Posts tagged ‘attorney’

Ethics Complaint – The End

By htsyl, 18 September, 2010, No Comment

Well, I am not at all surprised that despite the allegations set forth in the ethics complaint I filed against an attorney who let a client he snared from a women’s shelter work for him for four years without pay has been DISMISSED by the powers that be. This is the body of the letter:

The Office of Bar Counsel has considered your grievance regarding Attorney X. After reviewing the information received and communicating with Jane, Attorney X’s former client, it has been determined that any professional misconduct in this matter could not be proved by “clear and convincing evidence,” which is the standard of proof required in disciplinary cases…Accordingly, the grievance has been dismissed and, as such, this matter is closed. The decision by our office, however, does not affect any private remedies that might be available to you…Thank you for bringing this matter to the attention of this office.

And that, my friends, is that. I have encouraged my friend to continue following up with the Labor Board regarding her back wages as this is a “private remedy” that is available to her and which could put some money in her pocket (unless Attorney X declares bankruptcy). Even if she wanted to retain an attorney to sue Attorney X for malpractice, Attorney X does not carry malpractice insurance! It is highly unlikely that she could even find a lawyer willing to take on Attorney X in a lawsuit, but even if there was a lawyer who practiced in this area, taking a case where there is no insurance policy to go after is a loser.

So, unless the Labor Board catches up with him, and he has to pay Jane some back wages (at the rate of minimum wage because there was no agreement as to what her hourly rate of pay should have been), Attorney X has got a pretty good setup. He gets clients referred to him by the women’s shelter. If they can’t pay for his services and they have any skills at all, he has slave labor at his disposal. He can’t get sued for malpractice because he doesn’t carry insurance and he can’t get disbarred because it’s “too hard to prove.”

Frankly, my impression of the position taken by the disciplinary board is this — if they think they can get away with not pursuing the matter, and if the victim is low profile enough, and the attorney hasn’t done something “outrageous” like stealing client monies from the trust fund, they just put it in the “lack of clear and convincing evidence” shoebox, knowing that the person will have nowhere to turn for a “private” or “civil” remedy, and it’s just over.

It’s just wrong.

Lawyers and Clients and Social Media

By htsyl, 10 July, 2010, No Comment

I would actually like for my lawyer to have a general awareness and understanding of social media (e.g., Facebook, Twitter, LinkedIn, to name a few). This would mean, hopefully, that they were not a total stick-in-the-mud and had some awareness of current events and technology.

That having been said, lawyers need to be very careful about using social media – and you could be the victim of their ethical breaches on the web. If a lawyer or law firm is using social media simply to promote their services in a general way, i.e., basically pointing the consumer to their website for more information, or providing links to articles that educate, that is okay. On the other hand, an individual attorney could certainly end up in social media quicksand by posting confidential information on what they think is a “personal” facebook or other social media account.

If you, the consumer, haven’t already figured out that the Internet in general, and social media sites in particular, are not confidential, you have some catching up to do. But, if your lawyer (in a professional or personal capacity) hasn’t figured that out… A lawyer’s activity on the Internet is governed by the Rules of Professional Conduct…they should not be making promises or guarantees, they should not be bragging about “wins” or griping about clients in any way that could breach confidentiality or other rules. Attorneys are also responsible for the content posted on law firm sites or social media pages by non-attorney staff in their offices.

And another very important point, and this is about YOU! Lawsuits and other legal matters are being won and lost with information about plaintiffs and defendants found on social media sites. THINK before you POST! Your social media life is an open book, and if you are ever involved in litigation, that book will be read. The printed word will draw a picture of you in a court of law that words cannot erase. If you are having any trouble imagining what this could mean, here’s an example. You are separated from your spouse and involved in a divorce, including a fight about the custody of your children. It’s a stressful time in your life, you go out with friends, you party, you drink, you drive, you report your whereabouts and activities to your “friends” on Facebook or Twitter. You claim the life of a monk in court and next thing you know, your social media posts are blown up on a poster at a court hearing! It’s not just between friends, it’s EVIDENCE. Ditto for a worker’s compensation claim, personal injury suit, etc.

If you wouldn’t want to see it on a poster in a courtroom, don’t post it! Simple. Period.

It works both ways — if you have doubts about your lawyer, or you are looking for a new lawyer — check them out on social media.

That’s it for now – don’t forget to follow us on Twitter @htsyl.

What Happened With Miranda?

By htsyl, 3 June, 2010, No Comment

You might have missed it this week, what with the official start of summer and the oil gusher in the Gulf, but the US Supreme Court handed down a big decision affecting your Miranda rights on June 1st. In a case called Berghuis v. Thompkins, the Court decided that you must expressly invoke your Miranda rights, and if you don’t, you have waived them. In other words, when the cops say “you have the right to remain silent and the right to an attorney even if you can’t afford one…” you have to SAY “I don’t want to talk” or “I want to remain silent” or “I want a lawyer” in order to take advantage of your Miranda rights. After this, the police must stop questioning you (or palling around with you or using whatever technique they have been using to get you to talk up to that point).

This case was decided with a 5-4 vote, with Justice Kennedy writing the opinion and Justice Sotomayor writing the dissent (joined by Justices Stevens, Ginsburg and Breyer). One of the reasons that Justice Sotomayor disagreed is that she thought it was counterintuitive to say that someone is “required to speak” in order to “remain silent.” It is a contradiction, but let’s take a lesson from the decision and the contradiction.

Obviously, it is important that you know your rights. And it is also easy to assume that Miranda rights don’t apply to you and never will. That’s just not true…it might not be you, but it might be someone in your family or a friend. So, LISTEN UP – here is the lesson. SPEAK UP AND INVOKE YOUR RIGHT TO REMAIN SILENT, SAY YOU DON’T WANT TO TALK, SAY YOU WANT A LAWYER!

Why? You are innocent – why not talk, help them out? What you probably don’t know is that the police are allowed to use all kinds of techniques to get you to talk, they can wear you down by going on for hours, they can promise you things if you just “confess a little,” they can lie to you (yes, it’s in the manual). At some point, you may even believe you did do something wrong, and there you go sliding down that slippery slope, when all you had to do to avoid it was to not talk. It may get you locked up for a while but it will be worth the wait. The convicted murderer at the center of the case at hand was being “mostly silent” during his interrogation and then the police asked him if he “wanted to pray for that boy he shot down” and he said “yes.” Bingo – confession!

Remember, this is not a discussion about whether this guy is guilty of murder – this is a question of what his rights were – what your rights are. Don’t forget this — You have the right to remain silent – BE SILENT…You have the right to an attorney even if you can’t afford one – ASK FOR AN ATTORNEY. One more reminder – if you forget this advice and start talking and then you change your mind – speak up at any time and invoke your rights – you can get them back and they have to stop questioning you.

It’s simple – you can deal with whether you have a good attorney later.