Thursday, September 20, 2007
Debra v. Larry
With respect to the Complaint we have started looking at between Larry Birkhead and Debra Opti, please start a discussion of disciplinary rules that you think might apply. Be sure to cite the particular rule and explain why you think they might be "in play" with respect to the actions you are reading about.
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22 comments:
Hello everyone,
Here are a couple of rule violations that I came up with:
1. Rule 1.15 Safekeeping Property. Opri should have notified Birkhead of funds received on his behalf from the project. Also, she should have promptly returned the funds to him at his request, which she did not.
2. I am not really sure about this one, but here it goes......Rule 4.1 Truthfulness in statements to others. Opri’s disparaging remarks that she made about Anna and when she stated that she terminated the business relationship with Birkhead, when, in fact, it was the other way around.
3. Rule 1.5 Fees. Lawyer shall not collect a clearly excessive fee. I am no attorney, but, $620,492.84 seems a bit excessive to me.
4. Rule 1.6 Confidentiality of Information. Opri should not have revealed confidential information about the case to the MSNBC reporter.
Good Evening!
Here are two Rules of Professional Conduct I came with in addition to several stated by Jennifer!!
Rule 4.4 Respect for Rights of Third Persons.
I would use this is reference to Opri going on to the press and making unpleasant comments about Anna.
Rule 8.4 Misconduct.
The entire complaint lists misconduct on Opri’s part including but not limited to dishonesty, deception, and deceit.
Opri violated Rules:
1.16 Declining/Terminating Representation: After Birkead informed Opri that she could no longer represent him, Opri lied to the public about her discharge and tried to solicit funds in Birkhead’s name.
1.1 Competence: Opri did not have the knowledge or skill to handle Birkhead's case; she was only interested in her benefits and publicity incentive. She did not prepare or hold the legal knowledge needed
1.2 Scope of Representation/Allocation Authorization: Opri did not abide by Birkhead's requests to keep his case out of the public eye and for her not to attend personal functions (Anna's funeral). Opri did not consult with Birkhead about how to pursue objectives of representation, she keep confronted him with business proposals (the project).
6.1 Voluntary Pro Bono Service: Opri misled Birkhead to believe that the legal services Opri was providing were free of charge. Birkhead stated that he made it clear of his financial situation but Opri repeatedly charged legal fees for services rendered
7.1 Communications Concerning Lawyer’s Service: Opri did not make truthful statements about her expertise and the services she would provide to Birkhead. Opri repeatedly stated that she specialized in family law and that she knew the importance of Birkhead's paternity dispute. Opri's statements were untruthful and misleading
Hi Everyone,
well I just lost the last 20 minutes of the comment I was in the process of posting, because somehow this blog timed me out. So here goes again... (and I'm just going to keep posting in pieces so I don't lose this darn work yet again!!!!!!)
From the outset of this case, Opri was treading on thin ice as far as violations of the RPC goes. I'll try to take it in order:
1. RPC 7.2 Advertising. Section (d)
No advertisment or public communication shall contain an endorsement by a celebrity or public figure. pg 93
This rule (in the comments area) has the purpose of "avoiding the creation of an unjustified expectation of a particular legal result on the part of a prospective client".
When the tv celebrity (the reporter from MSNBC phoned LB about Opri, that expectation was set up and then further reinforced by Opri in her call to LB shortly thereafter.
post 2 to follow
post # 2
RPC 7.3 Direct Contact with Prospective Clients. Section (a)
'A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.....The term "solicit" includes contact in-person, by telephone...."pg. 94
See also Comments (1) and (2).
Opri broke this rule when she called LB to get his business. She indicated to LB that she wouldn't charge him a fee because "the publicity from her representation of Plaintiff would greatly benefit (her) legal career." The implied pecuniary gain is that she would receive more clients (and therefore, more money) in the future as the result of representing LB on such a high profile case. Furthermore, her communication with LB contained elements of "coercion" and "duress" because she told him it 'was urgent for him to travel to Los Angeles immediately, so that his legal rights in the paternity dispute could be properly protected through (her) legal representation (of him).' She was coercing him into travelling there asap so she could get him to sign papers and get the 'deal in the can'.
Post # 3
3. RPC 5.4 Professional Independence of a Lawyer. Section (c). "A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgement in rendering such legal services" pg. 79 In the comments section see #2 which states that "the arrangement does not modify the lawyer's obligation to the client...and should not interfere with the lawyer's professional judgement".
When Opri set up the interview with the MSNBC reporter, and allowed questions to be asked that violated confidential information in the case, she was violating this rule.
I also agree with Jennifer about RPC 1.5, Safekeeping Property, 1.5, Fees and !.6 Confidentiality of Information. Sheridan, I agree with your comments on RPC 1.16 (declining/terminating representation) and 1.2 Scope of Representation and possibly 7.1 Communications concerning a Lawyer's services. On this last one, I'm not 100% sure what Opri's previous experience with family law, particularly paternity/custody disputes actually is...but whatever it is in reality, the complaint seems to indicate that she overstated her experience when she said 'she had litigated hundreds of family law cases'.
Kanisha, I also agree with your citing RPC 8.4 Misconduct, because of the deceit Opri committed in signing LB on as her client, her dubious fee arrangement, her not representing his interests in the tv interview, her refusal to leave the case when he asked her to, her showing up at Anna's funeral when he asked her not to, her starting the "Danilynn Fund" and on and on. And then there's the co-mingling of funds trick that F Lee also pulled.
By the way, does anyone know just exactly what the "project" was that garnered the million dollars? Somehow I think that project was one of the steeper parts of the slippery slope that Opri was walking on in this case.
Hello everyone,
While reading the Complaint of Birkhead v. Opri, I found the following violations which some of my classmates above have already mentioned.
Rule 1.1 - Competence:
The Rule states "competent representation requires the legal knowledge, skill, thoroughness and prepartion reasonably necessary for the representation."
When Opri contacted Birkhead, she indicated she was a specialist in Family Law and that she had represented hundreds of clients regarding same. However, Birkhead believes she did not have the knowledge to represent him in his best interest. He believes she made those representations based upon the "publicity" that would come out of the case.
Rule 1.3- Diligence
This Rule states: "A lawyer shall act with reasonable diligence and promptness in representing a client."
This, however, was not the case. First, Birkhead believed Opri did not have the competence to represent him. She further delayed the resolution of his claim by litigating in forums for which she had no jurisdiction
Rule 1.6(a) - Confidentiality
This Rule states: "A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent."
Ms. Opri evidently broke this rule, by providing the media with information regarding the case after directed by the client (Birkhead) to not release any information to the media.
As mentioned by Jennifer, she also violated Rule 1.15 Safekeeping of Property.
She also violated Rule 7.3(a) - Direct Contact with Prospective Clients. This Rule states: "A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relation when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." When she contacted Birkhead to inform him she would be willing to represent him pro bono, she solicited work from him for personal gains, both financially and socially.
More posts to come.
Gracie
It seems the first ethical rule to apply to the first cause of action of the complaint, breach of fiduciary duty, is Rule 1.15 Safekeeping Property.
(A) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a client-lawyer relationship separate from the lawyer’s own property.
Section (b) states: a lawyer is required to turn over the client’s property upon request, unless otherwise stated in ethical rules, law, or agreement with the client. Birkhead claims that Opri deposited $885,000 into her client trust fund without his consent, and only turning over $200,000 of the funds. Also, that he has demanded that she turn over the remainder the funds. She is refusing, because she says Birkhead is responsible for unpaid legal fees.
(c) When in connection with a client-lawyer relationship a lawyer is in possession of property in which two or more persons, one of whom may be the lawyer, claim an interest, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
I think Ms. Opri may still be operating within here ethical duties even though she is withholding the funds.
(i) A lawyer shall not be liable in damages or held to have breached any fiduciary duty or responsibility because monies are deposited in an IOLTA Account (An Interest On Lawyer Trust Account) pursuant to the lawyer’s judgment in good faith that the monies deposited were Qualified Funds.
[5] Lawyers often receive funds from which the lawyer’s fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds must be kept in a Trust Account and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.
In the interest of fairness, the fact we have not seen Ms. Opri’s answer to the complaint, and her status as a high profile attorney, I am not sold on the allegations in the first cause of action in the complaint. Larry Birkhead is a sympathetic figure. However, I find it incredible that Debra Opri would be so egregious in her duties, knowing the media scrutiny she would be subjected. Furthermore, during the paternity suit in the Bahamas, it was a huge smear campaign. As a result, it is reasonable to believe that Birkhead and Opri used Rita Cosby’s (the unnamed MSNBC reporter) media contacts and/or investigational expertise to act as an information agent for Birkhead and Opri. If that be the case, Rule 2.3 could apply.
Rule 2.3 Evaluations for Use by Third Persons
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
Confidential Information
[5] Information relating to an evaluation is protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose information to carry out the representation. See Rule 1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the client's interests materially and adversely, the lawyer must first obtain the client's consent after the client has been adequately informed concerning the important possible effects on the client's interests. See Rule 1.6(a) and Rule 1.0(e) (Informed Consent).
I came up with the following violations:
1. Rule 1.6 Confidentiality of Information.
Opri should not have revealed any information to the public since Birkhead had asked her not to.
2. Rule 3.2 Expediting litigation.
It says in the rule, a lawyer shall make reasonable efforts to expedite litigation. Opri did just the contrary, she deliberately protracted the partenity determination litigation.
3. Rule 8.4 Misconduct
Opri can be charged with professional misconduct since she engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
4. Rule 1.5 Fees
The amount that Opri claims Birkhead owes her for the legal fees is obviously much more than the fee customary charged in the locality for similar legal services. The fee is cleary excessive. I am not sure if she can be charged with this one at all, since she had initially told Birkhead that she would represent him for free.
5. Rule 1.15 Safekeeping of property.
... A lawyer shall promplty deliver to the client or third person any property that the clinet or third perons is entitled to recieve and, upon request by the client or third person, shall promptly render a full accounting regarding such property...
Opri refused to give the amount she held in her trust account and possibly other accounts which was recieved from a third party and due to Birkhead.
This is a beautiful or ugly example of a lawyer’s MISCONDUCT and the responsibilities bestowed upon her as “a member of the legal profession, a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice.” (Preamble R.P.C. Sec 1.1.) Lets just count the rules of professional conduct that were broken. Shall I just page go straight through our little red book. NO that would take too long! Instead I would like to comment on the ones which left a strong impression on me. The petition itself is a mouth dropper and begs the question if her law school ever made her read R.P.C. in any version! Or maybe she was sick that day! In the Preamble sec4 of R.P.C. It states that “ In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication….and keep in confidence information relating to representation…”
· (Rule 1.1 sec 1) says that a lawyer does not necessarily need to have special training in the cases that they are litigating however Ms. Opri was hired under the her statement that she had litigated many family cases before. “She displayed lack of diligence and competence in this matter when she made court appearances in forums which had no jurisdiction over the subject matter of paternity and further failed to timely investigate and pursue the paternity matter in the proper jurisdictional forum”.
· She also communicated to the public and media, disclosing personal and confidential matters of the case without the client’s authorization. This wasn’t just a breach of trust but “ She made public appearances and statements which frustrated and protracted the ultimate result of the case”.
· The whole legal fee agreement sounded shady from the beginning. I mean her stating she didn’t need the money. That the publicity itself was enough? Give me a break! The petition itself stated that on two separate occasions she requested money from Mr. Birkhead in the amounts of $20,000 and $620,492. However, he did sign a fee agreement but I wasn’t clear on the terms and he obviously felt he owed money or else he would not have given her any.
· Then there is the whole issue of Safe Keeping Rule 1.5 a) & b) that was violated . Ms. Opri received money from a media “project” the client held based on his court case. She then placed the money in an account along with her personal money. Later she acknowledged all or some of it belonged to her client and gave him a portion but refused the whole amount. Isn’t that just plain theft? Im serious?
· The last issue I want to comment on which turns my stomach inside out is the issue of a fund, created solely by Ms. Opri, named the name of the innocent baby involved, whose mother had just passed and Ms. Opri knew it would receive a sympathetic financial response! Just to do nothing but pay for her and friends to eat and dine out!!!Alongside, this situation there is the accusation of checks that were written but not endorsed by Mr. Birkhead. This crosses over to criminal activity.
· Overall Ms. Opri all in all violated RULE 8.4 MISCONDUCT!!!!
For the purposes of our analysis of the complaining document, are we to take all the allegations on thier face as true?
That is a good question John. You know both sides are not 100% accurate with their statements and its hard to determine what is actually true but the facts are what determines the truth. All I found from outside reading sources that when the case was judged not to go for arbitration, which was in the fee agreement, because the judge basically thought that Birkhead's case had "stronger" evidence than Opri. I suppose that would be my first indicator over which side was telling more truth. But maybe Im wrong?
Hello Everyone:
I just got a chance to get to CCP's Computer Lab, and realized that I forgot my notes about the Birkhead vs. Opri Case. However, I wanted to make my comments anyway.
I have to say I agree with Jennifer and her reference to Rule 1.5 and the astronomical fees Ms. Opri charged Mr. Birkhead for her legal services. Or whatever you wantto call them. I also agree with Wanda in that this is an obvious "Blatant" example of lawyer misconduct as referenced in Rule 8.4 of the Code.
I'll be back tomorrow with more hopefully
I think the most important rule that was violated was 1.15 ,the safekeeping of property.If opri feels she is right , why not show the courts that the money is still there first, and then argue the fees; obviously she was fooling around with the trust account. It was also mentioned that her work was supposed to be pro bono rule 6.1...how are the legal fees over a half a millon dollars now?wierd!
Birkhead makes the serious allegation of Opri giving “confidential” information to a third party without his consent. However, he may have impliedly authorized Opri to impart said information to a third party. Here are some of the rules concerning implied authorization.
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
Authorized Disclosure
[6] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.
[16] Seventh, a lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (c)(5) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.
Rule 2.3 Evaluation for Use by Third Persons
[1] An evaluation may be performed at the client's direction or when impliedly authorized in order to carry out the representation.
Confidential Information
[5] Information relating to an evaluation is protected by Rule 1.6. In many situations, providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer may be impliedly authorized to disclose information to carry out the representation.
hello everyone,
I didnt come up with anything new and exciting to add just wanted to check in to add my agreement to all who already post.Plus add that the rules 1.2 was the 1st rule that jumped out at me because Opri and Birkhead had problems from the start with the representation from what I could tell.Then rules 1.5,1.6,1.15(a)&(b) and of coure all of rule 8.4 applies. Thats all for now see you in class.
This just In!!!
To add fuel to an already roaring fire, Debra Opri filed a lawsuit today against Larry Birkhead. Her claims are defamation, breach of contract, and fraud. I tried to get the document, but there was something wrong with the link. I watched her live on a cable news show giving a short interview to discuss her suit. She claims she never handed any confidential documents to anyone, and that she was the one that withdrew from representing Birkhead. In fact, she says she had to get a court order to get released, because Larry Birkhead refused to let her go. There is a court document supporting this. Opri's new rallying Cry: "Ive had enough of Larry Birkhead!!" The plot thickens!
Well, at least Opri didn't break Rule 7.3. Page 12 of the complaint reminded me of F. Lee.
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