Saturday, March 8, 2008

Disqualifying Fannick: Law & Argument

Demetrius Fannick and Harlow Cuadra

While this may not be the most interesting part of the current legal quagmire (to some)... I wanted to post more of the Commonwealth's Brief in Support of Motion to Disqualify Attorney Demetrius Fannick from Representing Harlow Cuadra... this portion basically covers previous case law, and does bring up some interesting points. The actual text is over 20 pages long, so I'll be breaking this up in sub-posts similar to what I did for the Black's Beach Tapes:


1. Commonwealth v. Brooks
2. Capital Care Corp. v. Hunt
3. Minnich v. Yost
4. Cost v. Cost
5. Sheinkopfv v. Stone
6. Kurtenbach v. TcKippe, Et al.
7. Dixon v. O'Connor, Et al.
8. Rule of Professional Conduct 1.9
9. Rule of Professional Conduct 1.7
10. Wheat v. United States
11. U.S. v. Bradford
12. U.S. v. Joyce
13. Rule of Professional Conduct 1.18
14. Explanatory Comment to Rule 1.18
15. Rule of Professional Conduct 1.0
16. Lawyer's Duties to a Prospective Client
17. Comment
18. Illustrations
19. Reporter's Note
20. Conclusion (previously posted on 02/26/08)

In Commonwealth v. Brooks 576 Pa. 332, 839 A 245 (Pa..2003), the court wrote, “It should go without saying that no lawyer, no matter how talented and efficient, can possibly forge a meaningful relationship with his client and obtain adequate information to defend that client against first-degree murder charges in a single thirty-minute telephone conversation. Although a lawyer can always learn certain information from his client over the telephone, we simply would be discounting the gravity of a death penalty case were we to say that a lawyer representing a defendant in such a case has done his job effectively when he has spent only limited time on the telephone with his client. Indeed, the very nature of a capital case, typically quite involved and always subjecting the defendant to the possibility of death clearly necessitates at least one in-person meeting between a lawyer and his client before trial begins. Without such a meeting, there is little to no hope that the client will develop a fundamental base of communication with his attorney, such that the client will freely share important information and work comfortably with the lawyer in developing a defense plan. Moreover, only a face-to-face meeting allows an attorney to assess the clients demeanor, credibility, and the overall impression he might have on a jury. This is of particular importance in cases in which the client may take the stand in his defense or at the penalty phase in an attempt to establish the existence of particular mitigating circumstances. As Appellant was deprived of the benefits of a face-to-face meeting here, it is clear that Appellant’s ineffectiveness claim has arguable merit.” See Com. v. Douglas 558 Pa. 412, 737 A.2d 1188, 1199 (Pa. 1999).

Attorney Fannick met with Joseph Kerekes, who faces the death penalty, eight (8) times, including on January 11, 2008 when he met with Kerekes immediately prior to meeting with Cuadra.

A. An attorney-client relationship existed between Attorney Fannick and Joseph Kerekes.

In Capital Care Corp. v Hunt 847 A.2d 75, (Pa.Super 20040, the court wrote:The law which governs the practice of law in this Commonwealth does not require a traditional fee-for-service contract to be executed between an attorney and a prospective client to create an attorney-client relationship. See, e.g., Minnich v. Yost 817 A.2d 538, 542 (Pa. Super.2003). Absent an express contract, an implied attorney-client relationship will be found if the following are shown: (1) the purported client sought advice or assistance from the attorney; (2) the advice sought was within the attorney’s professional competence; (3) the attorney expressly or impliedly agreed to render such assistance; and(4) it was reasonable for the putative client to believe the attorney was representing him. Id., 817 A.2d at 542. Accordingly, although Appellee withdrew “formally” from Appellant’s representation on September 23, 1986, the testimony presented at trial was sufficient to demonstrate that, at the request of Fishbone, Appellant’s agent, Appellee continued to advise and assist Appellant regarding matters of corporate law and securities transactions, Appellee’s professed areas of expertise.

In Minnich v. Yost 817 A.2d 538 (Pa. Super. Ct., 2003), in 1997, Minnich's father consulted with Attorney Yost for advice on estate planning. At that time or at some time later, he delivered both his own will and the will of his deceased wife to Yost. At the consultation, Yost knew or was advised of Vera Minnich’s death, and he knew or should have known that her will had not yet been probated. Nevertheless, Yost did not advise Minnich’s father to have Vera Minnich’s will probated, took no initiative to have the will probated, and never advised Minnich’s father to notify other family members of the existence of the will. A beneficiary of Vera’s will sued Attorney Yost. The Minnich court wrote:

“Minnich’s second and third issues combine to state that he has standing to bring a negligence claim for breach of duty owed him as an intended third party beneficiary of Yost’s implied contract to represent Vera Minnich’s estate. To support this claim, Minnich relies on pleaded facts that: Minnich’s father consulted with Yost for advise on estate planting, told Yost that Vera Minnich had died, and gave Yost both his and her valid wills; Yost took the wills and noticed that Vera’s had not been probated, but kept it in his possession without effecting probate or assuring that Minnich-as-named beneficiary be informed of the will’s existence; as an experienced attorney and officer of the court, Yost had a duty to promptly effect probate and to promptly advise Minnich of his beneficial interest in the will; Yost’s failure to produce the will for probate until Minnich requested the register of wills to issue a citation directing production was intentional, and it cost Minnich considerably both in the way of fees connected with the discovery of the will and in non-economic damages.”

“First, we agree that the complaint alleged sufficient facts to aver that Minnich’s father and Yost entered into an implicit contract for legal services pertaining to Vera Minnich’s estate. ‘Absent an express contract, an implied attorney-client relationship will be found if 1) the purported client sought advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional competence; 3) the attorney expressly or impliedly agreed to render such assistance;and 4) it is reasonable for the putative client to believe the attorney was representing him.’ Cost v. Cost 450 Pa.Super. 685, 677 A.2d t250,1254 (1996). Here, the pleadings satisfy the standard’s first two factors with the averment that Minnich’s father conferred with Yost for his competent legal advice. Moreover, by averring that Yost knowingly accepted and kept possession of the original will of Vera Miimich, whom Yost knew to have recently died, the pleadings satisfied the third and fourth factors that Yost impliedly agreed to assist the estate and that Minnich’s father reasonably believed such assistance would commence.”

Part of a lawyer’s job at times is to address the press and media. It is noted that Attorney Fannick made statements to the press, including, “I believe it (Mr. Kerekes case) is very defendable.” Rule 3.6 of the Rules of Professional Responsibility states:

“Notwithstanding paragraph (a), a lawyer may make a statement a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”