Berks County attorney, David John Delcollo, Esquire, was arrested last week and charged with theft and related charges for allegedly accepting $1,900 from Julio Arocho, an inmate at Berks County Prison to represent him in a criminal action, but then not providing any services. Mr. Delcollo was arraigned before Judge Alvin B. Robinson, and bail was set at $10,000. An emergency motion to reduce bail was granted, and Mr. Delcollo remains free pending further court action.
Josh J.T. Byrne, Esquire, of Swartz Campbell’s professional liability department, has been appointed Vice Chair of the Pennsylvania Bar Association’s Professional Liability Committee.
Los Angeles based United States District Judge Otis D. Wright, II, has issued an order assessing $81,320 in legal fees against Prenda Law, Inc., four lawyers, John Steele, Paul Hansmeir, Paul Duffy, and Brett Gibbs, and other related companies. Judge Wright’s sanction order states he will ask the US attorney’s office, Internal Revenue Service and federal and state bar associations to look into the operations of Prenda Law Inc. and its associated attorneys.
Prenda accused individuals of illegally downloading pornographic videos, and then offered to settle for just under the cost of a bare-bones defense. Judge Wright essentially found this was a scam to shake down individuals by making an offer they could not refuse.
A number of Star Trek references appear in the opinion, including a quote from Spock: “The needs of the many outweigh the needs of the few.” As well as the directive: “though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. . . [t]he federal agency eleven decks up [the U.S. Attorney's office] is familiar with their prime directive and will gladly refit them for their next voyage.” Judge Wright states: “copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry.” Judge Wright requested Morgan Pietz of The Pietz Law Firm in Manhattan Beach, Calif., who brought the matter to Judge Wright’s attention, file a report within 14 days listing every state and federal bar the attorneys are admitted to practice in front of, and every judge before whom they have cases.
Attorney Roger A. Giuliani has a history of problems. In 2004, a Nassau County, New York, judge awarded $2 million in punitive damages to a man who responded to Mr. Giuliani’s advertisement for a living trust and lost $2,000, when Mr. Giuliani allegedly sent a non-attorney to the home of Gerald Campbell to execute a living trust. It was alleged that Mr. Giuliani and other defendants pocketed the money without providing the service. More recently, Mr. Giuliani has been accused of engaging in a mass market mail campaign targeting senior citizens for estate planning legal services. Once the offer for legal services was accepted, Mr. Giuliani referred his clients to financial services representatives. Following the referrals, four clients became the victim of theft and fraud by the financial services representatives.
The lawsuits by the four clients of Mr. Giuliani led to a lawsuit by American Guarantee and Liability Insurance Company against Chicago Insurance Company to determine coverage. Two of the victims filed their claims while Mr. Giuliani was insured by Chicago Insurance. The other two victims filed their claims while Mr. Giuliani was insured by a subsequent insurer, American Guarantee. Both policies for Mr. Giuliani were “claims made” policies. American Guarantee sought to hold Chicago Insurance responsible to cover the claims made by the two later claimants because the latter claims were “same and/or related” to the first two claims. The New York Supreme Court, New York County, published an opinion on April 25, 2013, holding the claims were not the same or related. The court noted “a claims-made policy is designed to protect the policyholder during the life of the policy upon ‘notice to the carrier within the policy period.’” The court noted that claims made policies permit an insurer to be certain “that, when the policy period ends without a claim having been made, the insurer will be exposed to no further liability.” The court found there were “substantial differences between the victims, including the amounts of the claims and the fact the financial services professional who allegedly committed the fraud was not the same in each circumstance.”
While the coverage dispute in this matter is interesting, the legal malpractice avoidance take away is the idea that an attorney may be sued for referring their client to a financial services professional. This is not an isolated case. Attorneys are frequently sued because the financial service professional they referred their client to turned out to be incompetent, or worse still, criminal.
In August of 20012, the former global chief information officer of the Chicago law firm Mayer Brown, David Tresch was arrested on charges of embezzlement. Mr. Tresch was arrested for an alleged $4.8 million billing and kick back scheme. It was alleged Mr. Tresch was paid about $2 million in kickbacks by Nicholas Demars who owned a firm supplying contract employees and technology services to the law firm. On Monday, Mr. Tresch entered into a guilty plea under a deal with prosecutors. According to the plea deal, the law firm paid Mr. Dumars firm $7.6 million, and Mr. Tresch received kick backs of over $1 million.
The recent 30 month suspension upon consent of Damon K Roberts, Esquire (Former Philadelphia City Council candidate) is a cautionary tale for all attorneys regarding when representation begins. On August 7, 2009, Mr. Roberts signed a representation agreement with a client to represent her in negotiating a loan modification on a loan foreclosure action after the bank received default judgment on July 30, 2009. The client agreed to pay Mr. Roberts a $5,900 legal fee, and agreed to pay an initial $1,500 deposit. The written fee agreement stated “upon signing the agreement, you become my client.” Despite entering into the fee agreement, Mr. Roberts did not move to open the bank’s default judgment within 10 days, and did not inform the client that he would not file a motion until he received the $1,500 deposit. Mr. Roberts did not file a motion on behalf of his client until after he receives the $1,500 deposit in September of 2009. On September 24, 2009, Mr. Roberts filed a petition to open judgment and falsely alleged the default judgment was brought to his attention on September 4, 2009.
Despite the delay by Mr. Roberts, the court granted the petition to open and granted 20 days to file an answer to the bank’s complaint. Mr. Roberts filed a timely answer. On April 14, 2010, the bank filed a motion for summary judgment which Mr. Roberts received, but did not inform his client about. While the motion for summary judgment was pending the bank forwarded a loan modification package. Mr. Robert’s client completed the loan modification paperwork and gave it to him, but he did not submit the completed package to the bank. On May 24th 2010, the Court entered an order granting the bank’s summary judgment. On June 2, 2010, Mr. Roberts filed a memorandum of law in opposition to the motion for summary judgment. Due to Mr. Roberts’ lack of action on behalf of his client, the client was forced to enter into bankruptcy in order to save her home.
The disciplinary opinion also includes Mr. Roberts’ failure to comply with continuing legal education requirements, and his mishandling of an estate matter and other foreclosure matters. Mr. Roberts was criticized for instructing his paralegal not to inform a client that her home and been sold at sheriff sale until after the client had paid. Mr. Roberts did not take any action to set aside the sheriff sale and did not discuss with the client the options available to accomplish her objective to retain her home. The disciplinary opinion also relates anissue where Mr. Roberts took over representation from another attorney, contingency fee action, but did not inform the attorney when the matter had settled. Mr. Roberts was also guilty of commingling funds between his operating account and his IOLTA account.
The Disciplinary Board also listed as an aggravating factors, that Mr. Roberts was a defendant in “in a myriad of civil lawsuits and criminal actions.” The Disciplinary Board listed Mr. Roberts’ community action as a mitigating factor. The Disciplinary Board noted that “[t]he Supreme Court often imposes a suspension of one year and one day on attorneys, like Respondent, who have no record of discipline, but engage in serial neglect coupled with misrepresentation to clients.” The Disciplinary Board recommended that based upon the severity of Mr. Roberts’ disciplinary violations, a 30 month suspension was appropriate “to protect the public from this patently unfit practitioner.”
Most of the disciplinary violations by Mr. Roberts are self-evident. From a legal malpractice avoidance standpoint, the most interesting issue is perhaps the duty owed by Mr. Roberts after he had signed up his client, but before she paid her initial payment. Mr. Roberts had stated that he represented the client, and did not put any limiting language with respect to the necessity of the initial payment. Mr. Roberts did not take action within 10 days after the default judgment had been entered because he had not received the initial payment. Attorneys must be very careful of the duties they enter into prior to receiving payment, as well as the duties they owe even if clients do not pay them. Even though an attorney has not been paid, a duty may be owed.
We have previously shared a number of web resources on legal malpractice avoidance. The following are some readily available web resources on legal malpractice in general:
These materials, apparently course material from the New York County Lawyers’ Association, include a very general treaties on legal malpractice, as well as specific information for investment and accounting professionals. While the materials are focused on New York law, they do provide a very good overview of legal malpractice in general.
The website Justia.com provides a short overview of legal malpractice without any citations for case references. Of considerably more usefulness is American Bar Association’s 50 state survey legal malpractice law. These materials, however, are available only to ABA members.
The news last month that a Texas district attorney and his wife had been assassinated was sufficiently frightening in and of itself, especially when coupled with the assassination of the prosecutor’s deputy two months previously. However, in what can only be described as a bizarre turn of events, it appears that Dist. Atty. Mike McLelland and his wife may have been killed by a Justice of the Peace who had lost his position due to a prosecution by Mr. McLelland. Eric Lyle Williams is in custody, and his wife, Kim Lene Williams has been charged with capital murder. Mr. Williams has not yet been charged with murder, but was in custody due to an alleged threatening e-mail he apparently sent. Mr. McLelland, and his deputy Mark E. Hasse, who was murdered in January, were the prosecutors who pursued a case against Mr. Williams last year in which he was accused of stealing computer monitors from a county office building. Mr. Williams was removed from office and his law license was suspended. We have previously blogged on what appears to be an increase in courthouse violence throughout the country.
Rutgers senior vice president and general counsel, John B. Wolf, Esquire, has resigned from his position. It was originally announced that he planned to remain as an attorney for the University earning $280,775 a year. Following complaints about the decision to allow Wolf to remain as a university attorney, he resigned from the University yesterday. Wolf was one of the people who saw the videotape of Coach Mike Rice’s egregious behavior last year, but recommended against firing Rice at the time.
A recent Law360 article (subscription required) includes analysis by Swartz Campbell partner, Josh J.T. Byrne of the Barrick v. Holy Spirit decision and what might happen to the applicability of the work product doctrine for attorney-expert communications following review by the Pennsylvania Supreme Court.