Posts Tagged ‘unethical conduct’

More Follow-up on “Handling Unethical Attorney Conduct: An Example”

Friday, December 9th, 2011

Partly because the case is from the jurisdiction in which I have been licensed since 1976 and I know several of the players, but mostly because it provides an excellent illustration for discussions of how paralegals should handle unethical conduct by their attorney, this blog has been following the saga of ethical charges against Verrill-Dana, one of Maine largest law firms. According to today, Maine’s highest court has ruled that six partners at Verrill Dana violated ethics rules by failing to have procedures in place to monitor a lawyer after questions arose about his handling of a client account, but upheld a finding that the six partners didn’t violate ethics rules by foot-dragging in reporting misconduct.

The intricacies of this ruling are interesting in their own right, but only marginally so for this blog which is more concerned with how the saga started:

A paralegal and a secretary were first to discover the problem, according to the opinion. The paralegal noticed in late 2006 that Duncan had prepared a check register for a client showing a payment to Verrill Dana, but the check had been made payable to Duncan. The paralegal brought the matter to the attention of Duncan’s secretary, who investigated and found 14 such discrepancies.

The secretary finally told another lawyer in the firm about the discrepancies in June 2007, spurring Warren to launch an investigation of the client account. When confronted, Duncan said the checks written to himself represented attorney fees, and he offered to resign. Warren spoke to the executive committee about Duncan’s resignation offer; it was declined. Warren did require Duncan to repay $77,500 to the firm, however, and he complied.

The court’s opinion tells the end (or the near end) of the story for the attorneys involved. Check out the previous posts here for the beginning including the story of the paralegal and secretary who “did the right thing” when confronted with an attorney for whom they worked doing the wrong thing.

Following up on “Handling Unethical Attorney Conduct: An Example”

Thursday, December 30th, 2010

A short while back I posted “Handling Unethical Attorney Conduct: An Example,” a post that came close to setting a record for views, pingbacks, and views for this blog. That post contained excerpts from a news story regarding an ethics proceeding involving six members of a Portland, Maine, firm, that emanated from a discovery made by a firm paralegal regarding unethical conduct by one of the firm’s top attorneys and disclosed by that attorney’s legal secretary. The proceeding was against six members of the firm who where charged with failure to promptly investigate and report the attorney’s unethical conduct, but I focused on the dilemma faced by paralegals and other legal staff when they discovered unethical conduct on the part of the attorney for whom they worked. I ended up stating, “Hence my modification of my original advice [given in The Empowered Paralegal: Effective, Efficient and Professional: a paralegal in this position should consult an outside attorney not only if they decide to report, but in determining whether a report should be made. This case, whether or not the allegation is true, demonstrates the folly of seeking that advice within the firm.”

Today’s report from the Portland Press Herald and states that all six of the attorneys were cleared of ethical violations in that the court found they had reported the original attorney’s violations in a timely manner. Once again, though, my focus in on the employees who made the initial discoveries. I am including here the portion of court’s order that describes their experience. It may be helpful to put yourself in their position and consider now what you would do as you may indeed find yourself in their position at some time. I’ll try to post something a bit more upbeat tomorrow so the year does not end on this.

From the court’s decision:

In late 2006, a Verrill Dana paralegal, reviewing a bank statement, noted a discrepancy between the check register for an account managed by Duncan for Janice Thomas and the bank statement of that account. The check register indicated a payment to Verrill Dana. The bank statement, with a copy of the face of the check appearing on the back, indicated a payment to Duncan.
This paralegal had been filling in for Ellie Rommel, the regular secretary for Duncan in the private clients group. Rommel also was the secretary to another attorney working in the private clients group, Gregory L. Foster. Foster was a counsel to the firm and usually worked in the office two days each week. Rommel had a very good professional relationship with, and high respect for, both Duncan
and Foster.

In January 2007, the paralegal told Rommel of the discrepancy she had discovered between the check register and the bank statement. Rommel was extremely surprised by this disclosure. She assumed, initially, that the discrepancy would be based on an error in entry and not indicative of any impropriety. She then checked banks statements against the check registers going back to 2003.

Over that period, she discovered fourteen checks that Duncan, using his power of attorney authority, had written to himself from the Janice Thomas account. The check registers indicated that each of these checks had been written to Verrill Dana. The faces of the checks were reproduced on the bank statements.Therefore, confirming the party to whom the check was written, and comparing it with the check register, was a relatively simple process. Rommel was shocked and greatly disturbed by this discovery. To her, it appeared that Duncan had been embezzling funds from the Janice Thomas account.

However, considering Duncan’s impeccable reputation in the firm, and his very good professional relationship with her, Rommel hoped that there would be some legal and proper explanation for these discrepancies. She was unsure, however, to whom she should disclose her discoveries, to seek an explanation. She decided that she did not want to seek an explanation directly from Duncan because the facts, in her mind, looked like he had committed crimes. Duncan had been having some other health issues at the time, and Rommel was concerned that if she was correct that these facts indicated embezzlement, and they were disclosed, Duncan might be driven to suicide, a tragic event in itself, and one that would have tragic consequences for Duncan’s family and the firm.

Knowing these facts, and having no one to discuss them with, was a cause of considerable anxiety and stress for Rommel, making it more difficult to confidently do her job and live her life. These difficulties were enhanced when she observed that Duncan was viewing pornographic materials on his computer, sending and receiving e-mails with a sexual content, in violation of firm policy, and engaging in an affair out of the office with another individual at times when Rommel was aware that Duncan was billing some clients for time spent on their accounts.

Over several months, Rommel’s stress level and anxiety grew as she knew, but did not disclose, this information. In May, Rommel resolved to leave the firm and gave notice that her last day would be June 15, 2007. Rommel also began seeing a therapist. The therapist advised Rommel that she needed to disclose the information to someone for her own good and peace of mind and for the good of the firm.

Ultimately, in early June 2007, Rommel disclosed what she knew to Greg Foster. She made the disclosure by meeting with Foster, advising him that she believed that Duncan was improperly writing checks to himself from the Janice Thomas account, and giving Foster a file of the materials that she had gathered comparing the bank statements and the check registers. She stated that she believed that Duncan was embezzling money from the client.

Foster reported it to the firm’s managing attorney who eventually met with Rommel:

Following this investigation, Warren met with Rommel on June 13, 2007. At this meeting, he thanked her for providing this information and indicated that he would be addressing the matter appropriately with Duncan. Rommel testified that Warren complimented her, stating that her actions “took a lot of courage.” They also discussed Rommel’s status with the firm, whether Rommel might qualify for disability payments, and whether she should rescind her resignation. There are differences in the testimony regarding the extent to which the issues of disability payments and rescinding the resignation were of significance in the discussion. However, as the parties recognized at closing argument, these differences are not material to the issues the Court must resolve.

The outcome of the June 13 meeting was that Rommel’s resignation was not rescinded, there was a commitment to explore the issue of whether disability payments would be pursued further, and because of her emotional state, Rommel was excused from having to appear at the firm for her last two scheduled days of work. Warren also advised Rommel that, although she was leaving the firm, he would keep her apprised of developments relating to Duncan.

What should a paralegal do when an attorney deletes research given by paralegal prior to giving information to judge?

Monday, August 31st, 2009

One visitor to this blog arrived through the Google search “what should a paralegal do when a attorney delete research given by paralegal prior to giving information to judge.” Several posts here have discussed ethical questions that arise for a paralegal when they discover that an attorney is engaged in unethical acts. However, it is unclear in this case that the attorney is engaged in any unethical conduct. While the attorney does have an obligation not to commit fraud or other dishonesty with regard to the court, it is not necessarily required that she provide the court with all of the information discovered during research of an issue. There are often strategic or tactical reasons for an attorney not to include research in a memorandum or brief filed with a court that do not violate any ethical obligation owed by the attorney to the court.

The main thing a paralegal should do in this circumstance is to make sure there is a record showing that he did his work, found the information and provided it to the attorney. The attorney is always the final arbiter of what is and is not included in documents filed with the court. They must sign those documents and in civil proceeding in federal court are subject  to sanctions under Federal Rule of Civil Procedure 11. Additional information would be necessary to assess whether in any particular case the paralegal should do more.

Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the project at hand. I discuss this in The Empowered Paralegal in the context of trial tactics:

One key to managing your relationship with your attorney is a mutual understanding of what each of you does as part of the legal team. Understanding your attorney’s use of trial tactics is also an essential tool to assisting in building a better trial with that attorney. Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the trial. However, trials are more than just the application of rules of procedure, rules of evidences, statutes and case law to a set of facts.

Just as important as knowing the rules and law is knowing how and when to employ them in the context of a particular trial. While knowledge of the rules of evidence will tell the attorney she can object to a question, she must use your preparation and her judgment to determine whether to object.  At each opportunity to object she must determine instantly

  • whether an objection is likely to succeed because an unsuccessful objection may create the wrong impression in the jury’s mind,
  • whether repeated objections, even if successful, will cause a jury to think her client has something to hide,
  • whether a successful objection will later prejudice her ability to use similar evidence favorable to her case,

and many other potential ramifications.

The trial attorney must make tactical use of all the weapons available. This can only be done if the case is thoroughly prepared; the facts, law and rules all known and the evidence all available. There are several excellent books devoted to effective trial tactics, a topic which cannot be covered comprehensively here. However, there are several general tactical considerations which will be helpful to you in understanding what your attorney is doing and how you can most effectively assist the attorney.