Category Archives: Malpractice

CLE Course: Basics of Conflicts of Interest


Penalties for conflict of interest violations are severe and range from disqualification to disgorgement of fees.  However, despite the fundamental nature of conflicts and waivers, they still continue to plague many attorneys and continue to be a source of ethical and malpractice liability.  And conflicts of interest have only become a greater concern as increasingly more attorneys are changing firms and the corporate ‘client’ becomes harder to identify.

The ethical issues that are most fundamental to many attorneys in their practices involve conflicts of interest.

If you need to brush up on the fundamentals of conflicts of interest then join attorney Robert Kehr as he provides an overview of the main concepts of avoiding actual and potential conflicts in your practice.  The main areas addressed include the source of ethical conflict rules, ethical resources, the purpose of the Rules of Professional Conduct, the definition of a conflict of interest, the duties that a lawyer owes to the client, the basic conflicts rule, specific conflicts and giving the client informed consent of the conflict.  To access the course click here: Conflicts of Interest: The Basics.

Further issues addressed include:

  • The ABA Model Rules
  • Ethics opinions
  • Disqualification
  • Disciplinary proceedings
  • Fiduciary duties
  • Standards of civil conduct
  • Potential conflicts
  • Actual conflicts
  • The four major duties that a lawyer owes to a client
  • Model Rule 1.7(a)(1)
  • Examples of conflicts
  • Common examples of direct adversity
  • Model Rule 1.7(a)(2) & material limitation
  • The comments to the conflict rules
  • Competence
  • Full & unbiased disclosure
  • Confidentiality
  • Undivided loyalty to the client
  • Full disclosure to the client
  • Joint representation of clients
  • The importance of conflict letters
  • Revoking consent

Robert L. Kehr is a principal with Kehr, Schiff & Crane, LLP, in Los Angeles, where his practice includes business and real estate transactions and expert testimony on legal ethics.  He is a former chair and continuing member of the Los Angeles County Bar Association Committee on Professional Responsibility and Ethics and the current chair of the State Bar of California Committee on Professional Responsibility and Conduct.

This CLE course on conflicts of interest is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in New York and around the country.  For more information about CLE in New York please click the following link: NY CLE.

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How to Avoid Legal Malpractice Claims


Over the last few decades, the incidence of legal malpractice claims has greatly increased as more clients have begun to sue their attorneys for substandard work.  There are many reasons to explain the increased number of legal malpractice claims, and the recent downturn in the economy has only generated more malpractice claims.  In order to avoid these lawsuits, attorneys must be extremely cognizant of their ethical duties to their clients and also the major sources of client discontent that lead to the greatest amount of legal malpractice claims.

“Pay attention to the details because they separate mediocrity from excellence” – Mark Wilson

To learn how you can provide excellent service to your clients and avoid legal malpractice claims, please join attorney Mark Wilson for a look at the areas that lead to malpractice liability.  Establishing a good rapport with the client, paying attention to your ethical duties and providing excellent legal service to your client can help you to avoid major pitfalls and malpractice lawsuits.  The main issues discussed include recent malpractice trends, how best to proceed if you decide to accept the case, the importance of using fee agreements, early preparation, giving the client guidance, intelligent time keeping, learning your craft and client trust accounts.  To access the course, please click here: How to Avoid Legal Malpractice Claims.

Further topics addressed in this CLE course include:

  • The reputation of attorneys
  • Malpractice statistics
  • The downturn in the economy & the increased incidence of malpractice claims
  • Deciding whether to accept the assignment
  • Avoiding difficult clients
  • Appearance & reality
  • Documenting the attorney-client relationship
  • Avoiding conflicts of interest
  • Conflict waiver letters
  • The retainer agreement
  • Corresponding frequently with clients
  • Jury instructions
  • Why information is not enough
  • Block billing
  • “No charge”
  • Proper staffing
  • Timekeepers
  • Competence
  • Workload
  • Client trust accounts
  • Attention to detail

A seasoned trial attorney and skilled negotiator, Mark B. Wilson has won nearly every case he has tried or arbitrated and has lost only one jury trial in which the appellate court reversed the judgment in his client’s favor.  He tries cases in both federal and state courts in a variety of practice areas, including copyright infringement, construction defects, covenants not to compete, breach of contract, attorney malpractice, unlawful detainer and personal injury.  He and his partner Gerald Klein have recovered nearly $100 million in plaintiffs’ cases and have won defense verdicts in “bet the company” cases where millions of dollars were on the table.  For eight consecutive years he has been acknowledged as a Southern California Super Lawyer in the areas of business litigation, construction litigation and intellectual property litigation. He is also recognized as one of the top trial attorneys in Orange County by OC Register Metro magazine and Mr. Wilson has also achieved an “AV” rating from Martindale-Hubbell.  A frequent lecturer to bar organizations on modern trial techniques, he has also authored several articles on trial practice.

This CLE course on handling media attention is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • District of Columbia (DC)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

Attorney Credits offers continuing legal education (CLE) for attorneys in Illinois and around the country.  For more information about CLE in Illinois  please click the following link: Illinois CLE.

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CLE Course: Client Intake, Damages & Expert Witnesses – Do You Want to Take This PI Case?

Dan GilleonWhen you are contemplating whether to take that next case remember the quote below.  This quote is from a seasoned attorney who has learned his lesson the hard way – not to take every case that walks through the door.  How many times have you started a case and then once you get deeper into it you think to yourself, “why did I take this case in the first place?”  Doing your homework on the plaintiff and fully evaluating numerous aspects of the case can save you a lot of time, money and headache … and maybe even a malpractice lawsuit.  Before you even take the client you must consider everything from the potential client’s appearance and likability to potential damages and expert witnesses that will be needed for the case.

“The best case is the one I did not take.”

Luckily, you don’t have to make those rookie mistakes because Dan Gilleon is here to help you decide if you really want to take that next personal injury case.  Dan graciously shares his years of experience and wisdom in a recently added CLE course entitled – Client Intake, Damages & Expert Witnesses: Do You Want to Take This PI Case?.  In this in-depth course, Dan offers numerous practical points for you to consider before taking your next personal injury case.  This CLE course from Attorney Credits focuses on principle issues to consider at client intake, evaluating damages and the experts you will need for the liability & damages phase of trial.

Further topics discussed in this personal injury CLE course include:

  • Evaluating a potential plaintiff
  • Language skills
  • Appearance
  • Age of the plaintiff
  • Occupation
  • Criminal history
  • Willingness to go to trial
  • Liability
  • Statutes of limitation
  • Recorded statements to the insurance company
  • Timing of the accident
  • Property damage claims
  • Police reports
  • Witnesses
  • Motor vehicle accidents
  • Competing lawsuits
  • Premises liability cases
  • The use of video
  • Underinsured/uninsured motorist claims
  • Treating doctors, insurance coverage
  • Photographs of the vehicle & accident scene
  • Medical treatment
  • Specialists
  • Lost work
  • Bankruptcy
  • Dog bites
  • Dan also discusses the following types of experts:
  • Certified safety experts
  • Human factors experts
  • Biomechanical experts
  • Mechanical engineers
  • Fire/explosion experts
  • Medical doctors
  • The treating doctors
  • Vocational rehabilitationists
  • Life care planners
  • Economic experts

When considering whether to take your next personal injury case its important to remember, “it’s never about the money, until it’s about the money.” Dan Gilleon is a senior partner and founder of the personal injury San Diego law firm of Mitchell & Gilleon.  He is a an experienced Plaintiff’s Civil Trial Attorney who recently acted as co-counsel for Brian Giles, former San Diego Padres player, who was sued by Cheri Olvera for palimony and domestic violence in a highly publicized case.  He has obtained significant verdicts in the areas of hate crimes, wrongful termination, sexual harassment and personal injury.  A recipient of the “Outstanding Trial Lawyer Award” given to him by peer attorneys, his extensive trial experience has led to several significant verdicts.

This CLE course on the evaluating personal injury cases is currently accredited in the following states:

  • Alaska (AK)
  • Arizona (AZ)
  • California (CA)
  • Connecticut (CT)
  • Delaware (DE)
  • District of Columbia (DC)
  • Georgia (GA)
  • Illinois (IL)
  • Maryland (MD)
  • Massachusetts (MA)
  • Michigan (MI)
  • New Jersey (NJ)
  • New York (NY)
  • Pennsylvania (PA)
  • South Dakota (SD)

This course is available for attorneys in Illinois and around the country.  For more information about continuing legal education (CLE) in Illinois, please click the following link: Illinois CLE.

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CLE Course: Ten Social Media Myths for Attorneys

Social media has changed society and along with it the practice of law.  Those attorneys who previously adopted the “Ostrich” approach – burying their heads in the sand and hoping it would all go away – must pull their head out and learn to adapt to our new Web 2.0 world.

It is now apparent that social media is not a fad – it is a paradigm shift.  Like email, Twitter and Facebook are here to stay … and that’s just the beginning.  There are currently over 400 social media websites and the list continues to grow every month.

Web 2.0 World

Social media is not just for teenagers and college kids anymore, companies and professionals now utilize social media for many business purposes.  Attorneys must be cognizant of social media and the legal issues that it presents in order to avoid legal liability and ethical violations in their own practice, and to fully counsel the clients they represent.

If you need help understanding the complex intersection of social media and the law, we have just added an excellent CLE course entitled Ten Social Media Myths for Attorneys.  In this extremely current and informative CLE course, Deborah Gonzalez of Law2sm provides an extremely comprehensive overview of the legal issues created by social media.  This course delves beyond merely introductory social media concepts and goes in-depth into complex legal social media issues so that attorneys are better able to counsel their clients.  The main areas addressed by Ms. Gonzalez include what is social media, ten principal social media myths for attorneys and resources for attorneys.

Further topics discussed include:

  • The many forms of social media
  • The new digital world
  • Why attorneys & professionals use social media
  • The principles of social media
  • Ethical rules that apply to social media use by attorneys
  • Disclaimers
  • Trademark protection
  • The FTC & false credentials
  • Astroturfing
  • Twitter-jacking
  • Cyber-stalking
  • Privacy
  • Employment law issues
  • The criminal system & the right to a fair trial
  • Digital legacy
  • Digital assets
  • State & federal laws impacting social media

Deborah Gonzalez is an attorney whose legal practice focuses on art, music, entertainment, digital, social media and online law.  She is licensed to practice in both New York and Georgia, and her clients include museums, galleries, artists & art professionals, animators, filmmakers, musicians & music professionals, authors, and various other creative professionals.  Ms. Gonzalez is the legal advisor to the Georgia Music Industry Association and currently serves on the board of Women in Film & Television Atlanta.  She is also a member of the Georgia Entertainment Association, Georgia Production Partnership, Women in Animation, and the Entertainment Law sections of the Georgia and New York Sate Bar Associations.  She speaks at various industry conferences around the world – such as SEIGE CON and SIAF – on legal issues and concerns for artists of all genres.

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Avoiding Ethical Violations & Legal Malpractice Claims

Legal Malpractice – two words attorneys never want to hear in their legal career … unless they are taking a CLE course with Attorney Credits.  There are many avenues that can lead to a malpractice claim, from conflicts of interest to improperly calendaring important dates.  However, many of these ethical traps can easily be avoided with a little knowledge and diligence.

We have just added an excellent resource for attorneys entitled Avoiding Ethical Violations & Legal Malpractice Claims: An Expert’s Perspective. Prominent Legal Malpractice attorney James E. King provides a comprehensive discussion of the common ethical pitfalls that  lead to ethical violations from the state bar and legal malpractice claims from your clients.

The main topics discussed include:

  • The Golden Rules
  • The attorney client relationship
  • Avoiding legal malpractice during the representation
  • Avoiding legal malpractice once the attorney client relationship has terminated

In addition to the main topics Mr. King also discusses a number of other pertinent ethical considerations. Further points addressed include communicating with clients, procrastination, keeping current on fees, substance abuse, representing multiple clients, potential conflicts, clarifying & limiting the scope of the attorney client relationship, the retention agreement, clients who habitually change attorneys, suing for legal fees, withdrawal, handling matters promptly, staying current on the law, the “rescue attorney,’ mistakes, keeping a clear record and client papers.

The course is currently offered in the following states and qualifies for 3 credits hours of Legal Ethics:

James E. King is the Founder of the King Law Corporation in San Diego.  Mr. King specializes in attorney fee disputes, legal ethics, and advises corporate counsel and law firms on litigation costs.  Mr. King has testified as an expert witness on numerous attorney-client fee disputes and has skillfully represented prominent clients such as Prince Fahd Aziz of Saudi Arabia and Heisman Trophy winner Rashaan Salaam.  Mr. King serves as a Special Master for the State Bar of California and is Vice-Chair of the Fee Arbitration Committee for the San Diego County Bar Association.  Jim also lectures and publishes works on attorney fee ethics and other related topics.

No Such Thing as a Non-Refundable Retainer?

By Jason Castillo, Director of Legal Education

The Iowa Supreme Court recently suspended a retired Iowa attorney for 30 days after ruling that a fee agreement with a criminal defendant was unethical.  According to the opinion, “the amount of the fee charged and collected by Vilmont for performing the limited and insignificant services in representing his client was, without question, unreasonable.”  The court then stated that a reasonable fee would have been about $600 under the circumstances of the case.  To read the opinion, click here.

The charges arose from attorney Bill Vilmont’s representation of a client on a state charge of enticement of a minor.  According to the Iowa Supreme Court opinion, the agreement provided for charges of $225 an hour, with a minimum fee of $2,500 to be paid with a retainer.  The $2,500 retainer was placed in a trust.

When the state charges were dropped in leiu of federal charges, the client dropped Vilmont and retained a different attorney to represent him in federal court, according to court documents.  Five days after the state charge was dismissed, Vilmont withdrew the $2,500 from the trust account without notifying his former client, according to the opinion.  Vilmont then ignored several requests to return the retainer.

Vilmont provided an accounting to the Iowa Supreme Court Disciplinary Board showing that he worked 3.7 hours on the client’s case – including one hour to provide the accounting.  The court, however, ruled that the minimum fee contract was “clearly unethical” and that Vilmont had failed to provide a timely accounting.

After scanning some of the comments on the ABA website, it’s clear that a number of attorneys did not agree with the Iowa Supreme Court ruling.  However, in the words of attorney fee expert James King, there is no such thing as a non-refundable retainer.  All unearned fees must be returned to the client.[1]  Under California Rule 3-700(D)(2), unless the attorney and client have contracted for a “true retainer,” the attorney must refund any portion of an advance fee that the attorney has not yet earned.[2]

And an examination of authority reveals that only “true retainers” are nonrefundable – and these are extremely rare.  When a client discharges an attorney, the Rules of Professional Conduct require the attorney to “[p]romptly refund any part of a fee paid in advance that has not been earned.”[3]  In California and other states there are also Ethics Opinions that address the subject.

What are your thoughts?

For more information, we have a few resources available for you:

[1] Baranowski v. State Bar (1979) 24 Cal.3d 153.

[2] The California Rules also state that a refund is unnecessary if the money is “a true retainer fee … paid solely for the purpose of ensuring the availability of the member for the matter” (see Rule 3-700(D)(2).  However, in the words of the California Supreme Court, true retainers are very rare these days.

[3] See California Ethics Opinion 01-02 which speculates that there are probably only a handful of situations in which a client would want to pay a true retainer.

Time to Add a Disclaimer to Your Blog?

As I blogged about previously, earlier in the month the Virginia Bar charged attorney Richmond Attorney Horace Hunter with misconduct due to his Richmond Criminal Defense News blog (PDF here).[1]

The attorney in question has now been found guilty of violating the Virginia ethics rules regarding advertising. Don’t fear for Hunter, his penalty was a public admonition and he was told take corrective action within 30 days – public admonition is the least sever penalty available.

Specifically, the Virginia Disciplinary Committee found that Hunter violated an ethical rule that mandated an advertising disclaimer on his blog when he wrote about his own legal cases.  Under Virginia Ethics Rule 7.2 Hunter must ethically post a disclaimer on the homepage of his blog.[2]  Since Hunter didn’t have the disclaimer in his blog posts noting his firm’s wins to be advertising, the Committee found his conduct to be unethical.

The Committee further found that Horace Frazier Hunter violated rules by disclosing detrimental or embarrassing information about clients without their consent.  Apparently, at least two former clients said they did not want their cases posted on Hunter’s blog after learning that he had written about their cases.

Hunter had argued that his blog consisted of news and commentary and refused to post the disclaimer as a violation of his First Amendment free speech rights. He claimed that since the information he posted was accurate and disclosed during public trials, that he did not violate any confidences.

“Although I adamantly disagree with the panel’s decision, I do respect it” [3]

The Virginia Disciplinary Committee contends that the disclaimer is aimed at preventing potential clients from being misled – something that could generate mistrust of the justice system or make clients mistrust their lawyers.  The Committee did not see the First Amendment as being involved in the case.

“The First Amendment has no bearing on this violation. … It doesn’t impact journalists, it doesn’t impact bloggers, it doesn’t impact the general public.” – Renu Brennan, Assistant Virginia Bar Counsel [4]

Will this move have the chilling effect that some have proposed? [5]  I doubt it.  Attorneys might, however, want to start including a disclaimer on their blog if they talk about their cases.

Further, it’s always wise to remember to remain ethical in our new Web 2.0 World. Absent a specific rule or guideline, it’s always wise to use common sense.

[2] However, this Rule 7.2 Disclaimer Rule is only to apply, “when listing previous wins in advertising.”  The disclaimer must state that prior results don’t guarantee future success. The issue will be will be whether Hunter’s blog posts are written in a truly journalistic fashion, or are they simply disguised advertising taking the form of blog posts

[3] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[4] See: Virginia Bar Rules that Lawyer Violated Advertising Rules with his Blog

[5] The Washington Post‘s Capital Business Blog originally reported the story and stirred the pot when it cautioned that the action against Hunter could have a chilling effect on blogging in the legal industry. Washington Posts’s Catherine Ho (@WapoCat on Twitter) warned that Virginia lawyers who blog about their cases may suffer  the consequences from their state bar.  Ms. Ho also state that the Hunter case could set precedent for other states bar’s limiting legal blogs.

ABA Suggests Added Duties for Emailing Attorneys

ABA Formal Opinion 11-459 discusses the steps that lawyers must take to address the risk of third parties gaining access to email and text communications with a client.  The Formal Opinion –  entitled Duty to Protect the Confidentiality of E-mail Communications with One’s Client – seems to suggest that lawyers now have an added duty to warn clients of the confidentiality concerns when sending ‘substantive’ client communications via email, text and other electronic means.

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.

The main gist of the opinion is that people send emails and texts messages from numerous sources.  People don’t just have one desktop computer that they solely use – now people have smartphones, work on computers in the library or at a hotel, or use other people’s devices to email/text.  Further, your client may be at risk because of the electronic devices they are accessing your emails on – namely their employers computer.  And many company’s written internal policy provide that the company has a right of access to all employees’ computers and e-mail files – this even extends to those relating to employees’ personal matters.  This is troublesome for the confidentiality of this information.

Model Rule 1.6 requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.”  Therefore, Formal Opinion suggests that the attorneys must advise that the confidential information may be compromised by the computer or other electronic device that the client uses to access the electronic communications.

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.

When is the duty to advise triggered?

In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client- lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

The bottom line is a little bit vague.  If there is a “a significant risk that third parties will have access to the communications,” an attorney must take reasonable care to protect the confidentiality of the electronic communications by giving “appropriately tailored advice to the client.”

What consists of “appropriately tailored advice to the client?”  That’s anybody’s guess.  However, I would suggest an appropriately tailored line or two addressing these concerns in your email disclaimer.

Further Resources:

ABA Formal Opinion 11-459

ABA FYI: Playing it Safe With Encryption

Legal Industry Series, Part 1: Are Lawyers Required to Encrypt Client Email?

Fee Arrangements: Get Paid for Your Time & Advice

We were lucky enough to work with renowned attorney James E. King ofthe King Law firm this week to put together some excellent programs on fee agreements.[1] The first course discusses the ethics of fee agreements and the second course delves into what is considered a ‘reasonable’ fee.

Mr. King presented numerous nuggets of wisdom, but probably none greater than this kernel of truth:

“If one pays peanuts, one only expects to hire monkeys.”

And as criminal defense attorney Michael S. Discioarro aptly stated in another course on ethically representing criminal clients, you are an attorney, you deserved to get paid for your time – you are not doing charity work.

The fee agreement ensures that you get paid … and a well-written fee agreement means that you get to keep the fees that  you have earned (as long as they are ‘reasonable’). If it does not get you paid by the client, at the very least the fee agreement may save you in an action from the State Bar or a malpractice proceeding. That’s because as soon as an attorney files a claim for unpaid bills from the client, the client usually turns around and files a malpractice suit and seeks to have the lawyer’s fees reduced. Without a solid fee arrangement, an attorney may have his or her bills reduced by 25% or disgorged completely if there have been egregious ethical slip-ups.

That’s why I am so amazed that attorneys routinely operate without fee arrangements or operate with poorly drafted fee arrangements. I have been told by a number of attorneys how surprised they were when they got a hold of another attorney’s fee arrangement and how poorly drafted it was.

Further, in addition to getting paid, the fee arrangement is the roadmap of the relationship between the attorney and the client. It sets the boundaries for the entire attorney-client relationship. Don’t like answering phone calls? If you charge the client for excessive calls, they will be less likely to call you every 5 minutes for updates on the case. Have a problem terminating clients? Make sure to include a clause that makes them pay for any extra copying of papers or files at the termination of the representation. The fee arrangement is the contractual agreement between the attorney and client.

The course is available here: Fee Agreements: Ethics & Reasonableness

I will leave you with one last quote from Abraham Lincoln (compliments of Mr. King) that comes from a speech he gave to a group of young lawyers in Illinois over a century ago:

“A lawyer’s time and advice are his stock in trade.”

Make sure you get paid for your time and advice – employ a well-written fee arrangement with every client.

Further resources:




Let’s Be Reasonable

Cal Bar Sample Written Fee Agreement Forms

[1] Mr. King is the founder of the King Law Corporation in San Diego and specializes in attorney fee disputes, legal ethics, and advises corporate counsel and law firms on litigation costs. Mr. King has testified as an expert witness on numerous attorney-client fee disputes and has represented prominent clients such as Heisman Trophy winner Rashan Salaam, Prince Fahd Aziz of Saudi Arabia, and attorney Robert Shapiro. Mr. King serves as a Special Master for the State Bar of California and is Vice-Chair of the Fee Arbitration Committee for the San Diego County Bar Association. Mr. King also lectures and publishes works on the ethics and reasonableness of attorney fee ethics and other legal ethics topics.

Lawyer Denied $1.2 Million Fee For Obnoxious Conduct

The man who was dubbed New York’s most obnoxious lawyer (what a distinction!) by the Village Voice has been denied $1.2 million in contingency fees for his disregard to the judicial system and flight from New York to avoid arrest on contempt charges. No other lawyer in New York had been ousted for “obstructive and offensive behavior which did not involve fraud or deception” – until Kenneth Heller. According to one adversary, Heller was disbarred for basically “being an asshole,” which “takes some doing.” From his actions in a wrongful death suit (which was unrelated to his disbarment), you can easily see why he was denied the $1.2 million fee.

Quoting an opinion of the appeals court in Manhattan that disbarred Kenneth Heller in 2004, Southern District of New York bankruptcy Judge Stuart M. Bernstein wrote that Heller’s refusal to turn over files in a matter that was eventually settled for $3.7 million was “symptomatic” of a record of “utter contempt for the judicial system.” Bernstein’s ruling in In re Ruby G. Emanuel, denied Heller any share in the $1.2 million the judge had awarded to the law firm of Jacoby & Meyers, which took over from Heller the wrongful death case of James Emanuel, a worker who was fatally injured in a 1992 accident at the Brooklyn Navy Yard.

In that case, Ruby Emanuel, James Emanuel’s widow, had originally retained Heller to represent her in a wrongful death action stemming from her husband’s untimely death shortly before filing for bankruptcy in 1997. The jury returned a verdict of $25 million in 1999, but Justice Leland DeGrasse reduced the award to $7.6 million. However, in 2004 the Appellate Division reversed the Manhattan Supreme Court and ordered a new trial because according to Judge Bernstein, Heller had proceeded on a “faulty theory” in the case.

Then, about a month after the reversal, the 1st Department disbarred Heller in an unrelated case for his history of unruly behavior:

“In light of the cumulative evidence of respondent’s 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.”

Following Heller’s disbarment, Ms. Emmanuel began looking for a new lawyer to represent her in the mattter, eventually settling on Jacoby & Meyers to handle the retrial in state court. When the new law firm asked Heller to forward his files in the matter, he refused, even though as Judge Bernstein noted, “terminated lawyers normally send their files promptly to new counsel to be sure that the interests of the client are protected.” Indeed, this is mandated by many state ethics codes.

Through countless requests and 2 ½ years, Heller never budged and only offered various excuses as to what had happened to the missing client files – lost in a house upstate, damaged by a flood, discarded by workers – as the case was passed among five judges throughout New York. Jacoby & Meyers finally obtained a Contempt Order from Justice Howard R. Silver in the Bronx, fining Heller $10,000 and ordering him to serve 30 days in jail for flouting an order to turn over the files.

The 80 year-old Heller was eventually arrested in February 2007 and served a night in jail before an appellate judge lifted the sanction. However, the punishment was reinstated two months later and the contempt order and punishment affirmed by the 1st Department. When Heller refused to turn himself in he became a fugitive. As reports, at approximately the same time, a half-dozen deputies, pursuant to a warrant issued by Justice Silver, broke into Heller’s office in search of the files, but came up with nothing.

Then in July Judge Bernstein held a hearing in to assess Heller’s claim to a portion of the $1.2 million fee. Heller requested permission to testify via a video hookup because he was afraid of being arrested if he came into New York to testify. Bernstein denied the request because Heller had fled the state to “avoid punishment meted out by a state trial court judge.” Finally, in his decision last week, Bernstein found that Heller had obstructed Jacoby & Meyer’s “attempt to retry the case he lost,” and that his refusal to turn over the client files resulted in “prejudice to plaintiff’s right to a new trial in this action for maritime wrongful death.”

Nonetheless, Bernstein concluded, the new firm had done “the best it could” in securing the $3.7 million settlement. Michael S. Feldman, Jacoby & Meyer’s lead attorney on the case, stated that they only had the record on appeal to work with in negotiating a settlement. While Heller’s files consisted of 43 boxes of material, the record on appeal filled only 2 boxes, Feldman said. And unfortunately the defendant’s records in the underlying wrongful death suit had been destroyed in the attack on the World Trade Center on 9/11 where its law firm, Hill Betts & Nash, had its offices, Feldman added. “We had to proceed without videos and photographs of Mr. Emanuel” who was paralyzed from the neck down and eventually died, Feldman also stated. Ms. Emanual was also denied access to witness notes and the full transcripts of depositions due to Heller’s refusal to turn over his files.

Richard Tenenbaum, a lawyer who represented Heller during a one-day hearing in bankruptcy court last summer, described the 80 year-old Heller as a former seaman who is “a tough old bird,” but “a master of maritime law.” One Bronx jurist has described him as a “pre-eminent maritime attorney,” and Heller estimates that over his career he has obtained verdicts totaling more than $70 million.