Philadelphia Attorney Suspended After Affair with Client
By Order dated February 13, 2023, Philadelphia attorney Pearlette Vivian Toussant was suspended for one year on a Joint Petition in Support of Discipline on Consent after acknowledging that she engaged in an affair with a client and acted contrary to the client’s interests when it ended.
Ms. Toussant began the affair with a client after the client retained her firm to seek recovery for damages to her home caused by construction on an adjacent lot. At one point, she sent her client/lover a text message stating, “I read the ethical rules and I think we are okay.” However, Rule 1.8(j) of the Rules of Professional Conduct does not allow an attorney to engage in a sexual relationship with a client unless the relationship preexisted the representation.
Eventually, the client sought to end the personal relationship. Ms. Toussant told her partners that the client had elected to terminate the representation of the law firm which was not true. She also delivered the client’s file and papers to her house, leaving an envelope containing them in an unsecured outside location. The client testified that she believed that papers were missing from the envelope and might have been taken by a third party, possibly related to her next-door neighbors who were the opposing party.
Ms. Toussant agreed that her conduct violated RPC 1.8(j) and also RPC 1.7(a)(2) (concurrent conflict of interest); RPC 1.6(d) (make reasonable efforts to prevent the inadvertent or unauthorized disclosure of client information); RPC 1.16(a) (a lawyer shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct); RPC 1.16(d) (upon termination, take steps to protect the client's interests); and RPC 8.4(c) (conduct involving dishonest, fraud, deceit, or misrepresentation).
The Joint Petition requested that a three-member panel of the Board approve a resolution under which Ms. Toussant will be suspended from the practice of law which it did. The Supreme Court accepted the recommendation and suspended Ms. Toussant for one year.
Delaware Lawyer Suspended After Allowing Investigator to Contact Juror
A Delaware lawyer has been
suspended after an investigator he hired contacted a juror, and he lied about it to a court.
By
Order dated January 23, 2023, the Supreme Court of Delaware accepted a report of the Board on Professional Responsibility and suspended attorney Andre M. Beauregard.
Beauregard was working as criminal conflicts counsel for the Office of Conflicts Counsel. He was engaged to represent a defendant convicted of murder. Beauregard filed a motion for a new trial, alleging possible juror bias stemming from a connection between a juror and Bailey’s co-defendant. He hired a private investigation (“PI”) firm to look into possible connections between the juror and co-defendant. The PI firm informed Beauregard that the juror and codefendant had twenty-five Facebook friends in common and proposed contacting twenty-two of them. They later inquired as to whether it would be permissible to interview the juror. In an exchange of multiparty emails, Beauregard replied, “Sure he can,” and a member of the PI firm proceeded to contact the witness. Beauregard maintained at his disciplinary hearing that his response was only intended to authorize interviewing the Facebook friends and that he did not intend to approve contacting the juror.
Six days later, an investigator called Beauregard and reported that he had interviewed the juror who was willing to speak with Beauregard directly. Beauregard testified that he was shocked that the investigator had contacted the juror and directed him to shut down the investigation and have no further contact with the juror. The firm sent Beauregard a final report which included information on the contact with the juror. He did not report to the court or the prosecution that a juror had been contacted.
Weeks later, Beauregard filed a motion seeking more time for investigation. During a hearing on the motion, the judge instructed Beauregard that investigators were not to contact jurors. At that point, Beauregard revealed to the court that contact with a juror occurred but stated that it was done by the investigator without his knowledge or approval. The Board on Professional Responsibility found that this statement was false.
The Board on Professional Responsibility found that Beauregard had violated RPC 5.3(a) [reasonable effort to assure compliance with the RPC], 3.5(c) [prohibiting communication with a juror], 5.3(c)(2) [failure to take action to correct violation], and 8.4(c) [conduct involving dishonesty, fraud, deceit, or misrepresentation]. The Supreme Court affirmed these findings and ordered Beauregard suspended for two years with the opportunity for limited reinstatement after one year to serve as counsel for indigent defendants with the Office of Conflicts Counsel program.
Alex Jones Lawyer Escapes Sanctions
In
February, we reported on the suspension of an attorney for controversial radio host Alex Jones, based on his careless release of confidential information in response to a discovery request. Another of Jones’s lawyers fared better.
In a
decision dated January 17, 2023, Judge Barbara Bellis of the Superior Court of Connecticut determined that she would not order the suspension of Texas lawyer F. Andino Reynal as she had for Connecticut attorney Norm Pattis. However, she did require him to notify any Connecticut court of her findings of an ethics violation if he wants to handle a case in the state in the future.
Reynal provided opposing counsel with links to information containing confidential documents subject to a protective order, including medical records for family members of victims in the 2012 mass shooting at the Sandy Hook Elementary School in Newtown, CT. Reynal received the records from a bankruptcy lawyer who had gotten them from Pattis. When the opposing counsel notified Reynal that he had apparently disclosed confidential documents, Reynal told him to disregard the link and ordered his paralegal to deactivate it. He failed to request that opposing counsel destroy or return the improperly disclosed information, to report the disclosure to Pattis, or to file a motion to remediate the disclosure. After a waiting period, opposing counsel deleted the confidential records but used information from the disclosure in his cross examination of Jones.
Judge Bellis found that Reynal violated the Rules of Professional Conduct by the careless disclosure but found several mitigating factors, including that he expressed remorse, cooperated in the ethics investigation, traveled to Connecticut for the ethics hearing, filed a motion for a protective order after the cross-examination, had no prior discipline, and had no dishonest or selfish motive.
Reynal is not home free, however. On January 13, a Texas judge issued an
order finding that Reynal was subject to sanctions in a related Texas defamation case for engaging in a bad faith scheme to disrupt the litigation with an abusive and frivolous bankruptcy filing and a groundless removal.
Law Firm Sues Departed Associate for Billable Hours Shortfall
The Supreme Court of North Dakota
agreed with a law firm that it could sue a former associate to recover salary paid to him during periods when they fell short of the firm’s billable hour requirements – during the pandemic, no less.
The Bismarck, ND firm Larson Latham Huettl sued its former associate Travis Iverson to recover salary paid to Iverson during his two-year stint as an associate for the firm. The firm relied on a contract provision which stated:
“In the event that Associate bills out less than the base quota for a three-month period, the Associate’s salary will be reduced appropriately at the discretion of LLH in order to make up for any discrepancy. Any discrepancy where the actual hours billed is less than the base hours required will be considered to be a debt owed by Associate to LLH at the end of the calendar year or at the termination of employment.”
After Iverson terminated his employment with the firm, LLH sued him for $35,772.63 in salary claimed due to insufficient hours. Iverson raised a number of defenses, including that the contract was unconscionable, that the firm waived its claim by failing to reduce his salary for underperformance at regular intervals, that it was impossible for him to perform, as his contract limited him to working only for LLH, and the firm did not assign him enough work to meet his quota.
The district court brushed aside these defenses and granted summary judgment for the law firm. The district court noted that there was “some level of procedural unconscionability” because LLH drafted the document and asked Iversen to sign it after he had already begun his employment but found no unconscionability in the fact that the firm controlled the work assigned to Iverson. “Having requirements for one’s employees is not unconscionable,” it noted. “Rather, LLH was seeking to make Iversen’s position profitable for the firm.” It dismissed the argument that the firm did not supply Iverson with clients to meet his billable hour requirements by noting, “There is nothing in the contract which states the partners would provide clients for Iversen.”
In an
opinion dated February 16, 2023, the Supreme Court of North Dakota upheld the district court's decision.
Top Tech Stories: Are the Robot Lawyers Coming?
Last month, we profiled the
ABA Journal’s
Top Ten Legal Stories for 2022. This month we look at the
Journal’s
Top Four Legal Tech Stories. Compiled by New York lawyer and legal technology evangelist at MyCase
Nicole Black, they are:
1. Continued acceleration in legal tech funding and acquisitions: A round of corporate acquisitions and high funding initiatives indicate that legal tech is a fast-growing and attractive field.
2. Layoffs and pivots to ward off the looming recession: Despite the surge in technology, the field remains risky for both investors and employees as competition leads to layoffs and companies leaving the field.
3. Increased emphasis on legal technology ethics and competence: As technology reaches further into the core of legal practice, lawyers face new ethical challenges, and continuing education geared to the new realities is much in demand. The Pennsylvania Bar Association’s
Committee on Legal Ethics and Professional Responsibility led the way with
Formal Opinion 2020-300 which addressed issues such as online information storage, virtual offices, communication through online resources, encryption, and cybersecurity. New York
became the first state to require lawyers to complete a unit on cybersecurity as part of their continuing education requirements.
4. The robots are coming: The biggest story, in terms of the volume of coverage, seems to be the rise of robot lawyers, or more specifically, artificial intelligence programs that simulate legal reasoning.
Much of the attention has centered around
ChatGPT 3.5, a product of
OpenAI which uses an advanced neural network machine-learning model to create written passages from simple text prompts. ChatGPT
earned a passing (if mediocre) grade on a law school examination, and it was marketed for the purpose of
representing litigants in traffic court until the creator got cold feet in the face of unlicensed practice threats. To get an idea where ChatGPT 3.5 is at,
check out what happened when two lawyers asked it to brief the famous California
“Bees are Fish” case.
Pro Bono Lawyers Help Free Man Wrongfully Imprisoned for Twenty-Eight Years
Due to
the efforts of two Bryan Cave Leighton Paisner lawyers working pro bono, a Missouri man
is free after spending twenty-eight years in prison for a crime he did not commit.
February 14th was a sweet Valentine’s Day for
Lamar Johnson when Circuit Court Judge David Mason of St. Louis, MO
granted a motion to set aside his 1995 conviction on murder charges. Bryan Cave attorneys Charles A. Weiss and Jonathan B. Potts served as special counsel for St. Louis Circuit Attorney Kim Gardner in proceedings to vacate the conviction. The Midwest Innocence Project spearheaded the effort, and the law firms Morgan Pilate and Lathrop GPM also worked on the case for Johnson.
Gardner sought to free Johnson as early as 2019, but state law at the time did not give her standing to do so, and state Attorney General (now U.S. Senator) Eric Schmitt resolutely opposed the effort. But Missouri legislators amended the statute in 2021, and Johnson became the second longtime prisoner exonerated under the new law. Judge Mason pointed to dramatic testimony at the hearing in which two other men confessed that they committed the murder without Johnson’s involvement.
In a
statement to the
Kansas City Star, Johnson’s lawyers said, “It took an innocence organization, three law firms, the circuit attorney, both chambers of Missouri’s legislature and the governor’s signature on a law passed for him, to free Lamar Johnson. That is intolerable. That is not justice. We can and must do better.”
At the beginning of each April, new Disciplinary Board leadership takes the reins of this prestigious organization. As my chairmanship nears conclusion, I take immense pride in reflecting upon the progress and achievements of the past year. These past twelve months have provided myriad occasions for both evaluation and innovation. From an annual fee waiver application for those experiencing extreme financial hardship to new avenues for lawyer education and professional development, the Board and its staff fervently have risen to each challenge. As the Board returned to safely holding in-person proceedings, Board staff and Hearing Committee Members once again pivoted to meet the needs of a community transformed by the COVID-19 pandemic and to provide further public access and transparency to the Board’s work.
