Tuesday, August 24, 2010

Did Alabama State Bar Use Extortion Against Judicial Candidate?

Kenya Lavender Marshall
A Birmingham lawyer says an Alabama State Bar disciplinary committee essentially used extortion to force her to agree to a suspension of her license, probably ending her candidacy for a seat on the Jefferson County Circuit Court.

Kenya Lavender Marshall won the Democratic Party primary and faced no Republican challenger in the November general election. But the Alabama State Bar charged that she misappropriated some $30,000 of a client's funds that had been held in her lawyer trust account.

Marshall said she admitted to the charges and agreed to the four-year suspension of her license only because of threats from the State Bar disciplinary committee. In fact, Marshall denied that she had misused client funds.

The State Democratic Executive Committee will meet this afternoon to vote on a motion to rescind Marshall's candidacy and name her replacement if she is removed. A divided Jefferson County Democratic Party narrowly recommended Judge Nicole "Nikki" Still as the nominee if the state party removes Marshall.

Still, who is white, was appointed to the seat by Gov. Bob Riley but came in second to Marshall in the primary election. Marshall, who is black, drew strong support from State Rep. John Rogers (D-Birmingham), among others.

Rogers said the controversy could wind up hurting Jefferson County Democrats in the November general election. Perhaps most troubling, however, was Marshall's description of her interactions with the State Bar disciplinary committee. Reports The Birmingham News:

"I hate that we've even come to this point," Marshall said tonight. "I was told that if I did not submit, I would never practice law in the state of Alabama again."

The State Bar issued an interim suspension of Marshall's license on August 3, after she had won the primary, charging that she spent a client's money to shop, pay bills, and write checks to herself. Tony McLain, general counsel of the Alabama State Bar, said Marshall formally admitted to the charges on Monday. But Marshall later said that came only because of threats from the bar committee regarding her career:

Marshall said tonight that the situation was a mistake connected to her changing bank accounts at the start of her campaign.

"I didn't steal anything from anybody," she said. "Stealing is taking something with the intent to deprive the owner."


Robby Scott Hill said...

I know white lawyers who have accidentally transferred client trust fund money who were allowed to make it good with no consequences other than a private ass chewing from The State Bar. This is clearly a case of The State Bar Staff getting involved in politics.

legalschnauzer said...

Rob: Thanks for your insight. Is it pretty easy for that kind of thing to happen? It's possible that Kenya Lavender Marshall is a big-time scoundrel. But I wonder if she is being hammered not because of any grave offense she committed, but because she won the primary election and has no challenger in November.

Anonymous said...

I know that it doesn't fit your narrative, but Ms. Marshall did not say (at least not as reported in the newspaper) that THE BAR told her that she had to admit her guilt or face permanent disbarment. It is just as likley that she was told that by her lawyers, who were desperately trying to cut the best deal that they could in light of her clear violations. Her claim that she accidentally wrote herself $30,000 worth of checks is nonsense.

legalschnauzer said...

Anon: It's not a matter of what fits my narrative; it's what makes sense, based on the reporting we have--and I agree that is sketchy. How would Marshall's lawyers tell her she had to admit guilt or face permanent disbarment if they had not been told that by the bar? Her lawyers have no authority to make such a statement, unless it came from the bar. If they did make such a statement, without it coming from the bar, Ms. Marshall probably would have a nice malpractice case, seems to me. Also, there is no indication that Marshall was not present for the entire proceeding. I see no indication that she was having to rely on word from her attorneys.

Robby Scott Hill said...

Many law firms operate multiple client trust accounts - one for contingency cases, another for "flat rate" cases, still another for personal injury matters involving Medicare and CMS where the attorney "squashes" medical bills during settlement negotiations. Some complex litigation matters will involve one client having monies in all these accounts. When the attorney has his operating account at the same bank, it's easy for communication problems to arise and ledger entries to be made in the wrong account by a law firm employee or a bank employee. Trust accounting is nothing like balancing a personal checking account. Mistakes can and do happen. A responsible attorney will keep a cash reserve and insurance to cover these situations and report them to the client and the bar upon discovery. It seems to me that Ms. Marshall was unaware of the problem until somebody went looking for it.

Anonymous said...

Keep in mind that the matter was in front of a disciplinary panel of the State Bar and was being prosecuted by the Bar's General Counsel. It is reasonable to assume that the General Counsel's office told Marshall's lawyers that she could either plead guilty or the General Counsel's office would seek to have her disbarred in a subsequent hearing. In the same way that a criminal defense attorney would advise her client to plead guilty or face the risk of a much longer prison term if he goes to trial. Happens every day. I suspect that Marshall's lawyers advised her that if she did not plead guilty and accept responsibility for her actions, that she faced the very real possibility of being disbarred. It is what I would have advised her if the evidence was as represented. That does not mean that the disciplinary panel used "extortion" it just means that Marshall cut a deal to avoid the risk of a much harsher punishment. I guarantee you that nobody on the disciplianry panel told her that they would disbar her unless she plead guilty.

Anonymous said...

I have to disagree with you Mr. Hill. I practice law in the state of Alabama as well and think you are comparing apples and oranges in your comments. Yes, many firms have multiple client trust accounts and sometimes money may be placed in the wrong account just b/c mistakes happen, especially when dealing with numerous accounts/clients/attorneys....HOWEVER.....money that is misplaced in client trust/firm accounts by firms/attorneys that have a substantial amount of money in other firm/attorney accounts to cover any amount that is misplaced (so there was actually never any funds being used that were "on credit" so to speak) is NOT the same as what Marshall did by any stretch of the imagination.

To begin with, she wasn't at a large firm where there were 100's of accounts and she wasn't actually 100% hands on with the accounts. She was in practice for herself and would have been 100% in touch with exactly what went in and out of all accounts....not to mention the fact that we are also talking about a sitution where she had a fraction of the # of accounts as a larger firm has.

The most important difference here is the fact that Marshall blatantly paid numerous household/personal bills out of the client trust account when that money was already earmarked for her client's creditors and ignored collection attempts and inquiries by the client and creditors regarding the unsatisfied debts ultimately resulting in the creditors suing Marshall's client over these upaid debts.

Now, if you can make a reasonable argument on Marshall's behalf that her client was sued simply b/c of an accounting oversight when in reality she had the money to pay the client's bills, but her accounts were so confusing she didn't understand this fact, then you sir are a lawyer like no other in history.

What Marshall did was STEALING and not only did the client have damages due to her theft of his property, he suffered additional damages from the creditor lawsuits. There is not an attorney in this state, black or white, who has done what Marshall did and received only an "ass chewing" behind closed doors by McClain or anyone else at the bar. Maybe this was the discipline in the cases like you described where there is a true clerical error, but the client was never in any real danger of being completely deprived of their money, not to mention sued, since the firm/attorney had enough to cover the error in another account and could simply transfer it over.

I, and many attorneys I know, are shocked she didn't loose her law license forever since there have been plenty of attorneys before her suffer that fate for similar actions. I also have never heard of a suspension anywhere near the 4 years Marshall received and I think its obvious the disciplinary comm didn't want to contribute to the controversy surrounding this case any more than was necessary so instead of yanking her license, they gave her the longest suspension ever.

The only question I see left to be answered here is whether Marshall will face criminal charges for her actions. This is NOT a race issue whatsoever and anyone who tries to make it one is either misinformed or trying to stir the pot.

legalschnauzer said...

Anon: Thanks for some thoughtful comments (assuming these are all from the same Anon). I can' speak for Mr. Hill, but for me, the State Bar would have more credibility on cases such as this if it didn't let so many other attorneys off the hook for serious misconduct. I've written extensively on this blog about William E. Swatek, an attorney from Pelham who has a 30-year history of ethical violations with the Bar. He even was tried in criminal court for perjury in the early 1980s. But he still has a bar card, receives tons of favors from Shelby Co. judges, and has helped cheat my wife and me out of tens of thousands of dollars. When I filed a bar complaint against him, there wasn't even an investigation. I hired three different attorneys to represent me in the bogus lawsuit Mr. Swatek filed on behalf of my criminal neighbor, and they took about $17,000 of our money and did not remotely do what they, by law, should have done to represent my interests. They also failed to report blatant misconduct to the proper tribunal, as they are required to do by the code of professional conduct. When I asked for my money back, these three lawyers refused. In my view, their actions pretty much amount to theft. When you add it all up, my wife and I have lost way more than Ms. Marshall's client lost, and the State Bar hasn't investigated anyone--and all of the lawyers I hired, and Mr. Swatek, are white. The Alabama Judicial Inquiry Commission is even worse, doing virtually nothing to sanction corrupt judges. Because the legal profession has failed so miserably to police itself, in my case and many others, I wonder about its motives when it comes down so hard on a black, female attorney who just happens to have recently won a primary election over the establishment's preferred candidate. You sound like someone who takes legal ethics seriously, and I applaud you for that. What can you say to someone like me who has been repeatedly cheated by members of your profession, only to see the State Bar do nothing about it?

clickityclack said...

ok, I was the last Anon to post, but I didn't post the earlier comments. I forgot I could log in and comment when I posted before.

Legalschnauzer, 1st of all I’m very sorry you have been through such a terrible ordeal. Unfortunately, there are bad attorneys and judges just like there are bad teachers, doctors and all other human professions. I agree with you that, in general, the Bar does not come down hard enough on attorneys who violate the code of ethics and it sets a really bad precedent on so many levels. However, this lack of enforcement has nothing at all to do with race. You commented that the bar had come “down so hard on a black, female attorney who just happens to have recently won a primary election over the establishment's preferred candidate,” but they didn’t come down hard on her at all and the investigation into her actions was initiated well before the election. In my opinion, the discipline of Marshall actually fits your initial argument that the Bar doesn’t punish attorney misconduct harshly enough, instead of an example of the Bar’s disparate treatment of attorneys based on their race. If the Bar is going to become tougher with attorneys for misconduct as we both want to see then they have to start with someone, right? It is unfortunate that Marshall happens to be black b/c it has caused the actual bottom line issue here to be forgotten and that is her clear and proven violation of the Rules of Professional Conduct, which is why we are even having this discussion in the first place.

The Rules of Professional Conduct cover many topics, but many of the most important and most strictly monitored rules are regarding client funds and trust accounts. The reasons for this strict monitoring are obvious and very necessary. Here is the exact language of the rule - http://www.sunethics.com/al_1_15.htm As you can see, the record keeping and reporting that is required by the Bar regarding these accounts is extensive and isn’t flexible for any attorney, no matter who they are. A quick scan of the past couple of disciplinary reports from the Bar shows that there have been 6 attorneys disbarred in the 2 or so months those 2 reports covered and 4 of the 6 were involving an attorney’s misuse of client funds. I do not claim that this is in anyway a scientific reporting of these stats…lol, but a quick scan of the lesser punishments included in each disciplinary report showed only 1 or 2 of those cases involved misuse of client funds and each of those were actually the preliminary suspension based on probable cause that was found by the Office of General Counsel allowing them to proceed with an investigation into the attorney’s conduct, so this doesn’t necessarily represent the ultimate punishment that each will receive since if they are found guilty then they would receive an additional punishment, typically disbarment. I will admit, I have no idea of the racial breakdown for the attorneys who were disciplined, but I don’t think it would matter.

legalschnauzer said...

Clickity: Thanks for the data and an interesting comment. It certainly makes sense that the bar would be particularly vigilant on cases involving client funds. Unfortunately, lawyers can "steal" from clients in a number of ways, besides fiddling with trust accounts. The lawyer who takes a big check up front or bills every month and then does nothing--or fails to take clearly needed action to protect the client--is also stealing, in my view. And I've seen little sign that the bar does much of anything about this.
I think we agree that the bar should be much tougher across the board, especially with lawyers who have an extensive record of misconduct, such as my friend Mr. Swatek.

Robby Scott Hill said...

The charges against Ms. Marshall, whether true or not, are a means to an end. The outcome is keeping Governor Riley's hand picked judge in office in a county where his son, Rob Riley, has considerable business before the court. The actions of The State Bar have deprived the people of their right to vote. The State Bar should have waited until Ms. Marshall took office and Governor Riley had left office and deferred this matter to The Judicial Inquiry Commission which is better suited to determine the qualifications of a judge. The Bar has gotten itself into trouble before by trying to remove a sitting judge. Ms. Marshall was the unopposed nominee of the Democratic Party and the justice apparent. She deserved the benefit of the doubt and to have her case heard before The Judicial Inquiry Commission. The State Bar would still have the right to take further action against her after she was removed from the bench. The Bar waited too late to take action against her, making this look like a political hit, especially with Riley leaving office in January. Even Presidential nominees get Secret Service protection until the election is over. However, I disagree that The Bar used extortion. Perhaps someone outside the judicial branch of government was using extortion against The Bar if he didn't get the outcome he wanted.

legalschnauzer said...

Rob: Thanks for a great point about Rob Riley being in Jeffco and having a lot of business before the court here. That could provide plenty of motivation to torpedo Kenya Marshall Lavender, whether the charges against her are true or not. I'm starting to think the Rileys are a political hybrid, spreading corruption on both parties. Obviously, they have conservative leanings because Gov. Bob is a GOPer. But Rob is pretty much a trial lawyer, so he has connections to folks in that arena, who tend to be Democrats. Quite a few big-time Democrats probably are not trustworthy at the moment because they have professional connections to Rob Riley--and those connections can help them generate lots of dollars. I've seen federal court documents that strongly indicate Rob Riley is a total sleazebag. But certain Dems don't seem to care. Greed trumps principle every time. By the way, I should mention that, regarding the state bar, I didn't mean extortion in the literal/criminal sense. I just meant the general "applying pressure in an effort to get a desired result" sense. Based on my personal experience, I would say the legal profession amounts largely to legalized extortion. Anyone who's had a lawsuit filed against them, especially a bogus one, probably knows what I'm talking about.

Robby Scott Hill said...

You're welcome Roger. I agree on the principle of "legalized extortion." I should have explained that better. We hardly ever talk about him, but that's all Governor Blagojevich was doing in Illinois. I don't see where Blagojevich broke the criminal law. Now, back to Alabama, The State Bar as we know it didn't exist during Reconstruction, but the White Conservative Democrats of the day got rid of all the Black & White Republicans (Republicans were the "good guys" back then) by having the police arrest them on questionable charges before they could get re-elected. They don't like to talk about it, but The Alabama State Bar was created by White Supremacists to get rid of all the Jewish "shylock" or "shyster" lawyers who were suing White People. The anonymous commentator is correct that it's no longer so much about race. It's more about holding the correct political ideology and walking in lockstep with the powers that be. They might not be able to buy you, but they can and will remove you. Can't you just see a powerful Alabama politician and his son on the telephone talking about Ms. Marshall using pretty much the same language Governor Blago used: Pops - "Son, this thing, it's fu%#ing golden!" Junior - "Yeah, dad it could be very lucrative for us. How are we gonna get rid of that woman?" Pops - "I'll call in a favor at The State Bar." The enforcement of the rules of professional conduct are arbitrary and capricious. Like the federal mail and honest services fraud laws, The rules of professional conduct are written with "catch all" provisions so they can get rid of anyone they need to, especially the people who don't play along with Bob & Rob.

Anonymous said...

In addition to Marshall's ethics problems having nothing to do with race, they also have nothing to do with Riley. Although it is true that Judge Still was appointed by Riley, he had to make that appointment from among three people who were selected by a non-partisan Jefferson County judicial selection committee. All three of the people nominated were Democrats (including Judge Still) and all three told Riley that they would run as Democrats if selected. Finally, Ms. Marshall is going to be removed from the ballot beacuse she voluntarily surrendered her license to practice law beacuse she was guilty of the things she was charged with, not because Rob Riley is a powerful force in Jefferson County. There are plenty of us Democrats in Birmingham who supported Judge Still and who demanded that Ms. Marshall be removed. You guys lose credibility when you try to make everything about how evil Riley is.

Robby Scott Hill said...

Don't think that anything affecting State Government in a major way goes down unless Governor Riley is notified and is given a chance for input. I worked at a state agency from 2003 to 2004 & I saw Governor Riley come to meetings and my boss go to Riley's office soon after the phone rang. You don't do things like The State Bar just did without picking up the phone and calling The Chief Justice and Governor Riley. Keith Norman would be so out of a job if he did. This wasn't some dude applying for an unemployment check or a pot hole at some country crossroads getting fixed. Bob Riley & Chief Justice Cobb were kept in the loop. I'm sure the Gov. gave it a green light when he thought he could keep his pick on the court. This incident was probably even part of a larger deal between Riley's people and another entity, sort of like in baseball where you trade a star player for two rookies and a player to be named later. I hope Riley traded for something else besides Judge Still because if he didn't he was outsmarted.

M. Varn Chandola said...

I have written an article, "Does Your Attorney Return Your Calls?" concerning an attorney's obligation to return client calls. Please feel free to read the article at http://rightlegalhelp.net/blog/attorney-return-calls.

M. Varn Chandola

Anonymous said...

Is the issue regarding Marshall really about black or white? The issue is about right or wrong. She wrongfully ignored numerous attempts to negotiate, or settle her clients' medical debts. She wrongfully ignored the standard code of legal representation when greed suffocated any logic. She wrongfully allowed her client to face the exact financial scrutiny, she won a case to protect. She blatantly splurged, keeping her livelyhood afloat, while exhausting her clients' ability to sustain. Yes, others before her have been fortunate, where their wrongdoings have been swept under the rug. Does that mean extortion? No. This signifies justice. One day at a time. One corrupt lawyer at a time. If the corrupt predecessors before her had suffered the same demise, she may have harbored relunctance. Instead, she must be the example. Not the exception-because of her ethnicity or gender. Nor the exception-based on the politics in the state where her law license resides. Allowing a questionable individual to take a position before starting an investigation is pure insanity. If lawyers are allowed to break laws, how redundant are we to hire them? Everyone should be subjected to penalty, whether you hold a license or not.