Legally Speaking: Lawyers Behaving Badly-Part Two

John G. Browning Apr. 3, 2008, 4:58am

In the first part of this series, I discussed lawyers with some serious ethical shortcomings – stealing from clients, bribery, filing made-up lawsuits, and so on.

Unfortunately, the spectrum of lawyer misbehavior is broad, indeed – which is why this week I continue my own list of ethical rules that some lawyers, apparently, never grasped in law school.

Rule Number Five: Don't Tamper With Witnesses

Some of the examples of attorney misconduct examined in the previous installment of this column dealt with lawyers with more marginal practices. But ethical lapses occur at even the largest, most prestigious law firms.

Last year, silk stocking New York law firm Cleary Gottlieb was sanctioned by a federal judge for interfering with a witness. The law firm was representing the Republic of Congo in a lawsuit involving a $56.9 million judgment that had been entered against the African nation in 2004.

The plaintiff wanting to enforce that judgment had subpoenaed Medard Mbemba, a Congolese citizen who reportedly knew where certain assets belonging to the country had been hidden. Mbemba did not have an attorney.

According to Judge Loretta Preska, a Cleary Gottlieb partner sought to interfere with discovery in the case, taking steps to discourage Mbemba from testifying. (According to Mbemba, he was told not to go.)

Not only did it not work – Mbemba testified – but Judge Preska ordered Cleary Gottlieb to pay the plaintiff's attorneys fees and costs and reprimanded the firm for crossing the line "between zealous advocacy and improper conduct."

Cleary Gottlieb has appealed the ruling, stating it "believes strongly that all of our attorneys acted properly and professionally and that this ruling is unwarranted and unfair."

Rule Number Six: Don't Sleep With the Judge

In February 2008, 31-year-old public defender Sean Cecil of Federal Way, Wash., acknowledged having a "single intimate encounter" with 46-year-old married Municipal Court Judge Colleen Hartl.

In December 2007, the judge hosted a holiday party in which she told her guests (including several court employees) that she had had sex with Cecil; she also displayed a text message in which Cecil had complimented her on how she looked in "tight jeans."

Cecil routinely handled cases in her court, and in fact handled eight cases in front of Judge Hartl after their encounter. Judge Hartl resigned in disgrace, later claiming that she was drunk at the party and had not actually had a fling with Cecil. Even though there were no cases in which Cecil's clients were known to have received preferential treatment, Cecil was hit with a complaint to the state bar association and was briefly barred from appearing in that municipal court.

Rule Number Seven: Don't Be a Sleazy Ambulance Chaser

In Warwick, R.I., the mother of a teen killed by a drunk driver has filed a complaint with the Rhode Island Supreme Court attorney disciplinary board against two local attorneys.

According to Kathleen Gemma, the two lawyers – Robert D'Amico and Jimmy Burchfield – came to her son's wake and attempted to solicit her case while she was bidding her final farewell to the deceased. While D'Amico and Burchfield deny soliciting business, Gemma steadfastly maintains that the two lawyers blatantly did so, even bragging about their billboard while standing next to her son's casket.

Ironically, the billboard for their law practice reads "We'll Take Care of You Like Family Would."

Rule Number Eight – Don't Tamper With a Jury (Especially One You're Serving On)

San Francisco lawyer Francis Fahy is facing disbarment because, while serving on a jury in 2004, he purportedly cast the deciding vote to end a deadlock – just so that he could return to his law practice.

In February 2008, a State Bar Court judge in California found that Fahy "had corrupted a jury by casting the deciding vote in a medical malpractice case just so he could get back to work."

Judge Lucy Armendariz recommended that Fahy be disbarred, not only because his actions wasted the time of the court, jury members, and lawyers involved and resulted in the case having to be retried, but also because Fahy initially lied that he had cast the deciding vote based on the evidence. The California Supreme Court must still approve this recommendation.

Rule Number Nine – Don't Read Men's Magazines in the Courtroom

Don't get me wrong – I enjoy looking at the swimsuit and lingerie-clad beauties in Maxim magazine as much as the next guy. I just don't do it in court, like Salisbury, N. C., attorney Todd Paris.

Rowan County District court Judge Kevin Eddinger saw Paris reading the magazine as he was hearing cases, and called Paris up to the bench and demanded to see the issue, claiming it had "a female topless model" on the cover.

After questioning Paris about the copy of Maxim, he entered an order finding the attorney in contempt of court for actions that were "grossly inappropriate, patently offensive" and which "interrupted the proceedings of the court and impaired the respect due its authority."

Judge Eddinger then sentenced Paris to 15 days in the Rowan County Detention Center, suspended the sentence for one year of probation, and ordered the attorney to pay a $300 fine and court costs. That turned out to be one very expensive magazine subscription.

Rule Number Ten – Don't Pad Your Resume

In December, the District of Columbia Bar's Board on Professional Responsibility recommended a 30-day suspension for attorney Gregory Hawn.

According to the Legal Times, the second-year associate at Bracewell & Giuliani's Washington office had allegedly falsified his resume and altered his law school transcript while trying to get a job at Mayer, Brown, Rowe & Maw in Los Angeles.

Hawn, who left Bracewell shortly after the charge was made, supposedly claimed to have received a scholarship and academic awards that, in fact, he had not gotten He also somehow managed to raise his GPA almost half a point after graduating from law school.

Rule Number Eleven – Don't Pad Your Bills, Either
As if inflating one's resume weren't bad enough, our final "don't" is an all-too common complaint against lawyers – padding the bill.

There are many instances to choose from in which lawyers have been accused of egregious overbilling – too many, in fact, to choose from.

I'll just mention one that came across my radar recently, involving a New York lawyer who was not only billing various governmental bodies by the hour as their outside counsel, but was simultaneously on the books as a full-time employee for them as well, enabling him to earn a public pension of nearly $62,000 yearly and health benefits for life.

Lawrence W. Reich of Long Island was in private practice with the law firm of Ingerman, Smith, which in 1999 received legal fees of about $2.5 million for representing 5 different Long Island school districts. At the same time, Reich was reported by each of the school districts as a full-time employee.

The arrangement credited Mr. Reich with working 1,286 days in 1999! While Reich characterized the practice as "very common," other lawyers and state auditors have questioned this arrangement. In fact, the Internal Revenue Service has rules against being paid as an employee and as an independent contractor for the same job.

Of course, here in Texas we're not exactly strangers to incidents of questionable and excessive billing. One case in south Texas stands out as a particularly egregious example, involving guardians ad litem (attorneys to appoint to represent the interests of minors in personal injury cases) charging for their hourly services in a product liability case against a tire manufacturer (you can read the entire decision in Goodyear Dunlop Tires North America, Ltd. v. Gamez, at 151 S.W.3d 574, Tex.-App., 2004).

Noting that one attorney had billed 52.85 hours for the day of September 9, 2002, and that another had billed for 24 hours on each of two travel days, the San Antonio Court of Appeals said "We hold that billing time for sleeping and billing in excess of 24 hours for one day is per se unreasonable, as well as unconscionable." One would think that's just stating the obvious, but evidently there are lawyers out there who need reminding.

Well, all this writing has been exhausting. I'm going to take a nap –but I'll be sure not to charge anyone for it.

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