never be recovered, his career, his family, and his reputation.

I doubt most of you will ever fall into such an abyss. But if you find yourself close, step back and think of how Mr. Brown’s misadventure turned out.

Records of Regularly Conducted Activity

October 12, 2015 § 2 Comments

MRE 803(6) is an important exception to the hearsay rule. It allows you to admit into evidence certain documents even though they are in essence hearsay. The rule reads this way:

Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The document is admissible (1) if the information recorded was by a person with knowledge, and (2) the document was kept in the course of regular business activity, and (3) keeping such information in that form was the regular practice of the entity.

It is not necessary for every person who participated in compiling the data to come to court to testify about it to make it admissible. It can be authenticated by a “custodian or other qualified witness,” or it can be self-authenticated, as we will discuss below.

The court will determine whether the source and method of preparation are trustworthy enough to support admissibility.

Self-authentication is covered in MRE 902. To put it in simple terms, self-authentication means either that

  1. The document itself bears insignia or signs of authenticity so that a custodian or other person is not necessary to identify it and establish its authenticity. Some examples are set out in the rule, and you can expand on those to come up with other categories of documents to authenticate in this fashion.
  2. The document is accompanied by a certificate of authenticity as provided in MRE 902(11). This category is a little more ticklish to accomplish, so we will look at it in greater detail.

MRE 902(11) provides as follows:

(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of
information or the method or circumstances of preparation indicate lack of trustworthiness.

(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury; and, (ii) with respect to records maintained or located in a foreign country, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. A certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and the position in the regularly conducted activity of the executing individual as is required for certification of Foreign Public Documents by subsection (3) of this rule.

So to comply with this part of MRE 902(11) you must file an affidavit under criminal penalty of perjury that the affiant swears that all of the requirements of MRE 803(6) are satisfied, and that the affiant is a person who could establish authenticity if he or she were to testify. You should track the language in both paragraphs in drafting your affidavit. Note that if the affidavit is by a person in a foreign country you must comply with MRE 902(3).

Now that you have done all that, there is more that you need to do to make the document(s) admissible at trial. MRE 902(11)(C) is critical:

(C) (i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections. (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time. (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating. (iv) If in a civil case, on motion by the proponent after the trial
or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.

You must give timely notice to your opponent of your intent to offer the records under this rule, and if the opponent objects, you must set a hearing for the court to resolve the issue. Note the language of the rule: “Records so certified will be self-authenticating only if the proponent gives notice …” No notice = no self-authentication.

Sometimes lawyers agree on a handshake to let the document(s) in. That’s okay when it works, but every lawyer has a tale of woe about an opponent who said one thing in the halls of the courthouse two weeks ago, and then does not quite remember it the same way on the floor of the courtroom at trial. Better practice is to file that notice with a certificate of service. At a minimum, you should document the notice via email or regular mail. Any documentation is better than none, but some forms are better than others.

MRE 902 is a marvelous road map for how to get documents into evidence without a sponsoring witness, but you’d better follow it in every detail if you wish to succeed.

 

 

 

The Unanswered Divorce Complaint

July 21, 2015 § 14 Comments

You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.

On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.

On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?

  • Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
  • You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
  • Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
  • Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
  • [Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.

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