Spaulding v Zimmerman p.5
Prior action was brought by Theodore Spaulding, father of David (underage), against Zimmerman and co-defendants driving other vehicle, for injuries David sustained during accident while riding in latter’s vehicle. Parties settled. Settlement included no mention of an aorta aneurysm known to Ds, which was discovered later after David underwent a physical.
David (having reached age of majority) brought suit for additional damages, prior order for settlement was vacated, character of concealment, Ds counsel knew Ps would not settle for same sum if they knew and no showing P’s reps knew of aneurysm and decided it wasn’t related to accident. After settlement, parties were no longer adverse, Ds should have disclosed.
D appealed argued lack of jurisdiction to vacate settlement just because their counsel had knowledge of aneurysm.
● reporting complaint
● investigation by authorities
● determination of probable cause
● formal adjudicative proceeding
p. 24 State of Ok. Ex Rel. Ok Bar Ass’n V. Allford
Bar filed proceeding against Allford, both stipulated to the facts and requested a private reprimand. At hearing before PR tribunal, Allford contradicted stipulations. didn’t acknowledge culpability, didn’t show remorse. PRT recommended public reprimand.
Rejected, instead suspend for 6 months.
Allford was paid by Mackey to probate his parents estates. She did not (failed to keep appointments, return calls), was terminated, and then refused to return file and asked to complete the case. Mackey filed grievance with Bar. Allford refused to respond to allegations and did not appear for deposition after subpoena was issued. Allford asked sheriff’s employees to falsify subpoena date.
p. 620 Florida Board of Bar Examiners Ex Rel. M.A.R.
M.A.R. asked for review of Florida Board after being denied admission. Affirmed
After investigations and a formal hearing, the Board had discovered M.A.R. was $17,000 behind in child support payments and failed to file timely income taxes. He also wrote bad checks and gave false oath by notarizing the date on his bar application forms before filling them out. M.A.R. also lied about prior arrest for DUI on his law school application. Finally the board found he had falsely represented himself as a lawyer to a creditor.
When considered in aggregate, the instances of misconduct are enough to justify non admission.
p. 32 In Re Docking
Docking was retained to represent 3 Korean nationals charged with aggravated kidnapping.
Docking motioned to withdraw initial guilty pleas because of miscommunication and misunderstanding due to language barrier. Court reduced sentence but did not withdraw plea. Defendants filed motions arguing ineffective assistance of counsel.
During hearing court determined conflict of interest between 3 Defendants and no evidence such conflict was explained or waived. Docking had no felony trial experience and had only been out of law school one year, nor did he associate with a Korean speaking lawyer to handle the case. Docking did not always provide an interpreter. Failure to properly investigate the case, use witnesses, etc. Docking misinformed his clients regarding the law and failed to request they not be deported.
Ineffective counsel, sentences were vacated and pleas set aside. A formal complaint was filed. Docking admitted he was inexperienced at the time and failed to take the proper steps to represent his clients competently and agreed to public censure.
p.34 Committee on Professional Ethics and Conduct of the Iowa State Bar Ass’n v. Miller
Miller was disciplined for neglecting 2 estates and refusing to respond to 3 letters of inquiry from Committee. Affirmed 3 month suspension of license.
At hearing Miller
There were identification issues with the first trial, cashier did not pick Goodman out of line up resulting in hung jury and mistrial.
At second trial, confessed accomplices all implicated Goodman, upon being offered deals. Cashier was on vacation, lawyer did not subpoena her, because he thought gov would call her. Since lawyer did not prove she was unavailable, portions of her prior testimony were excluded. Lawyer opened the door to prior robbery convictions which would otherwise have been precluded. Lawyer did not object to statement that accomplice had no reason to testify even though they had been offered a deal. Witness statements of being threatened for their participation was allowed to go to witness credibility only, lawyer failed to ask for limiting jury instruction to this effect. Lawyer failed to object to misleading statements made by prosecution.
Two prong Strickland standard:
1. Was counsel’s performance deficient?
2. Was client prejudiced by it?
a. reasonable probability that but for counsel’s errors, the result of the proceeding would have been different
1. contrary to clearly established Federal law or
2. unreasonable application of clearly established Federal law
● state applied wrong legal standard to ineffective assistance claim
● court unreasonably rejected 6th amendment claim
● cumulative effect of counsel’s errors undermines confidence in trial outcome
○ viewed in totality= clear pattern of ineffective counsel
● reasonable probability outcome would have been different