Family Lawyers in Trouble; Recent Ethics Decisions
By Paul L. Feinstein, PAUL L. FEINSTEIN, LTD., Chicago, Illinois
As matrimonial attorneys in difficult financial times, with evolving and varied legal issues and having to deal with nasty litigants and opposing counsel, it is always important to not cross the line between ethical and unethical behavior. Domestic relations lawyers are often a target of disciplinary complaints given the fiery emotions unveiled in these cases. The following takes a look at various lawyer disciplinary cases decided around the country recently. Many of these cases involved domestic relations but not all of them. Obviously a lot of these areas of misconduct are "no brainers" but it is interesting to see the sorts of things that are catching the eye of disciplinary commissions around the nation.
In Illinois some of the recent disciplinary decisions are found in a summary of such cases published by the Illinois Attorney Registration and Disciplinary Commission. I learned of the cases from other states courtesy of the American Bar Association Journal and the Legal Profession Blog. If the state is not identified, the discipline took place in Illinois.
I. Conflict of interest and neglect are a major problem:
- An attorney was suspended for three years and until further order of Court (suspension was partially stayed on probation with conditions) for borrowing substantial funds while serving as a co-trustee of a trust that he created to benefit his client's developmentally disabled adult son, without making proper disclosures to the co-trustee about his conflict of interest. The loan was discharged in bankruptcy.
- A lawyer was suspended for six months and until further of Court for neglecting a client matter and misrepresenting the status of the case to the client. He also failed to participate in the disciplinary process, which seems to take place in a shocking number of these cases.
- A lawyer was suspended for two years and until further order of Court for among other things, not carrying out duties in cases where he had been appointed guardian ad litem.
- An attorney was censured and required to complete a professionalism seminar for neglecting discovery obligations in a divorce case which caused monetary sanctions against the client, and then did not tell the client of the sanctions.
- A lawyer who neglected nine different client matters, failed to refund unearned fees to the clients and did not cooperate with the disciplinary investigation was disbarred.
- A lawyer who neglected several matters, misrepresented the status of his clients and delivered NSF checks to his office landlord, was disbarred on consent.
- A lawyer in Michigan was disbarred for settling a personal injury matter without his client's knowledge or consent.
- A lawyer in Missouri was disbarred for neglecting adoption matters and filing a false affidavit in an adoption proceeding.
- Also be careful about trying areas of law that are not familiar to you. A lawyer in Massachusetts who had never before filed an appellate brief was reprimanded for filing a brief containing misrepresentations.
II. Disciplinary sanctions also follow charges, conduct or convictions of criminal activity in some instances:
- One lawyer was suspended for one year and until further order of Court for possessing illegal drugs on three separate occasions.
- A lawyer who was convicted of forgery and theft for having defrauded her former law partner by intercepting checks due to the partnership and using the check proceeds for herself, and drawing checks on the firm's account without her partner's knowledge, was disbarred on consent.
- A lawyer convicted twice of driving under the influence of alcohol was suspended for two years and until further order of Court (suspension was partially stayed on probation with conditions).
- A lawyer who was convicted on five misdemeanor counts of theft of clients' retainer monies was suspended for four years and until further order of Court, and until he satisfies a restitution order.
- A lawyer who pled guilty to domestic battery after striking his wife and engaged in a second act of domestic battery involving his daughter, was suspended for two years and until further order of Court.
- A lawyer who pled guilty to a charge of willfully assisting a client in filing a fraudulent income tax return that understated the client's income, was disbarred on consent.
- In California a lawyer was summarily disbarred following federal convictions of one count each for tax evasion and bankruptcy fraud and seventeen counts of money laundering. The same lawyer had earlier been suspended by the Bar for charging unconscionable fees and being "aggressive, hostile and forceful" with his clients.
III. Many sanctions have involved conduct involving fraud, deceit, dishonesty, misrepresentation or lack of candor:
- A lawyer who falsely billed his firm's corporate clients, was suspended for two years.
- A lawyer who twice acted as a witness to execution of documents that were signed outside of his presence, was censured.
- A lawyer who falsified court orders and an affidavit in five different domestic relations cases in order to conceal the true status of cases from the clients, was disbarred on consent.
- A lawyer who engaged in an ex parte communication with a Judge and misled the court in that conversation, was suspended for one year and until further order of Court.
- A lawyer who made false and defamatory statements about judges, among other things, was suspended for two years and until further order of Court.
- A lawyer was censured when at the request of a former client, he improperly notarized the former client's wife's signature on a power of attorney and a mortgage form. He was unaware at that time that the documents were to be used by the former client to obtain loans without the wife's knowledge.
- A lawyer advanced living expenses to a client, and also wrote checks on his law firm account payable to doctors and falsely made it appear as though the payments were costs for treating firm clients. He was suspended for one year and until further order of Court (suspension partially stayed on period on probation with conditions).
- In order to gain a financial advantage in his own divorce, a lawyer withheld from his wife the fact that he had assigned to his cousin the right to collect on a premarital debt owed to him by his wife. He was suspended for one year and until further order of Court.
- A lawyer who purposely failed to disclose assets in his own personal bankruptcy petition was suspended for one year.
- A lawyer who billed more than $1,000,000 to two corporate clients for work that he did not perform, was disbarred.
- A lawyer was suspended for two years for forging and notarizing signatures of a third party on pleadings in a divorce case, making false statements to the Court and to the Disciplinary Commission, and attempting to obstruct a disciplinary commission investigation by providing funds to a complaining witness.
- Recently the Hearing Board of Illinois recommended (which is still subject to the right to appeal) a six month suspension and until further order of Court, for a lawyer engaging in misconduct revolving around a matrimonial case. The lawyer was found to have filed pleadings misrepresenting the contents of certain orders. He was sanctioned multiple times by different domestic relations judges. Even more disturbing, he then attempted substitutions of judges after they ruled against him, actually subpoenaing one of the judges, and accusing them of having "no intention of weighing the merits of the arguments," intentionally making false statements, and racially discriminating against the lawyer.
- A Missouri lawyer was disbarred for failing to prepare an order as directed by a family law judge and for not participating in the disciplinary process.
- A lawyer in California was disbarred for repeatedly filing frivolous lawsuits, pleadings and appeals.
- A lawyer in Michigan was suspended for 120 days after she was found in contempt of Court for violating a trial court injunction, filing a frivolous action and disobeying a court order.
- A South Dakota lawyer who had previously been suspended and failed to disclose it in applications for employment to a law firm, and for malpractice insurance, was disbarred.
- A lawyer who made a material misrepresentation on his application for admission to the Bar, by failing to disclose that he submitted altered law school transcripts to prospective employers, was suspended for three years and until further order of Court.
- In Georgia a lawyer was disbarred for filing an unsuccessful lawsuit that the Judge found was, "perhaps the most frivolous and least warranted suit that it had ever encountered." The lawyer relocated his office without informing the client. He did not give the client a copy of the summary judgment order until time for appealing it had passed. He collected a $9,000.00 fee for the frivolous lawsuit. There was other conduct as well.
- A sole practitioner in Virginia was suspended 30 days followed by a year probation for (among other things) holding out that his law firm was bigger than it was. His website identified nonexistent practice groups, falsely stated that the firm had three locations and implied that a nonlawyer was actually a lawyer associate.
- A Connecticut lawyer applying for a job with a state agency was suspended over misrepresentations on his resume. The moral is, prospective employers check resumes. One of the misrepresentations was disclosing a previous employer that, "apparently did not exist". He also falsely claimed that he had graduated Cum Laude from law school. He claimed that he had been Assistant Note Editor with Law Review, which he had not. He also failed to disclose a law firm where he had worked.
IV. Of course, numerous disciplinary actions concern the issue of attorney's fees:
- An attorney who failed to properly refund the unearned portion of fee advances he had received from several clients who had discharged him, was censured and required to complete a professionalism seminar.
- A lawyer who submitted inaccurate fee petitions and affidavits to a court in connection with a juvenile justice program, was suspended for two years (suspension partially stayed on probation with conditions).
- A lawyer who shifted time so that bills that were sent to a client did not show the full extent of the time he spent on the client's case and later filed copies of those bills with the court in support of a fee petition, was suspended for 90 days.
It also seems when there are fee issues, that failure to pay restitution ends up hurting the lawyer in the disciplinary process.
V. Commingling and conversion is a serious problem as well:
- A lawyer who mismanaged funds belonging to a domestic relations client was suspended for three years and until further order of Court (suspension partially stayed on probation with conditions).
- A lawyer was suspended for one year (suspension partially stayed on probation with conditions) due to bad bookkeeping practices. He failed to preserve the identity of money he had been holding in escrow in connection with a real estate transaction.
- A lawyer who misappropriated estate and trust funds and collected an unreasonable fee, was disbarred.
- A lawyer was suspended for two years and until further of Court, for among other things converting client funds, failing to refund unearned fees, failing to enter into a written contingent agreement in a personal injury case, and shoplifting from a grocery store.
- If you think you have to take thousands and thousands of dollars to be sanctioned, you may be wrong. An attorney in Maryland was disbarred for misappropriating a total of $1,100.00 in two bankruptcy cases.
VI. Lawyers who continue to practice despite being suspended, obviously risk further disciplinary action:
- A lawyer who authored an appellate brief on behalf of a client while that attorney was suspended, and used another attorney's name, was suspended for three months.
- A lawyer who was taken off the master roll of attorneys for not complying with continuing legal education requirements and continued to handle matters, was censured and ordered to complete a program.
VII. Disciplinary agencies have now begun to impose discipline for personal misconduct unrelated to the practice of law:
- A lawyer who among other things, video taped sexual encounters that he had with women, without their knowledge or consent, was suspended for two years and until further order of Court.
- A lawyer who made unsolicited and improper sexual advances towards a female client and the wife of another client, was suspended for one year.
- A lawyer was suspended for sixty days for violating an order of protection that his ex-wife had obtained against him. He also used personal identity information from his ex-wife to obtain a loan.
- A New Jersey lawyer was censured for taking food and drink from a blind refreshment stand vendor without paying for the items!
- A New Jersey lawyer was disbarred for creating phony time records, having sex with a client and submitting expense vouchers for dinners with women he was dating, including two women he met through the internet. The client he slept with was a divorce client. Both the lawyer and the divorce client denied a relationship, but emails between them told a different story. The divorce client was attempting to reconcile with her husband at the time.
- With such wonderful inventions as Blogs, Tweets, Facebook, etc., lawyers need to be more careful with what they say online. A government lawyer in Indiana recently lost his job after making a "tweet" with advice to police facing pro-labor protestors in Wisconsin. He said, "use live ammunition."
- A lawyer who revealed protected client information on an internet blog, was suspended for sixty days.
Also for lawyers considering this, the North Carolina State Bar may be issuing an opinion that says that it is unethical for a lawyer to offer bargains through Groupon.
Of course the severity of some of the penalties imposed depended on whether or not this was a first offense.
The consequences of many of these lawyers' conduct appears self-evident, but since there seem to be so many incidents of varying conduct, it never hurts to periodically make oneself aware. In domestic cases make sure your conflicts checks are accurate as that seems to be an increasing problem (in other words, both spouses interviewing with the same lawyer or firm). Neglect is another problem area. If you are too busy to properly deal with a difficult family law case, refer it to someone who has the time or bring them in as co-counsel. And since these cases also touch on other areas of the law such as bankruptcy, corporate law and real estate, make sure you are equipped with the knowledge to handle the case. And beware of clients who lie and understand the ethical rules in your state concerning what to do.
Paul L. Feinstein, a Chicago sole practitioner with over 30 years of experience, concentrates his practice in family law with emphasis on divorce litigation, custody and visitation, and appeals. He can be reached at (312) 346-6392. View his Divorce Magazine profile.
For more articles on how to work your divorce lawyer, visit www.divorcemag.com/articles/Divorce_Lawyers.