Saturday, May 19, 2018

Bar Discipline In The DMV

The bar discipline matter In re Seth Robbins was argued before the District of Columbia Court of Appeals last Thursday.

Although I regrettably was unable to attend, I understand that an issue was raised of practical consequence to the operation of bar discipline in the District, Maryland and Virginia.

The key issue in the case is whether the complainant and lawyer had an attorney-client relationship with respect to a business transaction (the client guaranteed the debt of another client) that turned into financial disaster. 

After a full evidentiary hearing had been held and adverse findings rendered by a D.C. hearing committee, Virginia inexplicably acted.

As described by the Board on Professional Responsibility

We reject Respondent’s argument that we should defer to contrary findings of a three-judge panel in Virginia that considered the hearing transcript, exhibits, and Hearing Committee Report. We recognize that the doctrine of offensive collateral estoppel applies in disciplinary proceedings, and “‘renders conclusive . . . [the] determination of an issue of fact or law when (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.’” In re Wilde, 68 A.3d 749, 759 (D.C. 2013) (alterations in original) (quoting Modiri v. 1342 Restaurant Group, Inc., 904 A.2d 391, 394 (D.C. 2006)). Pursuant to this doctrine, a respondent may be precluded from relitigating an issue that has already been decided against the respondent in a foreign jurisdiction. Id. at 761 & n.16 (“This court has further provided for the regular application of offensive collateral estoppel in a significant category of bar discipline cases by adopting D.C. Bar R. XI, § 11(c), which calls for the imposition of reciprocal discipline on members of the D.C. Bar upon whom discipline has been imposed by another disciplining court . . . .”). “Under principles of collateral estoppel, in reciprocal discipline cases we generally accept the ruling of the original jurisdiction, even though the underlying sanction may have been based on a different rule of procedure or standard of proof.” In re Benjamin, 698 A.2d 434, 440 (D.C. 1997) (citing In re Richardson, 602 A.2d 179, 181 (D.C. 1992) (per curiam) (collecting cases)).

Respondent here seeks to invoke defensive collateral estoppel, which allows a defendant to prevent a plaintiff from relitigating an issue the plaintiff already litigated and lost. See Walker v. FedEx Office Print Servs., Inc., 123 A.3d 160, 164- 65 (D.C. 2015) (discussing defensive collateral estoppel generally). However, Respondent cites no cases in which Disciplinary Counsel has been precluded from prosecuting a respondent who has been exonerated in a foreign jurisdiction. R. Br. 37. On the other hand, Disciplinary Counsel cites examples of cases in which a respondent was prosecuted here after a foreign exoneration. Disciplinary Counsel’s Br. 21 (citing Wilde, 68 A.3d at 759 (Disciplinary Counsel not precluded from litigating issue decided in respondent’s favor in Maryland disciplinary proceedings), In re Peterkin, Bar Docket No. 387-07 at 38 (BPR Nov. 7, 2011) (preclusive effect not given to Maryland disciplinary proceedings when Disciplinary Counsel was not a party) (appended Hearing Committee Report), and In re Berryman, 764 A.2d 760, 766-67 (D.C. 2000) (probate court finding not binding on Disciplinary Counsel when Disciplinary Counsel not a party)). We recognize that in all of these cases the record in the foreign jurisdiction was different from the record developed here and that, in this case, the evidentiary records overlap because the Virginia panel considered the evidentiary record presented to the Hearing Committee, and the Hearing Committee Report itself, before reaching a contrary conclusion as to the existence of the attorney-client relationship.

The two proceedings, however, were not identical. The Virginia panel did not hear live witnesses and did not read Disciplinary Counsel’s brief to the Hearing Committee. It did hear argument from Virginia’s Bar Counsel and Respondent, which this Hearing Committee did not hear. See R. Br. 3. Given these differences, and the fact that the D.C. discipline system had already conducted a live evidentiary hearing, and a Hearing Committee had prepared a report based on that live evidentiary hearing before the case was considered in Virginia, we see no reason to defer to the findings of the Virginia panel.

The Virginia order is linked here.

It is hardly a valentine per Judge Hupp

Quite frankly, we do not like the decision we make today...we have a lot of criticisms of Mr. Robbins' conduct and certain aspects of the conduct cause us substantial  concern. However, after wrestling at length with that high burden of proof and carefully weighing the evidence in its light, we find that the evidence falls short, but barely so. 

The board here, of course, gets it right. But one is left to wonder why the Virginia Bar Counsel decided to go forward with an original proceeding only without the witnesses. 

The board recommends a 60-day suspension for, in the main, an undisclosed conflict of interest.

The bigger picture involves the fact that there is a significant bar membership overlap between Virginia, Maryland and the District of Columbia.

But there are also significant differences in how those three jurisdictions investigate, prosecute and sanction misconduct. For instance, Maryland's harsher views on serious dishonesty has spawned a veritable cottage industry of reciprocal discipline downward departures in the District of Columbia and increases in Maryland.

One of my more interesting bar sanction cases as a prosecutor involved a truly voluntary self-report of serious dishonesty. Maryland increased the sanction to disbarment as reciprocal discipline. 

When someone complains about a multi-admitted attorney, complaints are typically filed wherever the accused attorney is admitted.

It is imperative that the various Bar Counsel offices work cooperatively to avoid exactly what occurred here.

The good news for Respondent - presumably he will not face reciprocal discipline if and when he is suspended in D.C. (Mike Frisch)

May 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 18, 2018

Settled Law

The Rhode Island Supreme Court has publicly censured an attorney who pursued a settled and released claim on behalf of his clients.

He was retained to secure the return of a security deposit. The claim was settled and a full release of all potential defendants was signed by the clients.


The Ruggieris did not feel they had been fully compensated, as they had incurred a legal fee to obtain the return of their deposit. They discussed with respondent what further actions may be available to them to secure complete recovery of their funds. It was at this point that respondent began a course of conduct that directly led to these disciplinary proceedings.

Matrone had not filed an answer in the civil action. Well aware that the $15,000 deposit had been returned, and even though respondent had prepared the settlement release which applied to the sellers and their agents (Matrone was at all times acting as the sellers’ agent), respondent sought and obtained a default judgment against Matrone on November 12, 2015. On December 18, 2015, he filed a motion for an oral proof of claim, with a hearing date of January 22, 2016. However, in his pleading he misidentified Matrone, and the notice was forwarded to the wrong address. Matrone did not receive the motion or notice of the hearing date.

On January 22, 2016, respondent and Paul Ruggieri appeared before a hearing justice on the scheduled motion. Matrone was not present. At the beginning of the hearing the justice specifically inquired of the respondent: “Are the defendants in default?” The respondent did not advise the court that his clients had previously received the return of their deposit. Rather, he responded: “Yes, your honor. There’s only one we are seeking relief against here.”

The court heard the testimony of respondent’s client. The respondent elicited testimony that Matrone did not refund the $15,000 deposit. However, he did not ask his client if the deposit had been returned by anyone else. He further asked his client: “[A]re you asking this Court for the entry of default judgment against her for that amount, $15,000, plus interests and costs?” The client answered: “Correct.”

Unaware that the $15,000 deposit had been returned, the hearing justice entered a judgment against Matrone for return of the $15,000, plus statutory interest, costs, and an attorneys’ fees award. Matrone became aware of the judgment when she was served with an execution. On her behalf, the William Raveis agency obtained legal counsel, and on March 31, 2016, respondent consented to an order vacating the judgment against Matrone. On October 7, 2016, the civil action against Matrone was voluntarily dismissed
with prejudice, and with no judgment, interest or costs. 

Matrone filed the bar complaint.


The board found many mitigating factors that impacted the severity of the recommended sanction. The respondent has been a member of the bar for 27 years. He has appeared before virtually all of the tribunals in this state, and this is his first disciplinary infraction. He has performed a significant amount of pro bono and reduced fee work for clients with the need, but without the means, for legal services. He has a reputation for honesty and courtesy in his dealings with the courts and with his peers. Additionally, he was fully cooperative in the disciplinary proceedings, recognized his misconduct, and accepted the consequences for his actions. After considering the agreed statement of facts and the significant mitigating factors, the board recommended that a public censure is appropriate in these proceedings.

After review of the board’s findings and recommendation, we concur with the board. We are deeply troubled by the respondent’s lack of candor in this matter. We have previously suspended attorneys from the practice of law for making misrepresentations to a court. See In re Vigue-Thurston, 143 A.3d 1080 (R.I. 2016) (sixty-day suspension); In re Gelfuso, 108 A.3d 208 (R.I. 2015) (thirty-day suspension). However, we believe the respondent has presented sufficient mitigating factors to warrant a departure from the severity of sanctions imposed in similar cases. In addition, we believe that the respondent is truly remorseful for his conduct, and that he is not likely to engage in similar acts in the future.

(Mike Frisch)

May 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Better Not Call

A Michigan Tri-County Hearing Panel disbarred an attorney who had a colorful history of creative misconduct

The Detroit News reported

A Metro Detroit lawyer with a history of misconduct was disbarred Tuesday after a law student suspected that he had forged another attorney’s signature on documents filed at the Michigan appeals court.

Robert Slameka’s law license was taken away by a panel at the Attorney Discipline Board. He didn’t appear at the hearing.

In 2011, Slameka accepted $7,500 to handle an appeal for Damitrice Vann, who was convicted of carjacking and other crimes in Oakland County, according to the Attorney Grievance Commission.

He was accused of subsequently filing court documents under the name of another attorney, Matthew Evans. The filings occurred just before Slameka began serving a 90-day suspension for misconduct in another matter.

“I did not work on your case nor did I file any pleadings on your behalf. … I don’t know why or how this occurred,” Evans said in a letter to Vann.

Slameka, 74, denied wrongdoing during a brief interview with the Associated Press.

“I’m long gone, dude. I’m out of the game,” he said. “I’m living life, and I’m really enjoying it.”

Abbey Lent, a student at University of Michigan law school, was the first to become suspicious.

For other reasons, she was reviewing Vann’s conviction as a possible new case for the school’s Innocence Clinic. Lent looked at the file and noticed that Slameka had told the appeals court that Evans was taking over as the attorney.

“Evans’ signature looked weird,” Lent said. “He confirmed he had never worked on this case. He signed a sticky note, scanned it and faxed it to us. His signature looked nothing like the signature on the substitution form.”

Slameka’s law license was suspended for six months in 2015 after misdemeanor convictions for larceny and breaking and entering. He was well-known at the Wayne County courthouse and had many court-appointed clients.

Slameka had been criticized for his handling of several cases, including the wrongful-murder convictions of 14-year-old Davontae Sanford, who spent eight years in prison.

Sanford told The Detroit News in 2016 that Slameka advised him to plead guilty to four murders he didn’t commit and to seek a bench trial.

Detroit News also covered the Sanford case and noted

The attorney who convinced 14-year-old Davontae Sanford to plead guilty to four drug house murders he didn’t commit is trying to get his law license back after it was suspended for breaking into his ex-girlfriend’s house.

Robert Slameka also lost his driver’s license years ago because he owed more than $600 in unpaid parking tickets. At a recent Michigan Attorney Discipline Board hearing to determine whether to restore his law license, Slameka blamed his “drunken” wife for the 42 outstanding infractions, saying she would become intoxicated and throw the tickets away without telling him.

There was a hole in his story, though: His wife was dead when the tickets were issued.

His mother was dead, too, but that didn’t stop Slameka from posthumously forging her name on her stock dividend checks and depositing them into his bank account...

Slameka’s habit of doing business in a casino hotel lobby was also criticized in the [bar counsel] report.

“One is hard pressed to understand (Slameka’s) reluctance to maintain an appropriate office system given his financial resources and the need to serve his clients appropriately,” Bullington wrote. “(Slameka) had over $760,000 in his bank account, two homes ... and stock holdings. The question remains of why he (didn’t get an office)?”

Bullington cited an exchange between Slameka and discipline board panelist Paul Fischer during the April 1 hearing:

Fischer: “Where’s your new office?”

Slameka: “The hotel lobby of the downtown casino.”

Fischer: “You know, it sounds like ‘Better Call Saul.’ ”

Bullington pointed out how Slameka was caught lying when questioned about more than $600 he owed from outstanding parking tickets.

During the April 1 hearing, Slameka said of his wife: “In her drunken state (she) would just park someplace, the car would get ticketed, and she’d either throw them on the ground or put them in the drawer, which I found later, and I did not know until the Secretary of State wrote me and said you can’t get a driver’s license.

“I said why? And they said you have this amount of tickets. Well, what am I going to do? She’s not here, so I went down to the horrible place on Lafayette and Sixth and paid them.”

Bullington noted that Slameka’s wife, Susan, died in May 2008 — before some of the tickets were written.

Dead mom signing

Slameka had his law license suspended 11 months after his May 2014 breaking and entering and larceny convictions, for which he was sentenced to probation. He claimed he broke into his ex-girlfriend’s apartment to retrieve a wallet he’d left there. He told police he didn’t find the wallet, but that he took several items of clothing he’d bought his ex.

In her report, Bullington cited another reason she felt Slameka shouldn’t get his law license restored: “Signing one’s dead mother’s name to checks and then lying about it is not exemplary conduct.”

Slameka’s mother died in 2005, Bullington wrote. “(She) had purchased stocks and placed his name on the stocks to eliminate probate proceeds. (Slameka) claimed he notified the issuing companies of his mother’s death.”

But bank records show that after his mother died, Slameka continued forging her signature onto the dividend checks and depositing them into his account, Bullington said.

When first questioned about the checks, Slameka said he hadn’t posthumously signed his mother’s name. “After being shown checks with both names signed, (Slameka) acknowledged that he had signed his deceased mother’s name to the checks on multiple occasions.”

In her conclusion, Bullington wrote that Slameka hasn’t met the standards to continue practicing law.

(Mike Frisch)

May 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 17, 2018

Lawyers, Guns and Whiskey

A reprimand and probation has been imposed by agreement approved by the Arizona Presiding Disciplinary Judge.

For purposes of the agreement, the parties stipulate Mr. Barnett knowingly became intoxicated and discharged a firearm inside his residence. His knowing conduct violated his duty to the public. There was actual and potential harm to the public. His conduct caused a bullet to strike a neighbor’s window and caused approximately $2,000 in damage. While no one was injured, his conduct created the possibility of serious injury or death. The presumptive sanction is suspension.

Mr. Barnett drank approximately three liters of whiskey. The neighbor heard a loud sound coming from the area of her master bedroom. Upon searching that room, the neighbor found a bullet had penetrated the pane of her bedroom window. When Mr. Barnett eventually surrendered to the police, it was found that he had fired several shots from a handgun within his home.

Mr. Barnett was charged with a Class 6 Dangerous Felony. He entered a plea agreement with the State by which he pled no contest to Unlawful Discharge of a Firearm a Class 6 Non-Dangerous Undesignated Felony. The Court accepted the plea. He was sentenced to two years of probation. The parties agree there are no aggravating factors. The parties stipulate there are multiple mitigating factors and stipulate that these mitigating factors warrant a reprimand.

The mitigating factor of remorse is best exemplified by actions that objectively demonstrate the claimed remorse. Mr. Barnett has established his extreme remorse by his checking himself into an alcohol treatment center and upon completion of that treatment, residing at a sober living facility. It is reported he was a role model and now regularly attends AA meetings. He is compliant with his terms of probation with the Superior Court.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Threats To Client Draw Suspension

The Arizona Supreme Court has affirmed the imposition of a 90-day suspension of an attorney

The State Bar’s Amended Complaint claimed Respondent violated ER 1.6 (Confidentiality of Information, alleging, “Respondent revealed confidential information learned during the representation without the informed consent of the client”), ER 1.9(c)(1)(Duties to Former Clients, alleging, “Respondent used information relating to the representation to the disadvantage of a former client”), and ER 4.4 (Respect for the Rights of Others, alleging, “Respondent used means that have no substantial purpose other than to embarrass, delay, or burden any other person.”).

The record establishes that Respondent agreed to represent a client on a limited-scope basis at a hearing involving temporary custody orders. In addition to the child custody dispute, the client, had several pending legal difficulties including a domestic assault charge, a criminal probation order and a deportation order. Respondent worked with her client and the client’s husband to prepare for the temporary custody order and appeared at the hearing. After the hearing, Respondent made repeated efforts to collect her fees and ultimately obtained a default judgment against the client and her husband (now judgment debtors), which they unsuccessfully attempted to set aside. Respondent promulgated discovery in support of her collection efforts and ultimately determined that the judgment debtors were residing in the Flagstaff area. Respondent advises that after she sent notice of a pending inspection in an attempt to execute on the judgment, the judgment debtors left the state. Respondent had previously warned her client about the need to keep various authorities apprised of a current address in order to avoid violating court orders.

On September 16, 2016, Respondent sent the judgment debtors an e-mail threatening to initiate criminal proceedings under A.R.S. § 13-2205, which provides “A person commits defrauding judgment creditors if such person secretes, assigns, conveys or otherwise disposes of his property with the intent to defraud a judgment creditor or to prevent that property from being subjected to payment of a judgment,” and is a class 6 felony. The e-mail specifically stated, “due to your conduct in completely ignoring your debt to … this law firm …, you are hereby notified that if I do not receive a payment … by September 30, 2016, I will be filing felony criminal charges against you under the attached statute and reporting [client’s] numerous violation[s] of the conditions of her probation to the probation department. ICE and Vegas law enforcement will be notified.”

The Panel found that the e-mail was “more than a threat, it was a promise to use the information she had gained from her representation to damage her client … if she did not receive payments.” Decision at 5. The Panel concluded that Respondent had violated ER 1.6 and ER 4.4. The Panel also found that Respondent testified that she sends such letters “all the time” Id. at 12.

The was no Rule 1.6 violation

The Court agrees with Respondent that a threat to disclose confidential information is not an actual disclosure and therefore is not a violation of ER 1.6.

But as to Rule 4.4

Whether a threat to refer a judgment debtor for criminal prosecution is a threat or “merely some free educational, legal advice” may depend “upon both the intent of the sender and the perception of the recipient.” Arizona Ethics Op. 91-07 (in the context of collecting child support on behalf of a government agency). However, here Respondent not only threatened to file criminal charges for the alleged efforts to secrete assets, she threatened to contact her client’s probation officer and advised that there would be consequences for her client’s immigration proceedings...

Although the subjective purpose of collecting a judgment for fees is not forbidden, threats to jeopardize a judgment debtor’s unrelated immigration and criminal proceedings based on information obtained during the scope of representation are impermissible.


although making an impermissible threat on behalf of a client may warrant a reprimand, making a threat to one’s own client can implicate other ethical rules including ER 1.9(c) (not found here) which prohibits a lawyer who has formerly represented a client in a matter from using information relating to the representation to the disadvantage of the former client and ER 8.4(d) (not charged here) which prohibits engaging on conduct that is prejudicial to the administration of justice...

The Court therefore concludes that a short-term suspension is appropriate based on the charges and findings in this case and affirms the Panel’s decision.

The attorney must serve a probation of two years on reinstatement. (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Texts To Client Show Too Much

A disbarment has been imposed by an Arizona Hearing Panel.

In Count I, Mr. Lieberman on multiple occasions failed to comply with Superior Court Orders. In Count II, after representing his client in a litigated hearing, Mr. Lieberman failed to file a final order in her case, despite being ordered by the Court to do so and was held in contempt. He later filed a proposed order without discussing the matter with his client. In Count III, Mr. Lieberman was hired to provide representation in a family law case and was paid $5,000. He appeared once and then abandoned his client. In Count IV, he was paid $17,000 to assist a client in appealing child custody orders. During the representation, Mr. Lieberman sent his client a text message in which he asked her: “Would you rather have sex and not pay at all?” He made similar statements to his client over the phone and sent at least one text message containing a picture of his genitalia. Mr. Lieberman also failed to respond to the State Bar’s screening letters, phone calls, and emails.

The last charge

Mr. Lieberman represented Laura Cruz in her family law case (SP20060213). Cruz originally hired Mr. Lieberman in 2015 and paid $17,000 to assist her in appealing child custody orders issued by the court in June of 2015. On June 17, 2016, the Court of Appeals granted Cruz’s appeal. [Ex. 23.]

During the representation, Mr. Lieberman sent Cruz a text message in which he asked her: “Would you rather have sex and not pay at all?” Cruz declined.

Mr. Lieberman made similar statements to Cruz over the phone and sent at least one text message containing a picture of his genitalia. Mr. Lieberman also offered Cruz $500 to see her naked. Because of Mr. Lieberman’s behavior, and her financial inability to hire another attorney, Cruz turned over all communication in her case to her mother. [Ex. 23.]

Mr. Lieberman communicated to Cruz’s mother that he had communicated with the court’s judicial assistant about obtaining a hearing in Cruz’s case to address child support. Cruz, however, contacted the judicial assistant independently and learned that Mr. Lieberman had not engaged in any such communication with the court. [Id.]

Mr. Lieberman failed to inform Cruz of his suspension that began August 25, 2017. Mr. Lieberman has refunded none of Cruz’s attorneys’ fees. [Id.]

He defaulted on the bar charges.

The earlier suspension described in the last paragraph is reported here. 

Attorney Scott Lieberman of Tucson was suspended for three years for engaging in a sexual relationship with his client in one case, lying to the State Bar regarding his sexual history with clients in a second case, and failing to adequately represent a client in a third case.

Lieberman was hired in the first case to represent a client in a divorce matter in the spring of 2007. He engaged in a sexual relationship with the client after being retained for representation.

Lieberman was later investigated by the State Bar for inappropriate sexual comments to clients and third parties. During that investigation, Lieberman falsely denied ever having “a sexual relationship with a client.”

In the third matter, he was retained in 2012 to represent a client in a family law case. A parenting time order was entered by the Pima County Superior Court against his client and she requested he challenge it. His client requested a copy of the motion for reconsideration she presumed he filed, but he failed to provide it as he never filed it with the court. The Bar sent him a screening letter regarding this matter, but he failed to respond.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Consent Disbarment After "Horrific Collision"

The Arizona Presiding Disciplinary Judge accepted the consent disbarment of an attorney who is facing charges relating to the death of a motorcyclist.

AZFamily reported on the alleged crime

The Scottsdale Police Department said Wednesday that it has arrested a woman on suspicion of hitting and killing a motorcyclist in August.

Investigators said Tracy Shelden Morehouse had a blood alcohol concentration of 0.355 percent when she hit Greg Dolphin, who was stopped at the red light on southbound Scottsdale Road at Princess Drive. They also said Morehouse, 46, hit speeds of 100 mph shortly before what police described as a “horrific collision” on Aug. 13.

[RELATED: Police ID motorcycle rider killed in Scottsdale crash over the weekend]

“Through investigation, it was learned Morehouse reached speeds of over 100 miles per hour, and that she was traveling in excess of 84 miles per hour at the point of impact with Dolphin,” Kevin Watts of the Scottsdale Police Department wrote in a news alert about the arrest.

Police said before she hit Dolphin with her 2014 red Tesla, Morehouse was seen driving south in the northbound lanes of Scottsdale Road. Investigators said she hit a Toyota 4 Runner at Chauncey Lane. That's less than half a mile from Princess Drive.

“Morehouse failed to stop and remain on scene of that non-injury collision, and instead fled south on Scottsdale Road at a high rate of speed,” Watts explained.

She kept going, according to police, until she hit Dolphin. The 45-year-old was pronounced dead at the scene.

[ORIGINAL STORY: Motorcycle rider killed in crash in Scottsdale]

Watts said Morehouse was arrested Tuesday night and booked on suspicion of second-degree murder.

Her BAC of 0.355 percent is more than four times Arizona's legal definition of intoxicated, which is 0.08 percent. That number puts Morehouse squarely in the super extreme DUI category defined by Arizona law (ARS 28-1382)

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sex And Neglect Draw Disbarment

The New York Appellate Division for the Third Judicial Department has disbarred a de-robed former judge

Respondent was admitted to practice by this Court in 1986 and maintained an office in the City of Albany, Albany County. He previously served as Town of Colonie Justice from 2002 until 2005, when he resigned while under investigation by the Commission on Judicial Conduct (see Matter of DiStefano, 2005 WL 5727950 [NY Commn Jud Conduct, Nov. 16, 2005]).

Following a May 2013 complaint, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) commenced an investigation concerning allegations of professional misconduct related to respondent's neglect of a client's matrimonial matter and his engagement in a sexual relationship with that domestic relations client (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.3, 1.4, 1.8 [j]). By order entered October 12, 2017, this Court suspended respondent from the practice of law due to his failure to cooperate with that investigation and his failure to fully comply with a subpoena duces tecum issued by this Court directing him to, among other things, produce records relevant to AGC's investigation and to give testimony under oath (154 AD3d 1055 [2017]). Said suspension remains in effect

Six months passed without response and thus disbarment.

Polite question: How does one both neglect and have sex with the client? Misplaced priorities? (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

One Year For Unsportsmanlike Conduct

The Wisconsin Supreme Court suspended  an attorney with no prior discipline for one year

On June 24, 2016, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Bauer alleging 28 counts of misconduct. The complaint alleged that between December 2013 and October 2014, Attorney Bauer misused seven clients' trust funds and mismanaged his trust account. On numerous occasions he transferred client funds from one account to another without permission of the clients, failed to make  No. 2016AP1259-D notations of the transfers, transferred trust account funds to fill gaps created in other client accounts to avoid detection, transferred trust funds to his office account and to the account of his subsidiary business, Sports Advisors, Inc., and borrowed money to reestablish correct account balances. It is undisputed that all of the clients received all monies due them. It is also undisputed that none of the clients consented to the use of their money to fund disbursements that benefitted others. 


Attorney Bauer made numerous improper transfers of multiple clients' funds between his firm's trust account, the firm's business account, and accounts belonging to Attorney Bauer's side business, Sports Advisors, Inc. These labyrinthine transfers support the referee's comments that Attorney Bauer saw his trust account "as something akin to a slush fund" and that the transfers "seemed to constantly be in the process of 'robbing Peter to pay Paul' and, in some cases, to pay Michael Bauer." The transfers continued for nearly one year. Attorney Bauer was an experienced attorney who should have known that the transfers were improper. We agree with the referee that Attorney Bauer's repeated acts of dishonesty, fraud, deceit and misrepresentation in converting $376,000 in client funds, along with his failure to comply with multiple supreme court rules regarding trust account management, warrant a one-year suspension. As is our usual custom, we also find it appropriate to assess the full costs of the proceeding against Attorney Bauer.

There are places where this kind of misconduct draws a much more severe sanction. (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Payment Snafu

Dan Trevas previews two bar discipline cases up for oral argument before the Ohio Supreme Court

A former Mahoning County auditor is facing indefinite suspension from the practice of law for conduct related to the “Oakhill” influence-peddling scandal, which led to the criminal conviction of prominent public officials. In Mahoning Count Bar Association v. Sciortino, the parties stipulated that former auditor Michael V. Sciortino committed four violations of the rules barring lawyers from committing illegal acts and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Sciortino has been serving an interim suspension since his April 2016 plea agreement. Sciortino objects to one of the conditions he would have to meet to be reinstated to the practice of law.

In Disciplinary Counsel v. Owens, the Ohio Board of Professional Conduct recommends a six-month suspension for a Delaware County attorney. His client had been jailed for not paying nearly $60,000 in spousal support, and the attorney used funds belonging to other clients to obtain this client’s release from jail. The attorney denies any wrongdoing, stating that the funds were expected imminently from the man’s new wife, that he explained the circumstances to the agency that handled the support payments, and that other issues were “payment snafus.” He asks either that the case be dismissed or that he receive the lesser sanction of a public reprimand.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 16, 2018

Tennessee Liberal Gets Reprimanded

A Tennessee General Sessions Court Judge has been reprimanded for dismissing a DUI to "do a veteran a favor," dismissing a courtroom full of cases en masse without hearing evidence to clear the overcrowded room and stopping by the roadside to interfere with a seatbelt violation citation (which he later dismissed ex parte) reported 

General Sessions Judge Mike Hinson doesn't deny he has a liberal dismissal police when it comes to THP-issued citations.

In a recent interview, the judge said, "So we are being over-enforced. The THP come into a city to get their numbers."

Last May, a trooper pulled over a motorcycle rider who was allegedly going 78 in a 55 mph zone. The motorcyclist was ultimately arrested and charged with DUI.

According to the TBI, the man's blood alcohol was .122, which is well above the legal limit of .008.

But when the DUI suspect came before Judge Hinson, the case was dismissed.

By phone, Hinson, who refused to go on-camera regarding the dismissed DUI case, told News 2 he was simply trying to do a veteran a favor.

In a statement, he said, "To my knowledge, the blood alcohol levels you are citing were not available to me on the September court date."

According to the TBI, the results were available several months before and the official alcohol report was completed by the end of June 2017.

News 2 spoke to District Attorney Kim Helper, who said she could not comment on whether the citation was independently submitted to the grand jury.

She added her office was not involved in the original decision to dismiss it.

According to court documents, last year troopers wrote nearly 2,000 citations in Lewis County.

"They come over, as the troopers say, 'It's like writing fish in a barrel,'" Hinson said.

Of the nearly 2,000 citations given, Judge Hinson dismissed half of them.

Lt. Bill Miller told News 2 Hinson's liberal dismissal policy of THP tickets sends motorists the wrong message.

"It is clear that self-interest was placed ahead of the community interest and by doing that placed the community at risk," Miller said. "When you dismiss a .122 DUI, it clearly undermines what the THP is trying to do and that is to increase public safety."

Judge Hinson admitted he has dismissed an entire courtroom full of citations only once before and he said he did that for courtroom security when 12 troopers wrote so many citations that 300 people showed up for a court capable of holding 117 people.

The judge also told News 2, "Last week's story was not about me, nor individual state troopers - it was about a THP policy which I feel is discriminatory, wasteful and results in over-enforcement of small cities and rural counties."

Hinson continued, "The THP disagrees. I call upon the General Assembly to investigate this police and determine who is correct. If the THP is not going to over-enforce in downtown Franklin, then they shouldn't over-enforce in Hohenwald, Linden or any other small or rural area."

(Mike Frisch)

May 16, 2018 in Judicial Ethics and the Courts | Permalink | Comments (2)

Back On Par

The Oklahoma Supreme Court has reinstated an attorney suspended for misconduct in these circumstances

William Martin McLaughlin graduated from Oklahoma City University School of Law in May of 1988. Following successful completion of the bar examination, he was admitted to the Oklahoma Bar Association (hereinafter "OBA") on October 5, 1988. For the first seven years in practice, McLaughlin resided in Stillwater and worked as an assistant district attorney for Logan and Payne Counties. McLaughlin left the district attorney's office in 1995, to begin a private practice.

In September 1997, McLaughlin was involved in an automobile accident which severely injured his left arm. Prior to the accident, McLaughlin had been a "scratch" golfer, but the extensive injury ended his ability to play competitive golf. Consumed with physical pain and depression, McLaughlin began self-medicating with alcohol. As his use of alcohol escalated, McLaughlin accumulated multiple criminal charges. During the hearing before the Professional Responsibility Tribunal (hereinafter "PRT"), McLaughlin testified that he had been charged in sixteen separate criminal cases, all of which were connected to his abuse of alcohol. The vast majority of these criminal charges were for driving under the influence or public intoxication.

The court suspended him on incapacity grounds in 2007. 

After suspension he sought help and the court credited his efforts

 Our primary focus in cases involving incapacity stemming from drug or alcohol abuse is the extent of rehabilitation from the incapacity, the conduct subsequent to the suspension and treatment received for the condition, and the time which has elapsed since the suspension. Id. It is essential that the record demonstrate the applicant has, for a significant amount of time, maintained sobriety and refrained from abusing drugs or alcohol; passed random drug and alcohol tests; immersed himself/herself in a 12-step program; sought necessary counseling; and participated in Lawyers Helping Lawyers. Id. ¶ 15, 163 P.3d at 534. Only after an applicant has diligently pursued and maintained his or her sobriety, and has met the other requirements associated with reinstatement, may a petition seeking reinstatement be granted. Id.

 Following his Rule 10 suspension, McLaughlin began efforts to achieve sobriety. While he abstained from alcohol for roughly two years, McLaughlin did not initially attend Alcoholics Anonymous, nor did he implement any other 12-step program. As a result of this omission, McLaughlin continuously relapsed. It wasn't until July 18, 2011, that McLaughlin was finally able to stop drinking alcohol. Following his last drink, McLaughlin began working the 12-steps of AA, and has been able to maintain his sobriety for more than six years.

McLaughlin accumulated multiple criminal charges between 2004 and 2011. Each of the criminal matters formed sufficient basis for disciplinary action by this Court; however, our prior order dismissing the Rule 7 case precludes imposition of discipline. Nevertheless, we have considered these criminal acts for purposes of determining whether reinstatement is justified. There can be no doubt that McLaughlin's actions were reprehensible and reflected negatively on the legal profession. Each time McLaughlin sat behind the wheel of his car while under the influence, he put lives of innocent Oklahoma citizens in jeopardy. Additionally, McLaughlin, while intoxicated, sought sexual favors from a prospective client. The totality of these criminal acts would have certainly warranted disbarment. All of these transgressions, however, were directly attributable to McLaughlin's alcoholism.

Based on the evidence presented at the PRT hearing, the record conclusively establishes dramatic positive changes in McLaughlin's life that were brought about through sobriety. Collectively the record before us demonstrates McLaughlin's present moral character to practice law. While testifying before the PRT, McLaughlin acknowledged the disrepute his behavior brought on the legal profession, and he expressed remorse for his unprofessional conduct. McLaughlin's rehabilitation has been extensive, allowing him to maintain sobriety over a period of more than six years. He has been active in both AA and OBA's Lawyers Helping Lawyers program. Numerous witnesses testified that over the past six years McLaughlin has mentally and physically rehabilitated himself.

For example, McLaughlin's Alcoholics Anonymous sponsor testified that he would hire McLaughlin as his lawyer if he was ever in trouble and McLaughlin had his license back. McLaughlin's senior case manager at the Pershing Center testified, "[McLaughlin] is a man of character," and she would absolutely recommend McLaughlin for reinstatement. Furthermore, McLaughlin's ex-wife testified the she believes he will not relapse again because he treats his sobriety "like oxygen and food, [and] that [it] is the most important thing, because [McLaughlin] has told [her] many times if he doesn't maintain his sobriety, then he will lose everything."

The evidence also demonstrates McLaughlin refrained from engaging in the unauthorized practice of law during his suspension. In 2011, McLaughlin began working as a legal assistant for attorney Clyde Anderson. Aware of his suspension, Anderson conditioned the employment arrangement on an agreement which imposed specific restrictions, including: (1) McLaughlin was prohibited from directly or indirectly dealing with clients; (2) McLaughlin was not allowed to participate in any legal proceeding (including appearing in court, depositions or mediation, etc.) or from transacting any client matter with a third party; (3) McLaughlin could not give clients legal advice in any manner; and (4) McLaughlin was prohibited from handling client funds. Additionally, McLaughlin's work space was situated so as to minimize his contact with incoming clients.

(Mike Frisch)

May 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Worship Of Mindless Proceduralism

If everything that is wrong with the District of Columbia Board on Professional Responsibility could be distilled to its essence in 10 pages, it would bear a striking resemblance to a report filed the other day in the case of In re Leslie Thompson. 

Setting the stage

On December 21, 2017, the Court granted the Board’s petition to temporarily suspend Respondent, pursuant to D.C. Bar R. XI, § 3(c), for his failure to respond to a Board order in a different disciplinary investigation (Disciplinary Docket No. 2017-D186). Rule XI, § 3(c) provides that the Court may suspend a respondent who has failed to respond to an order of the Board in a matter where Disciplinary Counsel’s investigation involves allegations of “serious misconduct,” which includes “fraud, dishonesty, misappropriation, commingling, overdraft of trust accounts, criminal conduct other than criminal contempt, or instances of neglect that establish a pattern of misconduct.” At the time of this Report, Respondent has not sought reinstatement to the Bar.

At issue in this case in which the attorney failed to appear to contest charges of failure to cooperate in a bar investigation is a typo in the bar charges.

Disciplinary Counsel charged the non-cooperation violated Rule 8.1(a) rather than (b) but clearly by its charging language alleged the (b) (failure to respond to bar complaint) violation.

Heaven forbid to those who exhalt form over substance

The Committee determined that Disciplinary Counsel could not proceed on its allegations that Respondent had “knowingly fail[ed] to respond reasonably to a lawful demand for information,” because it did not clearly charge a violation of Rule 8.1(b) and did not follow the mandated procedures to amend the Specification of Charges.

The "governing" board rule

Board Rule 7.21 provides that:

No amendment or any petition or of any answer may be made except on leave granted by the appropriate Hearing Committee Chair. Whenever, in the course of a formal hearing, evidence shall be presented upon which another charge or charges against respondent might be made, it shall not be necessary to prepare or serve an additional petition with respect thereto, but upon motion by respondent or by Disciplinary Counsel, the Hearing Committee Chair may continue the hearing. After providing respondent reasonable notice and an opportunity to answer, the Hearing Committee may proceed to the consideration of such additional charge or charges as if they had been made and served at the time of service of the original petition.

The procedures dreamed up by the board invariably are nothing but obstacles to the efficient prosecution of charges.

And, as per usual, more process than is accorded to a criminal defendant. 

A former board chair agrees

"You get more due process in the disciplinary system than a first-degree murder defendant," said Mark Foster, a former chairman of the Board on Professional Responsibility, which is appointed by the D.C. Court of Appeals. "The system is created by lawyers for lawyers."

A 1993 decision of the Connecticut Supreme Court gets it right

In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood. 

The Thompson case shows how the D.C. board deals with a typographical error where the allegations are crystal clear and the lawyer - who is charged with failure to cooperate as required by the rule  - does not deign to contest the charges.

If you wonder why cases in many jurisdictions can take as little as a year to proceed from charges to final court action (see Kansas, for example) and it takes ten years or more with some regularity in the District of Columbia, the mindset that produces a unanimous report like this is a more than likely suspect. 

And many jurisdictions actually care whether or not a lawyer responds to a bar complaint. Many if not most (e.g. New York, Nebraska. Maryland) have default rules with teeth - if you don't respond, you admit the charges (typos and all). 

In New York, a non-responding lawyer is immediately suspended and disbarred if no response is forthcoming within six months.

By contrast, in the District of Columbia, the board as an institution has long worshipped at the alter of mindless proceduralism to the detriment of any concept of the need for public protection. 

And the fact that there are hearing committee reports that are years overdue? 

No problem at all. 

The players change, the mindset never does.

The report can be found here. (Mike Frisch)

May 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 15, 2018

No Complaints Please

The Illinois Review Board proposes a 90-day suspension of an attorney on these charges

The Administrator brought a one-count complaint against Respondent, charging her with improperly entering into an agreement with a client that limited or purported to limit the client's right to file or pursue a complaint before the ARDC, and with filing a response to her client's motion to dismiss counsel in which she revealed information relating to her representation of the client without the client's informed consent, in violation of 2010 Illinois Rules of Professional 8.4(h) and 1.6(a), respectively.

The Hearing Board found that Respondent had engaged in the charged misconduct and recommended that, for her misconduct, Respondent be suspended for 30 days, with the suspension stayed in its entirety by a 60-day period of probation, the only condition of which was for Respondent to complete the ARDC Professionalism seminar.


Respondent was licensed to practice law in Illinois in 1993. She also is licensed to practice in Missouri. She is a solo practitioner. At the time of her disciplinary hearing, she had one active case. She also works as a substitute teacher. She has no prior misconduct.

In May 2015, Respondent began representing John Quincy Adams IV in some criminal and traffic matters. She and Adams entered into a retainer agreement, which she prepared and presented to him and which provided, in part:

Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency, including but not limited to the Missouri Bar, ARDC etc.

(Hearing Bd. Report at 4 (citing Admin. Ex. 1).)

Respondent represented Adams until March 2016. On March 2, Adams filed with the court a handwritten motion stating that he would like to fire Respondent and hire different counsel. That same night, Respondent and Adams had a phone conversation. Respondent testified that he told her he had made up his mind to fire her, that he was going to get her in trouble, and that he had filed a complaint against her. He did not tell her that he had already filed a motion to dismiss her as his counsel.

Following their phone conversation, Respondent drafted a letter to Adams in which she referred to his "horrible criminal past" and a "violent criminal past;" stated that he has been "arrested and/or convicted in Missouri at least fourteen times;" stated that he "wanted to bribe the court in some manner;" and called him a "paranoid ingrate and miserable con man who tries to blame everyone else but yourself for YOUR misdeeds TO WHICH YOU CONFESSED." (Hearing Bd. Report at 11 (emphasis in original).)

A hearing on Adam's motion was set for March 10, and notice of the hearing was sent to Respondent on March 3. On March 9, Respondent filed an answer to Adam's motion with the Circuit Court of Monroe County, and attached the above-quoted letter to her answer. It thus became a matter of public record.

Respondent testified at her hearing that she was "in a blur" and "upset" when she wrote the letter because of Adams' rant during their conversation. She further testified that she included the letter with her filed answer out of "just frustration," because she was "enraged" and in a "rage of emotion," and "reacted on ? [her] own personal hurt." She acknowledged that the letter contained confidential information that she should not have disclosed without her client's consent; that the filing of the letter was "wrong;" and that she "was not justified" in filing it. (Hearing Bd. Report at 17.)


Respondent's misconduct falls toward the middle of the spectrum of misconduct involved in the foregoing cases. Her unauthorized disclosure of confidential information to the court and, effectively, to the public was more egregious than O'Connor's, in that Respondent's disclosure was intentional rather than careless, and involved a criminal matter, which could have had serious repercussions for her client. The nature of her misconduct - disclosing information relating to her client's criminal case - is on par with Peshek's and Garza's misconduct - although those respondents disclosed information relating to multiple criminal clients. And, while Gilsdorf's misconduct involved only one criminal client, like Respondent's, the scope and impact of Gilsdorf's unauthorized disclosure of information about his client's case were vastly greater than Respondent's. Gilsdorf essentially released into the world via the internet a video of his client committing a crime, thereby impacting his client's criminal proceeding and causing actual harm to his client.

On balance, we find this matter most analogous to Garza, although, in that matter, the Hearing Board found, in aggravation, that Garza did not acknowledge, showed no remorse for, and did not accept responsibility for her misconduct, but rather rationalized her misconduct and blamed others for it. The Administrator asks us to make a similar finding of aggravation here. We cannot do so, however, because the Administrator has not given us a basis for overturning the Hearing Board's factual findings regarding Respondent's credibility and demeanor.

But, while we accept and affirm the Hearing Board's finding that Respondent had accepted responsibility and expressed remorse for her actions as of the time of her hearing, we believe that finding is tempered by Respondent's arguments in her appellee's brief, in which she disparaged her client and at least partly blamed him for her disciplinary troubles. Consequently, we cannot find that Respondent has accepted full responsibility or expressed unconditional remorse for her misconduct, which diminishes the weight of those factors in mitigation.

In addition, we find that Respondent's derogatory, vitriolic, and potentially inculpatory statements about her client contained in the letter that she filed with the court could have impacted her client's criminal matter and caused him significant harm. That risk of harm should not be minimized.

We conclude that a suspension of 90 days is commensurate with Respondent's misconduct, is consistent with discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct. We also believe that Respondent would benefit from a review of her ethical obligations to her clients, and therefore recommend that she take the ARDC Professionalism seminar.

(Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Rehab Plan: Play More Golf

The New Jersey Supreme Court reprimanded an attorney who violated the conditions of an agreement in lieu of discipline.

The Disciplinary Review Board made findings concerning the matter

In May 2013, respondent entered into an agreement in lieu of discipline (ALD). Because he failed to comply with its requirements, the DEC filed an ethics complaint against him.

On June 17, 2015, prior to the ethics hearing, the DEC issued a case management order, which provided that, if respondent sought to challenge the admissibility of the ALD and/or the admissions contained therein, he was required to file a brief on or before July 10, 2015, failing which he would be deemed to have waived any objection to its admission into evidence and any admissions contained therein. Respondent neither filed a brief nor objected to the admission of the ALD at the DEC hearing, but stated that he was there to put on a case and "to win friends and influence people."

The complaint involved alleged mishandling of a matrimonial case

At the DEC hearing, respondent thanked the panel for the opportunity to be present and "you know, just win friends and influence people. One day I’ll be on top of that panel." He later reiterated that if the ethics matter "goes nowhere, in about ten years, I will be on a panel similar to this."

Respondent asserted that, regardless of the panel’s ultimate decision, he had already changed his business practice. He was a "different attorney" from the one he was before. He was thought of "more of a business-minded attorney," and his clients were "much happier." He has changed his business practices, "which teaches me to think more like a business professional and have a successful family life . . . I’ve rehabbed myself."

Respondent regretted not following through with the conditions, presumably of the ALD. He claimed that he had written a letter of apology to the judge, but never submitted it because he wanted to deliver it in person...

As to the changes to his law practice, respondent remarked that new attorneys do not have funds for hiring staff. Thus, he starting reading books, one of which changed his life, Four Hour Work Week, which deals with outsourcing work. According to respondent, none of his paralegals are even in the State of New Jersey. "They’re spread out through the United States and I’m even exploring paralegals in India who can do legal work for me for pennies on the dollar." Respondent named several websites that could be used to post ads to hire paralegals for project based jobs to avoid paying someone a salary or benefits to sit in the office. He stated that the concept "works great" for him.

Respondent maintained that he tried to hire the best and smartest paralegals "who are ten times smarter than me who never got a chance to go to law school for whatever reason," and employs a paralegal who is licensed in another state but does not have a New Jersey license. According to respondent, she is 100 times smarter than him. He reviews her work and focuses "on going to conferences, building relationships and playing golf, because that brings in the business and I can have my paralegals do the work while I supervise them." His paralegals, however, do not dispense legal advice. This is like senior partner thinking because "they’re out playing golf and building relationship[s], which ultimately brings in the business."

The DRB found the charged violations and reprimanded the attorney

we have some reservations regarding respondent’s cognizance of his duties and obligations as an attorney. Thus, we further determine to impose the following conditions on respondent’s practice: (i) that respondent practice under the supervision of an OAE-approved proctor, until the OAE deems it is no longer necessary; (2) that he complete a Continuing Legal Education (CLE) course in law office management; and (3) that he complete two additional ethics courses, in addition to those required for CLE credit. Respondent is to provide proof to the OAE of completion of the courses within one year from the date of the Court’s Order.

(Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Swift Action And Its Opposite

The Ohio Supreme Court has imposed an interim suspension of an attorney with a Washington, D.C.  address for a Virginia felony conviction.

On certified entry of felony conviction. Christopher Paul Mitchell, Attorney Registration No. 0077327, last known address in Washington, District of Columbia, suspended from the practice of law for an interim period.

On May 1, 2018, the attorney was convicted of a felony leaving the scene of an accident causing personal injury or death in the City of Fredricksburg Circuit Court . He received a suspended sentence of three years and 60 days.

Notably, a District of Columbia attorney was convicted of the exact same offense (Virginia Code section 46.2 - 894) in 2005 and has yet to serve a single day of suspension for a felony hit and run conviction.

We reported on the lawyer-absolving report and recommendation of the Board on Professional Responsibility in August 2015

The report of the District of Columbia Board of Professional Responsibility in the case of Wayne Rohde, Board Docket No. D347-05, has been filed.

You may remember the case - it involves an attorney who drove from the District of Columbia to Virginia after a night of heavy drinking. He struck and seriously injured another motorist, fled the scene but left his car bumper with license plate affixed behind.

He pled guilty and was sentenced in 2005 to felony criminal charges in Virginia.

The D.C. disciplinary system began its processes that same year.

It took seven years for the hearing committee to file a report on the ethics charges. On the plus side, the Board acted faster but to no better result.

Oral argument before the Court of Appeals took place in the Rohde case in October 2016. No decision has yet been forthcoming. 

An attorney convicted of felony hit-and-run in Virginia was suspended in Ohio within two weeks of his conviction.

In the District of Columbia, no sanction has been imposed in the thirteen years since the precise same felony conviction.  (Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

An Inexact Science

The dismissal of a legal malpractice claim has been affirmed by the North Carolina Court of Appeals

Carol D. Moore (“plaintiff”) appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s claim for legal malpractice. After careful review, we conclude that plaintiff failed to forecast any evidence to prove that, but for defendants’ alleged negligence, plaintiff would have received a more favorable judgment in her prior equitable distribution action. Accordingly, we affirm the trial court’s order.

At issue was the end of a 25-year marriage

Plaintiff hired defendants due to their experience tracing marital assets in complex equitable distribution proceedings. Defendants were aware that plaintiff believed that Dr. Moore had hidden assets in anticipation of the parties’ divorce. In addition to defendants, plaintiff also retained certified public accountant Heather Linton and certified fraud examiner Carl Allen (“Allen”) to help locate the alleged missing assets.

During discovery, defendants conducted depositions; subpoenaed financial institutions; and reviewed tax returns and other documents for evidence of undisclosed earnings or accounts, including potential off-shore transactions. However, neither defendants nor plaintiff’s experts ever located any undisclosed assets. Jordan ultimately concluded that the Moores’ once-substantial marital estate had been depleted as a result of market factors and the parties’ extravagant lifestyle choices. Although Allen had “theories” that Dr. Moore might have mismanaged marital funds, Jordan determined that the evidence was speculative, unsubstantiated, and likely inadmissible. Therefore, when the trial commenced on 3 January 2011, Jordan notified Allen that he would not call him to testify. At trial, defendants did not present any expert witness evidence to support plaintiff’s theory that Dr. Moore hid marital assets prior to the parties’ divorce.

The plaintiff did not appeal the distribution of marital assets by the trial court; rather, she sued her lawyer

“The law is not an exact science but is, rather, a profession which involves the exercise of individual judgment.” Id. Contrary to plaintiff’s arguments, Jordan’s failure to present evidence that he, in his professional judgment, deemed “speculative” and “unsupported” is consistent both with the exercise of due care in representing plaintiff’s action, and with his duty of candor to the court.

Plaintiff failed to forecast sufficient evidence for the trial court to consider regarding any alleged marital asset. Without such evidence, the trial court could not determine whether plaintiff might have obtained a judgment in excess of the one that she actually received at equitable distribution. Furthermore, contrary to plaintiff’s arguments, there is no evidence that defendants failed to exercise due care and diligence in representing plaintiff’s action. Since plaintiff failed to establish that any alleged negligence on the part of defendants proximately caused damage to her, we affirm the trial court’s order granting defendants’ motion for summary judgment.

(Mike Frisch)

May 15, 2018 in Clients | Permalink | Comments (0)

Sunday, May 13, 2018

A UFO Is A Big Deal

An attorney who practiced after an administrative suspension should be suspended for six months and until further order ("UFO"), according to a recommendation of the Illinois Review Board.

The suspension

Respondent did not timely register or pay his registration fee to the ARDC for the year beginning on January 1, 2015. After receiving two notices about his failure to register, Respondent was removed from the Master Roll on March 10, 2015. He eventually registered and paid the fees that were due and was restored to the Master Roll on November 17, 2015.

Between March 10 and November 17, however, Respondent represented clients in three matters. Each matter forms the basis of a count in the complaint, and is described fully in the Hearing Board's report. There are no issues raised regarding the Hearing Board's factual findings that Respondent represented three clients between March 10 and November 17, 2015.

Respondent also was removed from the Master Roll in each of the years from 2003 to 2007, 2010, and 2011 for failure to register and/or failure to comply with his MCLE requirements. After receiving notice of those removals, Respondent registered, paid any fees and penalties that were due, and was restored to active status.

Respondent requested and received waivers of his 2016 and 2017 registration fees because of his demonstrated low income.

The attorney had a prior misconduct suspension 2011, Respondent was suspended, on consent, for two years and until further order, with all but the first five months stayed by probation, for converting escrow funds, failing to hold the funds separate from his own property, neglect, failing to communicate, and charging an unreasonable fee. It found that, while his prior misconduct was different from his present misconduct, the prior disciplinary matter should have given Respondent an increased awareness of all of his professional obligations.

Sanction here

The Hearing Board based its UFO recommendation on the fact that Respondent did not fully participate in his disciplinary proceedings. We agree that Respondent's inadequate but partial participation in his disciplinary proceedings is not acceptable and raises some concern about his ability to adhere to his professional obligations. But the most significant factor bearing upon our recommendation of a suspension until further order is that Respondent has utterly failed to recognize or acknowledge that he engaged in misconduct, or to express remorse for his actions.

Moreover, Respondent's arguments in his appellate briefs and during oral argument convince us that he does not understand or accept his ethical obligation to timely register with the ARDC as a precursor to practicing law, which necessitates a suspension until further order. See In re Kesinger, 2014PR00083 and 2015PR00042 (Review Bd., Nov. 29, 2016), at 17, approved and confirmed, M.R. 28530 (March 20, 2017) (imposing suspension until further order where "Respondent's arguments on appeal show that he still does not recognize or understand the nature and seriousness of his misconduct and has no remorse for it"). We are particularly disturbed that, when Respondent was asked at oral argument if he has learned from this disciplinary proceeding, he responded: "Yes - that, according to these two cases, it's no big deal to not pay your attorney fees and continue practicing law." But it is indeed a "big deal," because it is required by the rules of the Illinois Supreme Court and the ARDC.

Accordingly, we do not believe that Respondent, at this time, is able or willing to conform his behavior to the Rules of Professional Conduct. For this reason, we believe his suspension should continue until further order, so that he is required to demonstrate his fitness before he returns to the practice of law. See In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986) ("lack of any evidence that [respondent] is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court").

(Mike Frisch)

May 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 11, 2018

Sanction Reduced For "Overzealous" Rosa Parks Estate Attorney

An attorney for the Rosa Parks estate who made incendiary allegations against a judge and filed a suit to force disqualification had his sanction reduced from a 180 day suspension to a reprimand by the Michigan Attorney Discipline Board.

The hearing panel determined that respondent's actions in filing the pleadings in question, and using the "incendiary" language that he did, warranted a suspension of sufficient length to require reinstatement proceedings under MeR 9.123(B). However, we view respondent's actions differently.

Respondent's vociferous representation of his clients and dedication to their cause is evident and was evident during respondent's presentation to this Board at oral argument. But what is also evident to us is that respondent's actions in filing the subject pleadings, resulted from overzealous advocacy, rather than a selfish or dishonest motive, an aggravating factor the Administrator's counsel argued applied, but the panel specifically found inapplicable. For those reasons, and given the fact that respondent has no prior disciplinary history in twenty-four years of practice, we find that the level of discipline imposed should be decreased to a reprimand.

The Detroit News covered the bar case.

CBS Detroit reported on the underlying case in 2012

Civil rights hero Rosa Parks’ personal papers, photographs and other mementoes are locked in a court battle with no end in sight.

The attorney battling on behalf of the institute Parks founded before her 2005 death sued the judge on the case this week — and the attorneys the judge appointed as trustees — saying they’re corrupt. Attorney Steven Cohen claims the judge and attorneys are intentionally draining the estate of all its cash through legal fees to force the sale of Parks’ potentially valuable personal effects to pay the debt they created.

“Right now the estate’s a mess,” Cohen said on the Charlie Langton Talk Radio 1270 morning show.

At the heart of the issue are Parks’ heirs — nieces and nephews — who want her personal effects sold and the money invested back in the estate, and to paying off debts including legal fees. On the other side is the charitable institute Parks founded.

The institute’s leader Eileen Steel, appointed by Parks, wants the effects to go to the institute, which is dedicated to civil rights education.

“These artifacts have been locked up in NYC for about five or six years now, and the institute and the family have absolutely no control over it and the judge has the control, which he should not have,” Cohen said. “This matter should not be under the control of (Wayne Probate Court Judge Freddie Burton.) He should be removed from the case, frankly, he should be removed from the bench for his corrupt actions.”

After Cohen filed suit against the judge overseeing the case — forcing the judge to tackle a case against himself in his own courtroom — the judge issued an order of harassment against Cohen. Burton claimed Cohen was creating “unfounded, illegal pleadings.”

“I took the rare step of suing a judge in his own courtroom because he simply would not give up his corrupt ways,” Cohen said.

Farmington Hills attorney Larry Pepper, who represents Parks’ nieces and nephews but is not involved in Cohen’s actions against the judge and trustees, said his clients just want to move forward.

“Their overriding concern, although some people don’t believe this, but it’s true, their concern is the legacy of Rosa Parks and they are very fearful that legacy is going to be tarnished, either through disreputable use of her name or image,” Pepper said.

Through an agreement reached between the institute and Parks’ heirs in 2007, the nieces and nephews have the right to 20 percent of the proceeds from anything earned by or sold through her estate.

Pepper said he trusts the two attorneys appointed by the judge, John Chase Jr. and Melvin Jefferson Jr., to oversee Parks’ artifacts.

“I’ve known both of these gentlemen for close to the 37 years, I would trust them with my personal matters,” Pepper said. “I have nothing but positive things to say about both of them … It really is infuriating that Cohen would make these charges.”

He adds that Parks’ things need to be sold: “It’s my position that the estate needs funds … These things should be sold and the proceeds divided,” Pepper said.

The artifacts are housed right now at Guernsey’s auction house in New York.

But Cohen believes the artifacts should just be sent to the Rosa Parks Institute. Some estimates say the memorabilia could be worth $8 million.

“No one knows how much it’s worth … But there are valuable papers and photographs and artifacts and all of those things were given by Mrs. Parks to her institute long before she died,” Cohen said. “The institute used these artifacts in its civil rights work and educational mission.”

Parks had perhaps $100,000 when she died, Cohen said. After she died, proceeds came in from a lawsuit against Outkast, which brought it another $200,000. “All told her estate had about $390,000,” Cohen said, adding, “She gave all of that to her charitable institute … She wanted her institute to carry on her work.”

The problem? “Most of the liquid assets, or all of the liquid assets, of the estate are gone, they’ve gone in attorney
fees to Chase and Jefferson, and the artifacts are still controlled by Chase and Jefferson and Burton … They do retain possession and control of the artifacts,” Cohen said.

He added: “This is something that happens all the time in Wayne County Probate Court, basically the system tends to rape and pillage the estates of deceased persons for their own selfish uses and the families and beneficiaries end up with a very small amount of what was intended for them. It happens all the time.”


May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Shirvell Disbarment Affirmed

A recent decision of the Michigan Attorney Discipline Board affirms the disbarment of Andrew Shirvell

Disbarment is well within the realm of discipline that could have been imposed by the hearing panel. The panel's conclusions are supported by the record and by an appropriate application of the American Bar Association Standards for Imposing Lawyer Sanctions. Respondent filed a completely unfounded and frivolous lawsuit, without any consideration for the harm and expense it would cause the defendant or the waste of the court's resources. Likewise, respondent publicly made unfounded, offensive, defamatory statements about Armstrong with absolutely no consideration for the harm it would cause. In doing so, respondent demonstrated an egregious failure of professional judgment and character. Such conduct demands discipline for the protection of the public. Therefore, the hearing panel's order of disbarment is affirmed.

The board cites the history of the misconduct set forth in an opinion of the United States Court of Appeals for the Sixth Circuit.

The Grievance Administrator filed a Formal Complaint alleging in three separate Counts that respondent committed professional misconduct. Specifically, Count One alleged respondent harassed and stalked Armstrong; Count Two alleged respondent engaged in frivolous litigation; and Count Three alleged a conflict of interest based upon respondent's employment as an Assistant Attorney General. The hearing panel determined that petitioner had established the misconduct charged in Counts One and Two,  but found that the Grievance Administrator failed to prove respondent violated MRPC 1.7(b)(2) [conflict of interest], as alleged in Count Three.

Shirvell appealed the panel order

Respondent petitioned the Attorney Discipline Board for review of the hearing panel's order, raising six issues, arguing that: (1) the disciplinary proceedings were fatally compromised where all three panel members failed to disclose alleged biases against respondent; (2) respondent was not given fair notice that his questioning of Deborah Gordon during her deposition would subject him to a finding of misconduct; (3) the hearing panel abused its discretion by admitting into evidence the Sixth Circuit Court of Appeals' opinion in Armstrong v Shirvell, supra; (4) the hearing panel abused its discretion in failing to admit three of respondent's exhibits; (5) the panel's findings of misconduct are not supported by the record; and (6) the discipline imposed does not fit the misconduct established in this matter.

As to his claim of panel bias

Respondent's argument is misplaced and otherwise without merit. Respondent is claiming persecution for his beliefs and political views and is focusing on what he presumes are the beliefs and political views of the three hearing panelists; however, this case is not about beliefs, it is about respondent's behavior. There is no evidence respondent was disciplined by the hearing panel because of his beliefs; rather, the evidence supports the conclusion that it was respondent's behavior that warranted a finding of misconduct.

The merits

With regard to Count One, there is overwhelming support for the panel's finding of misconduct. Respondent's blog was a public forum and contained vicious, unfounded attacks against Armstrong personally. This was not merely disagreeing with Armstrong's views - this was a "smear" campaign against Armstrong, where it seemed respondent had no boundaries. For example, the home page of the blog featured Armstrong's face next to a swastika; respondent referred to Armstrong as "the privileged pervert;" he referred to Armstrong as a "gay Nazi" on national television; he accused Armstrong of hosting an orgy at his University of Michigan dorm; he accused Armstrong of being sexually promiscuous and engaging in lewd activities in churches and children's playgrounds - all allegations that had absolutely no factual support. The civil jury concluded that, in total, 100 statements made by respondent were defamatory - and more than 60 of those were made with actual malice. Respondent also repeatedly followed Armstrong to various public establishments and private parties, including Armstrong's personal residence. Even when Armstrong was working in Washington D.C., respondent contacted Armstrong's employer. Respondent's rhetoric was not political as asserted; it was hostile and vindictive, and a personal attack on Armstrong.

Likewise, with regard to Count Two, misconduct is also clear. In the complaint against Deborah Gordon, respondent alleged Gordon interfered with the internal investigation the Attorney General's office conducted regarding respondent's actions, and as a result, he was discharged from the AG's office. Respondent made these allegations recklessly without any support or concern for the truth. In fact, prior to filing the lawsuit, respondent knew the AG special investigator had already testified that he had never communicated with Gordon prior to the completion of his investigation. As determined by the district court and affirmed by the Sixth Circuit Court of Appeals, respondent's claims were based entirely on speculation. For these reasons, there was also sufficient evidence introduced to support the panel's finding of misconduct in Count Two.

(Mike Frisch)

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)