Articles Posted in Legal Ethics

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Opinion – this article appeared in the Chicago Daily Law Bulletin on Tuesday August 13, 2013.

 

By Edward X. Clinton, Jr.

The ARDC has charged a 2007 Northern Illinois graduate, Reema Bajaj, for her role in criminal conduct, namely pleading guilty to two misdemeanor counts of prostitution, lying to the ARDC and failing to answer some questions accurately in her application to be a member of the Illinois bar. According to the ARDC complaint, which can be found on its website, Ms. Bajaj engaged in sex acts for money.  In 2011, she was charged with prostitution by the States Attorney of DeKalb County. The case has received extensive coverage from the website abovethelaw.com and other media outlets.  I have never met Bajaj and know of this case only through media reports.

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The Minnesota Supreme Court has disciplined a lawyer for posing as a client of a lawyer on a website and posting a false negative review.

Comment: This is another example of poor judgment in internet activity being used to punish a lawyer.

The case is captioned:

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Matter of O’Hare (2013 NY Slip Op 05320).

The New York Appellate Division has suspended a lawyer from the practice of law for one year for creating an online profile on a lesbian dating site. The lawyer who is male was also convicted of attempted aggravated harassment.

The Court described the facts as follows: “The underlying facts, which are undisputed, are as follows: the respondent, using the internet, went to a dating site for lesbians and created a sham posting by impersonating a woman whom he knew years ago; he used both his home and work computers for this activity. The respondent was aware that the sham posting would likely cause embarrassment to the woman, who was a mother of three.”

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BEFORE THE HEARING BOARD.

This is a complaint filed by the ARDC, the Attorney Registration and Disciplinary Commission. The ARDC’s complaint alleges that an attorney, Tina Marie Jacobs, filed a foreclosure case against a homeowner. The ARDC alleges that the lawyer failed to provide the homeowner with a grace period notice required by the Illinois Code of Civil Procedure. The statute sets forth the exact text the grace period notice must contain:

“The notice required in this subsection (c) shall state the date on which the notice was mailed, shall be headed in bold 14-point type “GRACE PERIOD NOTICE”, and shall state the following in 14-point type: “YOUR LOAN IS MORE THAN 30 DAYS PAST DUE. YOU MAY BE EXPERIENCING FINANCIAL DIFFICULTY. IT MAY BE IN YOUR BEST INTEREST TO SEEK APPROVED HOUSING COUNSELING. YOU HAVE A GRACE PERIOD OF 30 DAYS FROM THE DATE OF THIS NOTICE TO OBTAIN APPROVED HOUSING COUNSELING. DURING THE GRACE PERIOD, THE LAW PROHIBITS US FROM TAKING ANY LEGAL ACTION AGAINST YOU. YOU MAY BE ENTITLED TO AN ADDITIONAL 30 DAY GRACE PERIOD IF YOU OBTAIN HOUSING COUNSELING FROM AN APPROVED HOUSING COUNSELING AGENCY. A LIST OF APPROVED COUNSELING AGENCIES MAY BE OBTAINED FROM THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION.”

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Filed June 12.

The respondent, an attorney, was the President and Treasurer of her condo association. She allegedly used $5,666.29 in condominium funds for personal purchases. The Condominium association apparently reported her to the ARDC which filed a complaint. The Hearing Board states that the respondent had $175,000 in student loans.

This is another example of a lawyer engaging in misconduct in non-legal duties and suffering punishment as a result. Also, the conversion was extremely easy to prove because the association’s funds were used for personal items.

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BEFORE THE HEARING BOARD.

This is a disciplinary complaint filed by the ARDC against a lawyer. The ARDC alleges that the 93 year old client entrusted $80,000 to the lawyer. The lawyer used $79,963 of the funds for his own expenses and did not use any of the money for the benefit of the elderly client. Elder abuse is a fast-growing area of the attorney discipline regime.

This is a complaint only. It has not been proven. If true, it is a dreadful story.

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This case is a somewhat routine affirmance of a bank fraud conviction and the rejection of an ineffective assistance of counsel claim. The Defendant alleged that her lawyer rendered ineffective assistance of counsel by failing to call certain witnesses at the trial of the case. In the criminal world, an ineffective assistance claim is equivalent in many ways to a legal malpractice claim. If there is a finding of ineffective assistance of counsel, the defendant is sometimes entitled to a new trial.

Here, the defendant fired her lawyers, but was assisted by stand by counsel at her trial. Counsel decided not to call certain witnesses because the potential risk of their negative testimony far outweighed the potential reward. This case makes it clear that these decisions are for the lawyer to make at trial, except in unusual circumstances.  The Seventh Circuit explains the rules applicable to witness testimony issues: “A “lawyer’s decision to call or not to call a witness is a strategic decision generally not subject to review. The Constitution does not oblige counsel to present each and every witness that is suggested to him.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)). Indeed, Parker acknowledges that the decision whether to call a witness was her attorney’s to make.”

Comment: the point here is that it is almost impossible to win a legal malpractice case on the ground that the lawyer failed to call a witness. That decision was the lawyer’s to make in his professional judgment.

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CLAUSON & ATWOOD v. PROFESSIONALS DIRECT INSURANCE CO., Dist. Court, D. New Hampshire 2013 – Google Scholar.

This is yet another development in the huge and growing area of litigation between lawyers and their legal malpractice insurers.

Here, the insurance company obtained summary judgment against the lawyers on the ground that the claim was not made in the policy period. Once again, the lawyers did little to help their own cause – they failed to promptly report the claim to the insurance company.

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Filed December 28.

This case involves a lawyer who was the executor of his father’s estate and who, allegedly, took loans from the estate. The prosecution follows a recent trend – the ARDC has often prosecuted lawyers for conduct that does not relate to their legal work if the ARDC believes that the conduct was improper, deceptive or fraudulent. In almost all of these cases, the lawyer took some action that caused financial harm to others.

The ARDC hearing board found that there were violations of the rules and recommended a one year suspension of the lawyer.

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BEFORE THE HEARING BOARD.

The ARDC has brought a complaint against an Illinois lawyer, accusing him, among other things, of failing to diligently handle litigation that was assigned to him in his firm, failing to keep clients informed and, most seriously, preparing a fake court order to cover up his own negligence and providing a copy of that court order to a partner in the firm.

Every now and then there is a case like this where someone makes a mistake by missing a deadline in responding to a motion, loses the motion and then tries to cover it up with misrepresentations.  This is a sad case. The negligent act, failing to respond to a motion for summary judgment, caused a judgment to be entered against a client. Had the bad result and the error been communicated to the client promptly, the lawyer would have been terminated, but would not be facing professional discipline.

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