Monthly Archives: September 2014

Hey Smart*@%! Did You Write That *&%#$ Email?

Electronic communications are the literary equivalents to a pie in the face – funny to some, not so funny to others – it is after all in the eye of the beholder.  If you are one of those lawyers who should have key locks on either side of the “Send” button on your smart phone, the you may want to take heed of on onslaught of recent disciplinary decisions in which the courts seem to fall pretty uniformly in the “not so funny” category when reviewing lawyer-generated electronic communications.  Lest you believe there is a line between communications initiated in your personal capacity, as opposed to those sent in a professional capacity, the cases would indicate that the line falls somewhere between ill-defined and non-existent from the court’s point of view.  To the contrary, it would appear that the courts are pretty uniform in their expectation that ALL lawyer communications remain within the happy confines of civility.  The following is a brief exemplars of things better left unsaid and the sanctions that they warranted:

  1. One year suspension:  For attorney’s conduct adversely reflecting on fitness to practice law in sending text messages suggesting that a student law clerk perform sexual favors for him, indicating that her continued employment depended on her compliance with his demands, repeatedly insisting that he was not joking, and pressuring her to travel out of state with him even after being rebuffed.  Go figure – telling a law clerk that “if you show up at 11 you know what’s expected” falls in the “not funny” basket.  This snarky attorney was found to have caused harm to the dignity and reputation of legal profession as a whole in violation of Rule 8.4(h).  Lake Cty Bar Assn. v. Mismas, 11 N.E.3d 1180 (Ohio, 2014).
  1. Three month suspension:  For an attorney who sent “sarcastic and sophomoric” comments to opposing counsel such as:  “Did you get beat up in school a lot?  Because you whine like a little girl.”  “Why don’t you grow a pair.”  And my personal favorite:  “This will acknowledge receipt of your numerous Emails, faxes and letters … In response thereto, Bla Bla Bla Bla Bla Bla.”  In the Matter of Stolz, New Jersey Disciplinary Review Board, DBR 13-331 (2014).
  1. Four month suspension:  For attorney’s misconduct while serving as county district attorney in sending series of text messages that attempted to persuade a domestic abuse crime victim and witness to enter into sexual relationship with him while he was prosecuting the perpetrator of the domestic crime, in telling a social worker who was a witness in a termination of parental rights case that attorney was prosecuting that attorney would not “cum” in her mouth and that he wanted trial to be over because he was leaving on trip to Las Vegas, where he could have “big boobed women serve [him] drinks,” and in voicing his approval to another social worker during a court proceeding of a reporter’s “big beautiful breasts.”  The Wisconsin Supreme Court properly determined that these and other comments were “sufficiently boorish” enough to constitute sanctionable misconduct.  In re Disciplinary Proceedings against Kratz, 851 N.W.2d 219 (Wisconsin, 2014).
  1. One-year suspension:  For attorney whose conduct, sending sexually explicit text messages to a client he was representing in divorce case (including a nude of himself), violated rules prohibiting representation if a lawyer’s personal interests will materially limit his ability to carry out appropriate action for the client, prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship, and prohibiting conduct that adversely reflects on the lawyer’s fitness to practice law. Rules of Prof.Conduct, Rules 1.7(a)(2), 1.8(j), 8.4(h).  Discilinary Counsel v. Detweiler, 989 N.E.2d 41 (Ohio, 2013).

There is so much more that could be said on the subject, but I’ve got an email that I am dying to pop off to an opposing counsel right now – on second thought, maybe I’ll type it on carbon paper first, mail it to myself via snail mail, read it for my own personal amusement and properly dispose of it.

Ronnie Richter and Eric Bland

Bland Richter Achieves $400K for CofC Basketball Coach

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Picture credit: The Post and Courier

Fired College of Charleston coach Doug Wojcik had been paid $400,000 to settle potential claims against the school. Wojcik was fired last month amid allegations of verbal abuse.

As a part of this settlement Wojcik has agreed not to sue the school.

“The matter has been resolved and it’s good for everyone involved that we’ve come to a resolution,” Bland said.

To read more articles on this story and comments from representing attorneys, Bland Richter click the following links:

Greenville News: http://www.greenvilleonline.com/story/sports/2014/09/16/charleston-ex-coach-reach-settlement/15750025/

Fox News: http://www.foxsports.com/college-basketball/story/charleston-ex-coach-wojcik-reach-400-000-settlement-091614

Tulsa World: http://www.tulsaworld.com/ap/sports/college-of-charleston-ex-coach-doug-wojcik-reach-settlement/article_a3a85e87-5b6b-50ca-b0d2-8a4b709e897c.html

Washington Times: http://www.washingtontimes.com/news/2014/sep/16/charleston-ex-coach-reach-400000-settlement/?

WSOCTV: http://www.wsoctv.com/ap/ap/south-carolina/charleston-ex-coach-reach-400000-settlement/nhNc2/

The Houston Chronicle: http://www.houstonchronicle.com/sports/article/Charleston-ex-coach-reach-400-000-settlement-5758848.php

Coach Wojcik and College of Charleston reach settlement – Bland Richter Comments

Coach Wojcik and the College of Charleston reached a settlement Tuesday, September 9, 2014 after the former College of Charleston Head Basketball Coach had been accused of verbally abusing his players and athletic department staff members in two independent investigations.

“After a full review of the facts relating to the allegation of physical abuse made by a player,” said Ronald L. Richter Jr. of Bland Richter, “the College made no finding of physical abuse, but concluded physical contact occurred that was offensive to the player. This will be the last public statement the College or Doug Wojcik makes on this matter.”

The settlement ends two months of national headlines and turmoil within the basketball program that started with a month-long investigation back in May.

“The matter has been resolved and it’s good for everyone involved that we’ve come to a resolution,” said Eric Bland, Wojcik’s attorney. “I think everyone needs to move on and begin a new chapter.”

To read the rest of the story written by sports reporter, Andrew Miller, please visit: http://www.postandcourier.com/article/20140909/PC20/140909424/1177/doug-wojcik-college-of-charleston-reach-settlement

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Photo credit to The Post and Courier

The Client Commodity Market – Clients for Sale

Saw a great lawyer ad on television recently on behalf of a lawyer who I’m pretty damn sure doesn’t try the types of cases he was soliciting. It makes one wonder what happens to those unwitting clients who are pulled in by the flashy ads. Do they ever actually talk to the face on the television? If they are brokered out to other lawyers who actually do the work, are they ever fully and properly informed about the nature of the relationship? Do they eventually come to appreciate that they are more commodity than client? This blog is not intended to cast a net over all advertising lawyers. Frankly, there are many like our friends at John Price Law Firm or at The Joye Firm who work hard for their clients. It is a poorly kept secret, however, that there are those among us who are heavy on the advertising and light on the advocacy. So back to the real issue: where does the client factor into what is often nothing more than a high-priced game of bait and switch?

To answer the question, a review of the Rules is usually a good place to start. Rule 1.5(e) permits the division of fees between lawyers of different firms ONLY IF the division is in proportion to the services performed by each attorney OR each lawyer assumes joint responsibility for the representation. Let’s assume for argument sake that there will be no real division of labor in our hypothetical and that the referral lawyer instead agrees to “assume joint responsibility” for the representation. This is permitted by the Rule, provided that the referring lawyer assumes both financial and ethical responsibility and that the referring lawyer remains available to the client and remains knowledgeable about the representation. See Comment 7. Of course, the entire arrangement must be confirmed with the client in writing – lest we forget that there is an actual client involved in this setting.

The Honorable G. Ross Anderson once wrote an article expressing his displeasure over pro hac vice sponsors acting as “potted plants” in his courtroom. G. Ross’ observation seems to hit at the heart of Rule 1.5 – in short, the Rule does not allow anyone who professes to be an attorney for a client to be nothing more than a potted plant. The “potted plant rule” featured heavily in a recent South Carolina Court of Appeals decision. In Tuten v. David Charles Joel, et al., (WL 4212684), our Court upheld a grant of directed verdict in favor of the Plaintiff in a legal malpractice claim. Joel was a Georgia licensed lawyer who maintained an office in Columbia, South Carolina for a period of time, although he was never licensed to practice in South Carolina. Joel advertised in the Columbia Yellow pages and Tuten contacted him in response to his ad following an automobile accident. For a period of time, Joel employed a South Carolina licensed lawyer to man the Columbia office, but this arrangement ended when the SC lawyer left in 2006.

Upon the departure of the SC lawyer, Joel and the departing lawyer agreed that the SC lawyer would keep all of the SC cases and spin 1/3 of all attorneys’ fees back to Joel. A letter was then sent to the client explaining that Joel was “retiring from his South Carolina office,” that the SC counsel would handle the case going forward and that Joel would get 1/3 of the future fee. All of this seemed good and well until statute of limitations was missed, the wreck case was dismissed and a legal malpractice claim was filed. In defense of the legal malpractice claim, Joel attempted to take the position that he had severed the attorney client relationship and that he owed no further duty to the unfortunate client. In other words, he tried to persuade our Court that he could take a piece of the fee and none of the responsibility.

Not surprisingly, our Court would have none of the Joel argument, finding in part:

“We find no evidence Joel took any action to end his attorney-client relationship with Tuten. To the contrary, the only communication Tuten received came from Glover. Glover’s letter informed Tuten ‘this change should not affect you in any way.’ Significantly, Glover’s letter stated, ‘Mr. Joel will receive 1/3 of all attorney’s fees generated on your case.’ Glover’s letter contains no explanation of how Joel could receive an attorney’s fee for not being Tuten’s lawyer.”

The Court could have just as easily quoted Judge Anderson and found that “it is impermissible that an attorney would seek to take a division of fees and yet disavow any liability on the theory that he was nothing more than a potted plant.”

CLIENT POINTER: Rule Number One – know your lawyer. Ask real questions. Meet face to face. It is completely permissible and customary that lawyers associate other lawyers in different matters to access areas of expertise that may be beyond their experience. However, you are entitled to know the reasons for these associations and the roles that the different counsel will play on the team, including how they will be compensated.

PRACTICE POINTER: Don’t be a potted plant. If you’re in for the bounty, you are in for the burden. If you have referred out a matter or associated other lead counsel, it is essential that you remain informed and involved. If your de facto partner or agent errs in the handling of the case, he or she has committed malpractice for both of you.

Eric Bland and Ronnie Richter

McNair responds to Bland Richter Malpractice Suit in Lawyers Weekly

The McNair Law Firm has responded to a legal malpractice lawsuit alleging that a real estate attorney at the firm tricked five elderly sisters into losing beachfront land that had been in their family since the 1920s.

Robert Stepp of Sowell Gray in Columbia says “There’s more than one side to this story. The plaintiffs, like a lot of people, got caught in a bad real estate environment.”

An attorney for the sisters, Ronnie Richter of Bland Richter in Columbia, said that lawyers who are accused of legal malpractice often try to blame the client. But he believes McNair is “going to have a difficult time showing that these sisters were sophisticated in these matters or that they were anything short of 100 percent trusting of Mr. Deeb in his representation.”

To read the entire South Carolina Lawyer’s Weekly article and to see Bland Richter’s comments click here. To download a PDF of the article click here: McNair responds to malpractice suit | South Carolina Lawyers Weekly