Calling in Sick May be Hazardous to a Lawyer’s Career

The Illinois Supreme Court recently issued an order suspending an attorney for sixty days after faking an illness to avoid oral arguments before the 7th U.S. Circuit Court of Appeals. The order, which came on the heels of a scathing opinion by the 7th Circuit, also required the lawyer to pay $5,000 in restitution to his client’s mother, as well as to repay the state’s client protection fund for any payments made as a result of his conduct.

On the morning that oral arguments were scheduled to take place before the 7th Circuit, the lawyer called the clerk’s office and informed the clerk that he would not be appearing in court that day. The clerk subsequently attempted to contact the lawyer and notify him that his attendance was required, but the lawyer failed to respond. As a result, the arguments proceeded without the lawyer, and his client ultimately lost the appeal.

In the order to show cause, the Circuit Court requested that the lawyer supply medical documentation of his claimed illness, such as a certificate showing his admission to an emergency room. After failing to supply any such documentation, the lawyer admitted that he had feigned an illness because he felt unprepared to proceed. Concluding that the lawyer had acted unprofessionally, the 7th Circuit fined him $1,000 and stated that it would refrain from appointing him to any appeals under the Criminal Justice Act for 24 months. In doing so, the court acknowledged that, “[t]o leave a client unrepresented on the morning of oral argument is nothing short of appalling.”

Click here to read commentary on the suspension.

Failure to Disclose Information on the Bar Application May Come Back to Haunt You

In an Illinois Supreme Court order issued on March 14, 2014, lawyer, Reema Nicki Bajaj, consented to be suspended for three years and until further order for failing to disclose on her bar application her illegal work history as a prostitute.

According to the Illinois Attorney Registration and Disciplinary Commission, Bajaj advertised herself as “Nikita” on AdultFriendFinder.com, performed sex acts with two men who answered the ads (ultimately pleading guilty to prostitution for one of them), and gave false testimony in an ethics case in September 2012, where she denied that she ever exchanged sex for money. With regards to her bar application, Bajaj failed to disclose her “Nikita” alias in response to the question that asks if the respondent has ever been known by any other name, failed to disclose her employment as a prostitute in her employment history, and falsely answered “no” in response to a question about possible misconduct.

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Bajaj was admitted to practice law in the State of Illinois in 2010, but was active on AdultFriendFinder.com between 2005 and 2008. In 2012, she pleaded guilty to prostitution stemming from a 2010 encounter with a man she met on the website, bringing her past to the attention of the Illinois Attorney Registration and Disciplinary Commission.

The Illinois Supreme Court sided with the Commission and agreed to suspend Bajaj from the practice of law for three years, placing great importance on a lawyer’s honesty. This decision serves as a cautionary tale to law students and lawyers alike: what you include (or fail to include) on your bar application matters and it may just come back to haunt you.

Read more about the case here, and see the disciplinary petition here.

The Lying Client Dilemma

Elizabeth J. Cohen’s article, “Risk Management Speakers Debate Duties When Suspicions Arise That Client Is Lying,” reports on a recent discussion panel held in Chicago called “Watching Your Step: Uncovering and Working Through Client Lies,” focused on what a lawyer’s obligations are when dealing with a client who may not be telling the truth. Thomas Sukowicz, the panel host, explained it well when he said that an untrustworthy client triggers a difficult tension between a lawyer’s “obligation of confidentiality and the obligation of professional independence.”

Featured panelists commented that modern lawyers are driven by “causes” such that the boundaries of attorney-client confidentiality are more likely to bend. Unlike previous generations of attorneys, this modern generation believes that “the cause justifies keeping the client’s secret.”

Nevertheless, panelist Mark Tuft explained that Model Rule of Professional Conduct 1.4 and Comment 9 to Rule 1.2 illustrate the fine line that attorneys walk in offering legal advice to a client who may use that advice to commit fraud or criminal activity.

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Comment 9 emphasizes the critical distinction between legal analysis and improper recommendations. According to the Comment, “the prohibition on a lawyer from knowingly counseling or assisting a client to commit a crime or fraud . . . does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action.”

Additionally, Rule 1.4(a)(5) offers attorneys a safety valve by explaining that “a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” A relevant limitation includes the impermissible assistance of a client in committing a crime.

Finally, Tuft reminded panel-attendees, “a core concept of [the rules of professional responsibility] is client autonomy. A client will do what they choose to, and the lawyer’s obligation does not arise until he has actual knowledge of client wrongdoing.”

Defense Counsel Allowed to Testify at Former Defendant’s Ineffective Assistance of Counsel Hearing

Antwan Peppers recently filed an ineffective assistance of counsel claim against the defense attorneys who represented him in his 2008 murder trial based on the attorneys’ failure to use Peppers’ alibi defense.  Peppers was ultimately sentenced to fifty years for premeditated first-degree murder and has since appealed his conviction based on the ineffective assistance of counsel claim.  The attorneys argued that phone calls with Peppers’ girlfriend made it “problematic to use the alibi” because his girlfriend’s statements were inconsistent with other witnesses’ statements.  The attorneys further stated that they decided not to use the alibi because they felt it was in Pepper’s best interest.

 

Wendell Betts, the lead defense attorney during Peppers’ murder trial, was set to testify at the hearing on Peppers’ ineffective assistance claim, but Peppers objected, arguing that the attorney-client privilege barred Betts from releasing any information regarding the representation. The judge presiding over the hearing held that this type of hearing actually constituted an exception to the attorney-client privilege and stated that as such Peppers informed consent was not needed.

 

ABA Model Rule of Professional Conduct 1.6, the confidentiality rule, should be given some consideration in this type of situation.  It protects all of the client information learned throughout the representation whether or not the information is covered by the attorney-client privilege.  However, ABA Formal Opinion 10-456 discusses the exception embedded in Rule 1.6 that allows attorneys to disseminate limited information in self-defense.  Specifically, section 1.6(b)(5) states, “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense.”  In the opinion, the ABA goes on to state that attorneys confronted with ineffective assistance claim hearings are not only able to defend the representation, but may also give the court insight into whether the defendant has a valid claim warranting a new trial.  Even with this exception in Rule 1.6, courts still generally limit attorneys’ testimony to what is reasonably necessary in order to protect the defendant and ensure that he or she receives a fair hearing.

Click here to read what Legal Ethics Forum has to say about this matter.

SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless

The Supreme Court has announced that it will be hearing the case of North Carolina Board of Dental Examiners v. Federal Trade Commission, 717 F.3d 359 (4th Cir. 2013).  This case deals with the North Carolina Board of Dental Examiners’ (NCBDE) ability to regulate the unlicensed practice of their profession. In its decision, the Fourth Circuit found that the NCBDE, comprised of licensed dentists who have been elected by their peers, was not immune from federal antitrust laws and was thus not allowed to regulate its professionals. Particularly, the court explained that “when a state agency is operated by market participants who are elected by other market participants, it is a ‘private actor” that can only maintain state action immunity from federal antitrust laws if it is “actively supervised” by state officials.

The structure of NCBDE is familiar as most state bar associations are structured similarly.  Due to the potential effect of this decision on state bar associations, the North Carolina State Bar Association (NCSBA) submitted an amicus brief to the Supreme Court noting the perils of opening up state regulatory bodies to antitrust liability. Specifically, NSCBA pointed out that upholding the Fourth Circuit decision would limit the states’ ability to regulate state-licensed professionals and impair their ability to “enforce state laws enacted to protect the public.”

The NSCBA went on to list four ways in which the decision would harm state bar associations: (1) limited resources will go to litigating the issue of whether state bar associations are entitled to state action immunity; (2) if no immunity is found, state bar associations will have to use limited resources to defend antitrust lawsuits, even in jurisdictions where the state has explicitly authorized them to regulate the conduct in question; (3) this will deter lawyers from serving on their bar association for fear of being named personally in antitrust lawsuits; and (4) threats of antitrust actions may deter bar counselors from fulfilling their duties. If the Supreme Court were to uphold the Fourth Circuit’s decision, the ability of state bar associations to regulate and discipline lawyers would be severely curtailed. In short, this case could leave bar associations nationwide tethered and toothless.

A copy of NSCBA’s amicus brief can be found here. For more information about the case and access to other amicus briefs, click here.

Lawyer’s Local Super Bowl Commercial Goes Viral: Are Florida’s Rules too Stringent?

National and local advertisements aired during the Super Bowl gain almost as much attention as the Super Bowl itself.

During this year’s Super Bowl, James Casino, a personal injury lawyer, ran a local advertisement in Georgia. The story line in the advertisement highlighted a “criminal defense lawyer who defended ‘cold-hearted villains,’” until the police became allegedly involved in Casino’s brother’s tragic murder. According to the Huffington Post article, Casino “used to defend accused criminals, which he now calls villains. Now, he’s here to defend you. The reason he does this is because the cops are also villains to him.”

After the Super Bowl, Casino’s ad went viral and  many magazines praised his creativity. However, the Georgia State Bar president did not join in on this sentiment. Although there was no ethical violation according to the Georgia rules, he stated that “‘most members’ of the Georgia Bar did not approve of what he calls Casino’s ‘sensationalism’ and ‘over-the-top graphics’ as an attempt to get business.”  Defending his advertisement, Casino stated that nowhere in the commercial was he “begging for people to call [him].” Additionally, there was no website listed, or “catchy slogans” present anywhere in the commercial.

Advertisements like Casino’s commercial are highly regulated by the bar, and lawyers have to be careful how they present themselves. Misrepresentation on an advertisement can lead to ethical violations. Consider, for example, Casino’s advertisement under Florida’s stringent advertisement rules. E.g., Florida Rule 4-7.15 (advertisement with dramatization, image, sound, or video that appeal to potential client’s emotions is unduly manipulative).”

For more information on Casino’s commercial, please click here.

Duty of Confidentiality Trumps Federal Whistleblower Provisions

In a recent decision weighing an attorney’s ethical duty of confidentiality against the government’s interest in encouraging “whistleblowers” to disclose unlawful conduct, the U.S. Court of Appeals for the Second Circuit ruled in favor of confidentiality. The issue arose in the context of a qui tam suit brought under the federal False Claims Act, which allows a private individual, or “whistleblower,” with knowledge of past or present fraud committed against the federal government, to assume the role of a “relator” and bring suit on the government’s behalf.

The Second Circuit held that the plaintiff-relator in this case, who was former in-house counsel to one of the defendants, violated Rule 1.9(c) of the New York Rules of Professional Conduct when he unnecessarily used confidential client information against his former company. The court reasoned that this Rule allowed the attorney to disclose such information only to the extent necessary to prevent the ongoing commission of a crime, as permitted by New York Rule of Professional Conduct 1.6(b)(2), and found that the attorney had exceeded these bounds. The court emphasized that, because there is no federal preemption of state attorney ethical rules, an attorney may not violate these rules in the process of bringing a qui tam suit.

Click here to read commentary on the opinion and click here to read the full opinion.