By: Chris McDonough & Omid Zareh
Recently, we gave a lecture regarding dealing with the adversarial client. At the conclusion of the lecture, a number of participants came up to share some rather amusing client experiences. Difficulties with clients seemed to be a common theme. However, while these instances seemed funny in retrospect, at the time they were sources of much aggravation, costing quite a bit of the lawyer’s time—which as we all know is precious. Equally costly is the energy and emotion required to deal with these clients.
This article was published in the NYLJ.
Joel Brandes was disbarred by the Appellate Division, Second Department on April 28, 2002. After waiting the required seven years, he first applied for reinstatement in 2009. That application was denied in an order which merely stated that he did not possess the character and fitness to practice law. Important to this tale is the fact that on this initial application he revealed that he was doing paralegal work for New York attorneys over the Internet from his home in Florida.1
In my lectures, I am often asked about how to properly divide a settlement check made payable to both the client and an attorney where there will be a division of that check. The inquiring attorneys are often surprised that the procedure they have used for decades is not technically correct.
Differing interests between a lawyer and a client are defined as “every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.” (RPC 1.0 (f))
I recently gave a lecture where I was discussing retainers, legal fees, and escrow. It became clear that there’s some confusion over advanced legal fees paid to a lawyer.
A general retainer is a retainer paid to a lawyer for unspecified future services and for the lawyer to be available to the client in the future. For example, this might be used to engage a lawyer on a monthly or yearly retainer to be available for representation or to give the client legal advice as issues arise. Under this type of retainer, the fee paid is not an advance fee but is deemed earned immediately upon receipt. See NYSBA Opinion 570.
Recently, CNN published an article focusing on alcohol usage in the legal profession, authored by Patrick Krill Esq., the lead author of an important study that appeared in the Journal of Addiction Medicine. Mr. Krill is an attorney, board certified alcohol and drug counselor who is the director of the Legal Professionals Program at the Hazelden Betty Ford Foundation.
Posted in Character & Fitness
Tagged Alcohol & Drug Counselor, Alcohol Abuse, Alcohol Abuse Disorder, Board Certified Alcohol and Drug Counselor, Chris McDonough, Chris McDonough Esq, CNN, Diversion Rule, Grievance Defense Attorney, Hazelden Betty Ford Foundation, Journal of Addiction Medicine, Law Schools, Legal Profession, Legal Professionals Program, McDonough & McDonough LLP, New York Appellate Divisions, NYSBA Lawyer’s Assistance Programs, Substance Abuse
To every client I counsel and in every lecture I give, I try to emphasize the importance of using a written retainer agreement or retainer letter in connection with every representation undertaken. The reason: it is the simplest and most effective means by which attorneys can support their legal fees, avoid misunderstandings with clients, and defend themselves from certain grievances and malpractice actions.
Posted in Escrow
Tagged 22 NYCRR 1215.1, Attorney-Client Relationship, Chris McDonough, Gary Friedman PC v. John J. O’Neill, IOLA (Interest on Lawyer Account), Lawyers for Lawyers, McDonough & McDonough LLP, New York Grievance Attorneys, P.C. v Ganea, Seth Rubenstein, Written Retainer Agreement, Written Retainers
The Board of Law Examiners (Board) has the authority to bring charges against a test taker (applicant) for any violation of their rules (22 NYCRR 6000). The violation can be based upon observation by a proctor, a report from exam security, a report by another test taker, or by computer detection software. They do not bring charges lightly, but when they do, it is usually a serious situation.
As all lawyers should be aware, if you hold escrow, you do so at your own peril. A simple mistake that results in a returned escrow check automatically results in a notice to the Lawyers’ Fund for Client Protection and a referral to the appropriate Grievance Committee. The Grievance Committee will open a complaint, audit your account, and examine your office banking records for the six months prior to the issuance of the check. This is extremely time-consuming and can reveal small errors that could become big problems.
Several bar organizations are supporting the effort of a suspended Long Island attorney to challenge in the state’s highest court what he describes as the overly strict approach of the Appellate Division, Second Department, to enforcing disciplinary rules governing attorney escrow accounts.
A Second Department panel suspended Peter J. Galasso of Galasso, Langione, Catterson & LoFrumento in Garden City for what it called his failure to exercise “appropriate vigilance over his firm’s bank accounts” from which the firm’s bookkeeper—Mr. Galasso’s brother Anthony—embezzled $4 million in client funds (NYLJ, Feb. 27). Peter Galasso cooperated with the prosecution of his brother, who is now in prison.
Mr. Galasso’s suspension was to begin on March 21, but on March 19, Court of Appeals Judge Victoria A. Graffeo (See Profile) stayed the suspension pending determination of Mr. Galasso’s motion for leave to appeal. The Grievance Committee for the Ninth Judicial District is due to file a response by April 2.