Lawyer’s Error Does Not Toll Federal Habeas Statute of Limitations

Cadet v. STATE OF FLORIDA DEPT. OF CORRECTIONS, 853 F. 3d 1216 – Court of Appeals, 11th Circuit 2017 – Google Scholar:

Earlier this year the 11th Circuit court of appeals held that an attorney’s error in calculating the deadline for filing a federal habeas corpus petition was not sufficient to allow equitable tolling of the limitations period. The court explains:

What we hold today, and all that we hold, is that an attorney’s negligence, even gross negligence, or misunderstanding about the law is not by itself a serious instance of attorney misconduct for equitable tolling purposes, even though it does violate the ABA model rules as all, or virtually all, attorney negligence does. See Luna, 784 F.3d at 647 (explaining why negligently miscalculating a filing deadline alone is not and cannot be a sufficient basis for finding attorney misconduct for tolling purposes). Because Cadet has shown, at most, that his failure to meet the filing deadline was the product of his attorney’s good faith but negligent or grossly negligent misunderstanding of the law, the district court properly dismissed the habeas petition as untimely.

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ARDC Files Complaint Due to Misdemeanor Conviction

BEFORE THE HEARING BOARD:

My comment on this is: good grief what a waste of resources.

Update: The Illinois Supreme Court Censured Mr. Cardenas.

M.R. 29085 – In re: Manuel Antonio Cardenas. Disciplinary Commission. (January 12, 2018)

Petition by the Administrator of the Attorney Registration and Disciplinary Commission to impose discipline on consent pursuant to Supreme Court Rule 762(b). Allowed. Respondent Manuel Antonio Cardenas is censured.

Should Lawyers Be Required to Provide Clients With More Information on Past Matters Handled

The Professional Prospectus: A Call for Effective Professional Disclosure by Benjamin P. Edwards :: SSRN:

This article argues that lawyers should be required to disclose more information about past legal matters they have handled so that consumers can make informed decisions. I tend to agree that a lawyer should voluntarily disclose that (a) he has never handled that type of case before; (b) he has not tried this type of case to verdict; and (c) he is not licensed in a certain state.

Edward X. Clinton, Jr.

Connecticut Court Recommends Two-Year Suspension for Immigration Lawyer Who Failed to Diligently and Competently Represent Two Clients

Disciplinary Counsel v. Sporn, Conn: Appellate Court 2017 – Google Scholar:

The Court found that the lawyer did not maintain a trust account and, obviously, did not segregate unearned fees from her own personal property. Also, the Court found that the respondent did not diligently represent two men from Albania who were seeking asylum. It wrote:

The second and third grievance actions commenced against the respondent concerned her representation of Valent Kolami and Adrian Emin, brothers-in-law from Albania who originally entered the United States on visitor’s visas around 2000. Kolami and Emin retained the respondent in 2003 to appeal to the Board of Immigration Appeals (BIA) following its denial of their applications for political asylum.^[1] Each paid the respondent a $2500 fee. The respondent did not provide either of them with a written fee agreement, nor did she place the fees into a separate client trust account.The respondent filed appellate briefs before the BIA for Kolami and Emin. The BIA, however, returned the Kolami brief because the respondent certified service to Hartford instead of to New York. In the meantime, the filing deadline for the brief had passed. The respondent therefore moved to late file it. According to the respondent’s testimony, she did not receive notice of the disposition of the appeals, nor did she follow up in order to ascertain those dispositions, until 2011. Both Kolami and Emin went to the respondent’s office frequently between 2003 and 2011 to inquire about the status of their appeals. Each time the respondent told them that she was still awaiting decisions.In August, 2011, agents from United States Immigration and Customs Enforcement (ICE) detained Kolami and Emin. The respondent learned that the appeals to the BIA had in fact been dismissed in 2004—Emin’s on the merits, and Kolami’s because the brief was untimely filed. The respondent filed stays of removal for Kolami and Emin, a task for which each paid the respondent an additional $2500. The respondent did not provide either of them with a written fee agreement. The respondent did not place the fees into a separate client trust account. The stays, and two more that the respondent sought subsequently, were granted. When the fourth set of stays was denied, the respondent told Kolami and Emin that she could no longer represent them and referred them to a colleague. In April, 2012, Kolami and Emin were again detained by ICE. This time, however, Kolami was held in detention for eighteen months, and Emin for sixteen months.

Essentially, the lawyer failed to notify her clients that their appeal were dismissed in 2004 – years before they were detained by ICE.

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Maryland Suspends Attorney Who Failed To Competently And Diligently Represent A Minor

Attorney Grievance Commission v. GELLER KIRWAN, Md: Court of Appeals 2016 – Google Scholar:

The lawyer was appointed to represent a minor in an accident case but took no actions.

This is a discussion of one of the violations.

“MLRPC 1.1 states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” A lawyer violates MLRPC 1.1 when he or she fails to act or acts in an untimely manner, which results in harm to his or her client. Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 222 (2012) (quoting Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012)).

As the hearing judge stated, Ms. Kirwan’s failure to take any meaningful action towards pursuing her client’s claim did not meet the standards of competent practitioners and Ms. Kirwan was not adequately prepared, which resulted in harm to T.N. Ms. Kirwan spoke with Ms. S. in the two months after the retainer agreement was signed and received T.N.’s medical records, which were collected by Ms. S. Ms. Kirwan testified that she began drafting a letter to the City Solicitor to place the City on notice of her client’s claim, though she presented no evidence of this letter’s existence at the hearing. Ms. Kirwan also did not present evidence of any other substantive work performed on behalf of T.N. The hearing judge found that Ms. Kirwan’s failure to act harmed her client since the statute of limitations lapsed and T.N. is now unable to pursue her claim against the City.^[3] For these reasons, the hearing judge found that Ms. Kirwan violated MLRPC 1.1. We agree. Ms. Kirwan failed to take the necessary steps to further her client’s case. Therefore, Ms. Kirwan violated MLRPC 1.1.”

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ARDC Review Board Recommends 60 day suspension for neglecting a child support matter

Filed November 29:

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The ARDC Review Board has recommended a 60-day suspension for a lawyer who neglected a child support matter. The Review Board explained its decision in this way:

After accepting payment of $250 to handle a matter involving delinquent child support, Respondent took no further action on the matter. His clients repeatedly e-mailed and telephoned him for information about the matter and its progress, and he either failed to respond or provided false information when he did respond. After about six months of unsuccessfully trying to get information from Respondent, his clients complained to the ARDC.

The Administrator filed a three-count complaint against Respondent, charging him with neglecting the child support matter, failing to keep his clients reasonably informed about the status of the matter and failing to promptly comply with their requests for information, making false statements of material fact to the ARDC during his disciplinary proceeding, engaging in dishonest conduct, and engaging in conduct prejudicial to the administration of justice, in violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 8.1(a), 8.4(c), and 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Following a hearing at which Respondent represented himself, the Hearing Board found that he committed most of the misconduct with which he was charged. For his misconduct, it recommended that he be suspended for 60 days, and be required to complete the ARDC Professionalism Seminar within one year of the Court’s order imposing discipline in this matter. Respondent filed exceptions, challenging only the Hearing Board’s recommendation, and arguing that a suspension of 30 days would be more in line with case precedent and commensurate with his misconduct.

Comment: this is an appropriate suspension given that the misconduct concerned only one case.

Edward X. Clinton, Jr.

ARDC Hearing Board Recommends Suspension for Abusive Voicemails

Filed September 9:

The ARDC charged a lawyer with wrongful conduct for leaving abusive voicemails for clients, apparently to get the clients to pay their bills.

This is the panel’s description of the voicemail message left by the respondent:

Buchanan testified that during the phone calls from Respondent, Respondent cursed Buchanan and his family and used demeaning language, which was very upsetting for Buchanan. Buchanan began taping the telephone calls and eventually played the tape for a representative of the ARDC. Buchanan no longer possesses the recordings due to a problem with his phone, but confirmed that Respondent made the following statements:

You are a piece of garbage. All black people are alike. You’re slovenly, ignorant.

You better give me my money or your son’s case is going to be delayed.

I’m sick of you, you piece of shit.

I don’t know who’s the biggest bitch. You or [family]. I’m going to lock you up.

Low class n—–s. I’m going to have you all locked up.

You call me with stupid shit. Wait until next court date.

You have until 5:00 on Thursday. $300, no $500 check… Or on Friday I’ll withdraw. I already told the State’s Attorney to writ your son over.

PAGE 7:

You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer.

You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your son.

Help your son. Pay. Stop delaying case.

(Tr. 33, 36-41, 67, 85-86).

During the time period of the phone calls, Leon was in jail waiting for his trial. The messages caused Buchanan to worry, feel disgraced, and think his son’s case would be jeopardized if Respondent did not receive more money. Buchanan recalled acting like a gentleman toward Respondent and denied ever being rude or disrespectful to him, but he did acknowledge being upset at Respondent for cursing and hanging up on him. Respondent had not been previously disrespectful to Buchanan. (Tr. 33, 35, 38-41, 73-76, 79, 84-85).

Respondent admitted making the statements set forth above. He testified that after money became an issue, Buchanan was consistently rude and disrespectful and began criticizing Respondent’s representation of Leon and hanging up on him. Respondent believes Buchanan is a “typical deadbeat.” (Tr. 128-30, 142, 197-98).

The Hearing Board found that the respondent used “means to embarrass, delay or burden” in violation of Rule 4.4(a). Another count in the complaint accused the respondent of leaving abusive voicemail messages for another client.

The Hearing Board also found that the respondent failed to prosecute an appeal for a convicted defendant and thus failed to act with diligence and promptness. The client was later able to reinstate the appeal after a public defender was appointed.

The Hearing Board recommended a 60-day suspension.

Comment: It is unusual to see a lawyer leave angry messages by voicemail. The panel may have decided on a short suspension because the lawyer did represent poor defendants in the criminal justice system. This is speculation but the panel may have felt sympathy for a lawyer who accepted such low paying work and such a thankless job.

Edward X. Clinton, Jr.

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Illinois Supreme Court Amends Comment To Rule 1.1 Competence

The Illinois Supreme Court has amended a comment to Rule 1.1, Competence. The purpose of the amendment is to require lawyers to give the client notice when they are going to retain another lawyer to render services to a client. For those of us who practice in small firms and frequently retain other lawyers to help on cases, this requirement is really another way of saying that you must keep the client informed about the progress of his matter.

The amended comment read as follows:

Retaining Or Contracting With Other Lawyers

[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2(e) and Comment [15], 1.4, 1.5(e), 1.6, and 5.5(a). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

[7] When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.