Sunday, March 26, 2017

Ontario Admits Disbarred Florida Attorney

An application for admission to practice was allowed (over a dissent) by a Tribunal Hearing Division of the Law Society of Upper Canada

The issue before us is whether the applicant, Ronald Ori Davidovic, is of good character and should receive a licence to practise as a lawyer in Ontario. He was called to the Florida Bar in 1996 and practised there for eight years. He pleaded guilty in November 2004 to one count of receiving material containing the visual depiction of minors engaging in sexually explicit conduct. He spent over two years in federal prison and was registered as a sex offender in Florida.

 In December 2004, the applicant petitioned the Florida Supreme Court for a disciplinary resignation. Effective February 1, 2005, he was granted permission to resign from the Florida Bar, with leave to reapply after five years.

Mr. Davidovic did not reapply to the Florida Bar. In 2015, he applied for licensing as a Lawyer to the Law Society of Upper Canada, and he intends to move to Toronto, where several of his close relatives live.

His application proceeded to a hearing, where the parties presented an Agreed Statement of Facts, a corresponding Book of Documents, the applicant's Book of Character References, and a Joint Book of Authorities, all on consent.

The only evidence that was not presented jointly was the testimony of the applicant. When asked for the Law Society's position at the outset of the hearing, Law Society counsel, Amanda Worley, said she would hear the applicant's evidence and then would advise the panel of the Law Society's final position. In closing submissions, Ms. Worley did not oppose this application and she gave the Law Society's basis for reaching this conclusion.

We have reviewed the dissenting reasons of Mr. Cooper.

For reasons that follow, we allow the application.

The crimes

  In January 2004, the police executed a search warrant at his home. At the time of the arrest the applicant was married with a three year old child, and his wife was pregnant. In the ensuing period, the applicant confessed to his wife, to the police authorities, and ultimately to the Florida Court, that he had been viewing adult, teen and child pornography for the previous several years. There is no evidence that the applicant participated in any distribution of pornography, and there is no evidence of his involvement in any improper sexual contact with any children.

The majority found he satisfied the criteria for admission

The applicant's conduct in the years preceding 2004 was reprehensible, but it is not an automatic or permanent bar to his admission, given the evidence and positions of the parties, and in light of the applicant’s determination to be an ethical and productive lawyer.

There are many Tribunal decisions in which the facts of the individual case weighed in favour of licensing or reinstatement, despite the earlier commission of serious criminal offences. In the recent decision in Yeager, it was narcotics trafficking and theft under. In Baker, the applicant committed criminal harassment relating to a family dispute. The applicant has thoroughly understood what he has done. He has worked very hard since then to reach this point in terms of rehabilitation.

We therefore find that the applicant is of good character and grant his application for licensing as a Lawyer in Ontario.

Paul Cooper dissented

In assessing this application to determine whether Mr. Davidovic is presently of good character, we must review and consider the totality of the evidence. The record on this application is lacking, and at times inconsistent. Mr. Davidovic is a poor historian and his testimony lacks reliability. The applicant was often inconsistent with the Agreed Statement of Facts..

Mr. Davidovic is not required to warrant perfection but he must show, on the balance of probabilities, he is presently of good character. The applicant has failed to satisfy this burden. Despite his diagnosis of paraphilia in 2008, Mr. Davidovic has failed to provide us with any information on this unresolved issue that underpins the original illegal behaviour and misconduct. I do not believe the evidence shows on a balance of probabilities that he is rehabilitated nor that he fully comprehends victim empathy or remorse. For the above reasons, I would dismiss this application. 

(Mike Frisch)

March 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, March 25, 2017

Waste Not

The Virginia State Bar Disciplinary Board has summarily suspended a convicted attorney

The story is told on the web page of the United States attorney for the Eastern District of Kentucky

Daniel R. Goodwin, an attorney from McLean, Virginia, has been convicted of defrauding a Laurel County construction company, in connection with a purported project to build a “green recycling center” in Manchester, Ky. The company, Elza Construction, LLC, lost $1.32 million upfront and incurred several million dollars more in excavation and site preparation costs, but nothing was ever built at the site.

 Late Thursday, a federal jury in Frankfort delivered a guilty verdict on four counts of wire fraud and one count of conspiracy to commit wire fraud. The verdict came after a week of trial and a day-and-a-half of deliberation.

 The evidence at trial established that from 2008 until at least 2011, a company called “Waste Not Technologies,” which also went by the name “Global Green Holdings,” made false promises to the city of Manchester and several would-be contractors who wanted to work on building a green recycling center that would turn municipal waste into useful products like railroad ties and insulation. David Bennett, the chief executive officer of Global Green Holdings, promised the project would create 1,400 jobs and bring in millions in revenue.

 Part of this scheme was to require contractors like Elza Construction to send money to an escrow account in lieu of a traditional construction performance bond, with the promise that the money would be used to release financing for the project and that the money would be returned on a set schedule, typically within 3 to 4 months. Daniel Goodwin controlled the escrow account that received money from Elza Construction and others. Instead of following the terms of written agreements, he distributed the money among his co-conspirators and kept some of it for himself. The money was never returned to Elza Construction or any of the other contractors.

 Carlton S. Shier, IV, Acting United States Attorney for the Eastern District of Kentucky, and Amy Hess, Special Agent in Charge, Federal Bureau of Investigation, jointly announced the verdict. The case was investigated by the FBI and Assistant U.S. Attorneys Gregory Rosenberg and Andrew Trimble prosecuted the case on behalf of the federal government.

 Goodwin is scheduled to be sentenced on June 14, 2017. He faces a maximum sentence of 20 years on each count of wire fraud, and a maximum of five years on the count of conspiracy to commit wire fraud. However, any sentence would be imposed only after the Court has considered the U.S. Sentencing Guidelines and the applicable statutes.

He has been ordered to show cause as to final discipline. (Mike Frisch)

March 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Silver Linings Playbook

The Indiana Supreme Court has publicly reprimanded a prosecutor for a Rule 8.2 violation

In 2000, Michael Dean Overstreet was convicted of murder and other charges in Johnson County and sentenced to death. Respondent was one of the deputy prosecutors involved with the case at the trial and sentencing phases. In 2013, this Court authorized the filing of a successive petition for post-conviction relief. The matter initially was before Judge Cynthia Emkes, who presided over Overstreet’s trial and sentencing. However, Judge Emkes filed a notice of recusal, and this Court appointed St. Joseph Superior Court Judge Jane Woodward Miller as special judge to hear the case. Overstreet’s successive PCR petition was litigated in St. Joseph County in 2014, and in November 2014 Judge Miller granted the petition. Respondent, now the elected Johnson County Prosecutor, did not participate in the successive PCR litigation.

After Judge Miller granted the petition, Respondent provided a statement to the Indianapolis Star for public dissemination. In that statement, Respondent indicated he was “suspicious” of the transfer of the case to Judge Miller and then offered as purported support for that suspicion additional commentary that was false, misleading, and inflammatory in nature. In considering the statement itself, and the surrounding circumstances in which it was made, we agree with the hearing officer that the statement attacked Judge Miller’s qualifications or integrity and that Respondent made the statement with reckless disregard as to its truth or falsity.

Indystar reported the ethics charges and the interview that caused the concern

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," [prosecutor Bradley] Cooper told IndyStar via a text message for a story published Nov. 20, 2014.

"The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal."

The complaint cites another comment Cooper made the same day to The Associated Press:

"Once this case got shipped to a distant judge who is not beholden to the voters and citizens of Johnson County, it didn’t surprise me that she didn't want to create the headache for herself by keeping with this case.... I think the idea that this rapist murderer is basically too sick to be executed is ridiculous."

The comments came after St. Joseph Superior Judge Jane Woodward Miller ruled that Overstreet was not competent to be executed. Overstreet was convicted and sentenced to death in the 1997 murder and rape of Franklin College student Kelly Eckart, 18.

The Indiana Supreme Court transferred the case after Johnson Superior Judge Cynthia Emkes, who presided over Overstreet's trial, removed herself for health reasons.

The commission claims Cooper's comments violated a professional conduct rule barring lawyers from making false statements "concerning the qualifications of a judge." notes that he views his role as"proudly over-crowding our prisons" and had the story of a 2011 incident

In 2011, Cooper—who has been serving as Johnson County prosecutor since 1994—was accused of staking out a local detective's home in search of a woman he was pining over. Detective Ryan Bartlett reportedly found Cooper and another man parked in a van outside his home. According to the incident report Bartlett filed, Cooper was in the passenger's seat holding an open beer bottle when Bartlett approached and initially attempted to hide his face. The driver, who turned out to be a suspended police officer facing criminal charges, told Bartlett that he and the prosecutor were searching for a woman who worked at the Sherriff's [ssic] office and whom they had believed was in Bartlett's house.

According to Johnson County Sheriff Doug Cox, Cooper—who is married—was thought to be having or attempting to have an affair with the (also-married) woman, whom he allegedly sent text messages and emails to from his work accounts and visited at home. Cooper reportedly said he was "messed up in the head over" the woman and "was having a really difficult time handling it." The incident was reported to the Indiana Supreme Court Disciplinary Commission but no action was taken.

 (Mike Frisch)

March 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 24, 2017

No Right For Firms To Accept Outside Investments

An opinion issued today by the United States Court of Appeals for the Second Circuit

Plaintiffs‐Appellants Jacoby & Meyers, LLP, a limited liability law partnership,  and Jacoby & Meyers USA II, PLLC, a related professional limited liability company  (together, “plaintiffs” or “the J&M Firms”), challenge the constitutionality of a collection  of New York regulations and laws that together prevent for‐profit law firms from  accepting capital investment from non‐lawyers. The J&M Firms allege that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access the courts—rights that are grounded, they argue, in the First Amendment. The District Court (Kaplan, J.) dismissed the complaint, concluding that the J&M Firms failed to state a claim for violation of any constitutional right and that, even if such rights as they claim were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest. We agree that under prevailing law the J&M Firms do not enjoy a First Amendment right to association or petition as representatives of their clients’ interests; and that, even if they do allege some plausible entitlement, the challenged regulations do not impermissibly infringe upon any such rights. We therefore AFFIRM the District Court’s judgment.  

Through a set of prohibitions of long standing in New York and similar to those widely prevalent in the fifty states and the District of Columbia, the State of New York prohibits non‐attorneys from investing in law firms. See generally N.Y. State Bar Ass’n, Report of the Task Force on Nonlawyer Ownership, reprinted at 76 Alb. L. Rev. 865 (2013) (“NYSBA Report”). The prohibition is generally seen as helping to ensure the independence and ethical conduct of lawyers. See id. at 876‐77. Plaintiffs‐Appellants  Jacoby & Meyers, LLP, a limited liability partnership (the “LLP”), and Jacoby & Meyers USA II, PLLC, a related professional limited liability company (the “PLLC”; together,  “plaintiffs” or the “J&M Firms”) bring a putative class action challenging New York’s rules, regulations, and statutes prohibiting such investments. The infusions of additional capital that the regulations now prevent, they declare, would enable the J&M Firms to improve the quality of the legal services that they offer and at the same time to reduce their fees, expanding their ability to serve needy clients. They assert that, were they able to do so, they would act on that ability in the interests of such potential clients. Because the laws currently restrict their ability to accomplish those goals, they maintain, he state regime unlawfully interferes with their rights as lawyers to associate with clients and to access the courts—rights they see as grounded in the First Amendment.

Circuit Judge Susan Carney affirmed the district court disposition. (Mike Frisch)

March 24, 2017 in Billable Hours, Law & Business, Law Firms | Permalink | Comments (0)

Risky Business

The Kansas Supreme Court ordered a partially-stayed two-year suspension of an attorney, affirming findings of a hearing panel that he had engaged in escrow violations and a prohibited business transaction with his client.

The court rejected the attorney's contentions with respect to both findings and held he had failed to "promptly deliver" entrusted funds

Here, as the respondent testified, he was undisputedly obligated to return at least $10,000 to R.K. Both R.K.'s and the respondent's testimony indicates the respondent was obligated to return the money on demand. Under those circumstances, the terms "on time" and "without delay" would mean that the $10,000 should have been returned to R.K. immediately or, at least, very soon after R.K. made it clear in his November 3, 2014, complaint filed with the Disciplinary Administrator that he wanted his money returned. The Disciplinary Administrator's office transmitted the complaint to the respondent via a letter dated November 6, 2014. On November 26, 2014, the Disciplinary Administrator's office sent a second letter, noting: "It has now been well over 15 days since that letter was mailed to you and to date this office has not received a response." The second letter indicated a formal complaint would be filed unless a response was received within 10 days. On December 5, 2014, the respondent wrote the Disciplinary Administrator's office and said he would respond by December 12, 2014. Then, on December 17, 2014, the respondent sent a letter to the office of the Disciplinary Administrator addressing the complaint. The next day, R.K. signed a receipt acknowledging he had "[i]n hand received from John P. Biscanin" the $10,000 cash and the two checks, one for funds held in trust related to the respondent's representation and the other from the respondent's business account.


The recommendations of the hearing panel and office of the Disciplinary Administrator are advisory only and do not prevent us from imposing greater or lesser sanctions. Kansas Supreme Court Rule 212(f) (2017 Kan. S. Ct. R. 255); see In re Holste, 302 Kan. 880, 888, 358 P.3d 850 (2015). A majority of this court rejects the hearing panel's recommended discipline of 2 years' suspension, with a truncated period of 3-months' suspension and supervised probation for a period of 2 years. While we unanimously agree on the appropriateness of a 2-year suspension with some portion being stayed while the respondent serves a 2-year period of probation, a majority of the court would require the respondent to serve a 6-month suspension before the stay.

Additionally, we agree with the Disciplinary Administrator's office that an independent audit of the respondent's client trust account is appropriate in this case. Accordingly, the respondent is ordered to file an amended probation plan with the Disciplinary Administrator before the start of his probation period, which shall include a provision for an independent audit to assess whether the respondent still possesses client funds belonging to R.K. The respondent shall also comply with Kansas Supreme Court Rule 218 (2017 Kan. S. Ct. R. 262). Before reinstatement is allowed, the respondent shall comply with Rule 219(b) (2017 Kan. S. Ct. R. 263) (verified petition for reinstatement). A reinstatement hearing shall not be required.

Video of oral argument is linked here. (Mike Frisch) 

March 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Protecting Vulnerable Hoosiers: State May Sue Foreclosure Defense Law Firms

The Indiana Supreme Court affirmed the denial of summary judgment in favor of defendant law firms

Consumer Attorney Services, P.A., The McCann Law Group, LLP, and Brenda McCann (collectively “Defendants”) appeal the trial court’s denial of their motion for summary judgment, claiming they are all expressly or impliedly exempt from liability under each of the four statutes cited by the State in this civil suit. Finding that none of the Defendants properly fit within these statutory exemptions, we affirm.

The story

CAS is a Florida corporation that purports to specialize in foreclosure- and mortgage related legal defense work, requiring non-refundable retainers and monthly fees up front to be automatically deducted from bank accounts. McCann was an attorney licensed in Florida, who acted as CAS’s manager. CAS subcontracted with at least five Indiana attorneys to provide local services, who executed “Of Counsel,” “Associate,” and/or “Partnership” agreements with CAS. Under the “Partnership” agreement, the attorney acquired a 1% non-voting interest in CAS, and was to be involved with client intake and screening, to administer the referral of Indiana cases to other Indiana lawyers employed by CAS, and to provide clients with direct legal services as needed. Under the “Associate” agreements, CAS handled all aspects of client intake and communication, document preparation, and billing, with the attorney’s role limited to speaking with clients only when directly asked by the client, and meeting with them only once prior to filing any legal documents such as a bankruptcy petition (in order to obtain appropriate signatures), and speaking with opposing counsel only when “necessitated.” Appellant’s App. at 86. Under the “Of Counsel” agreements, the lawyer was a completely independent contractor, but was to perform essentially the same functions as under the Associate agreement. All of these agreements were entered into before CAS registered as a foreign entity authorized to do business in Indiana.

Complaints against the firms came quickly and the state filed this civil case.

The court found the claims were properly brought 

This Court has not previously interpreted the CSOA, but as discussed above, it is designed to serve the humane purpose of protecting vulnerable Hoosiers from further financial depletion by predators, and its specific protections exceed those contained in our common law. It is thus appropriate that the CSOA be liberally construed, in favor of those invoking its protections...

[Our] interpretation also compliments this Court’s disciplinary authority. In its argument supporting a CSOA law firm exemption, CAS asserts that such a ruling would “uphold[] the authority of the Indiana Supreme Court to discipline attorneys [and] regulate the practice of law[.]” Appellant’s Br. at 21. But the case for this construction of our Admission and Disciplinary Rules does not persuade. Rule 23 governs the discipline of attorneys, as individuals – it contains no provisions for the discipline of an entire firm as a whole. See Ind. Admis. Disc. R. 23 Sec. 3(a) (2017) (listing “types of discipline [which] may be imposed upon any attorney found to have committed professional misconduct”) (emphasis added). Indeed, with respect to law firms specifically, we have only three significant provisions regulating their conduct: (1) the unauthorized practice of law, Ind. Admis. Disc. R. 24; (2) registration as a Professional Company, Limited Liability Company or Limited Partnership practicing law in the State of Indiana, Ind. Admis. Disc. R. 27 Sec. 1, 1(b); and (3) maintaining adequate professional liability insurance for the firm, Ind. Admis. Disc. R. 27 Sec. 1(g). We thus find it reasonable that our General Assembly would choose to exempt attorneys specifically (who are subject to far more extensive disciplinary action by this Court5 ) while not exempting their firms.

March 24, 2017 in Bar Discipline & Process, Hot Topics, Law & Business, Law Firms | Permalink | Comments (0)

Thursday, March 23, 2017

As Sober As A Judge

A circuit court judge must adhere to an agreement to comply with treatment under the supervision of the Kentucky Lawyers Assistance Program ("KYLAP").

The judge was the subject of 13 charges of misconduct and submitted to an evaluation. He disclosed that he drank 2-3 vodkas, 3-4 times a week "alone."

He entered into an agreement in which he admitted ten violations and accepted a period of suspension followed by abstinence and monitoring by KYLAP.

He objected to the supervision and the sobriety requirement.

The Kentucky Supreme Court held him to his bargain, noting that the judge found the agreement "inconvenient and a detriment to the enjoyment of his time off the bench" but was nonetheless enforceable given the admitted misconduct.

The Lexington Herald Leader reported on the ethics case.

At the hearing Monday, Combs acknowledged he made harassing or contentious phone calls to city officials about several things, including a fine against his mother-in-law over a city ordinance, and that he used his official stationery to send city officials requests for information on nonjudicial matters.

Combs said he didn't recall calling city officials derogatory names such as "cokehead" and "dumbo," as the commission charged, but he said there was a good-faith basis for the charges.

He also admitted making improper calls to officers at the Pikeville Police Department, accusing them of making false arrests, hectoring them over people parking in the private lot of the church he attends, and calling police thieves and trash.

The conduct commission charged that in one case Combs told a police captain that the next officer who pulled Combs over would get a "bullet in the head."

Combs said he did not recall that remark or calling officers names, but again acknowledged there was a basis for the charge.

The longtime judge also acknowledged he presided over cases involving Equitable Production, an oil and gas exploration company, without disclosing in the court record that he had a business relationship with the company.

Combs is part owner of a company that leased drilling rights to Equitable. He allegedly made a belligerent call to Equitable at one point, accusing the company of shorting him on lease payments during a time the company had a case in his court, though he gave up that case.

Combs said that his tie to the company was well known and that he thought he had disclosed it properly.

Combs also acknowledged a charge that he improperly took part in political activity, including chastising people for supporting certain candidates.

He criticized city commission members before the 2014 election and expressed an interest in the outcome, but then he presided over a lawsuit challenging the election and disqualified a candidate, according to the charges.

The commission dismissed a charge that Combs posted improper comments on the gossip website Topix, and parts of two other charges were dismissed.

(Mike Frisch)

March 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

A Cavalier Attitude In The Bluegrass State

The Kentucky Supreme Court has denied relief to an incarcerated defendant who was convicted of biting off the ear of a fellow inmate.

The defendant was represented at trial by a public defender from the Pacudah Department of Public Advocacy.

Another attorney in the same office represented the victim in an unrelated criminal matter in which the representation concluded eight days prior to the trial of the defendant.

Defense counsel advised the court of the potential conflict on the morning of trial (with her erroneous belief that the representation of the victim was ongoing). The defendant refused to sign a waiver of the conflict of interest but the trial nonetheless went forward to conviction.

The court here found counsel was not burdened by an actual conflict of interest under these circumstances.

As to the ethics of the situation: "Attorneys ethical obligations under our Rules of Professional Conduct do not define the scope of [the defendant's] Sixth Amendment rights."

Translation: It may have been unethical, but the defendant gets no relief. 

Justice Hughes concurred and expressed concern about Pacadah DPA's "cavalier approach to shielding its clients from intra-office conflicts."

Justice Wright also concurred, opining that a public defender office need not be treated the same as a for-profit law firm for imputed conflict of interest purposes.  (Mike Frisch)

March 23, 2017 in Clients, Professional Responsibility | Permalink | Comments (0)

Attorney Suspended: Twice "Behaved In A Grossly Vulgar And Antisocial Manner"

A 180 day suspension with a condition imposed by a hearing panel was affirmed by the Michigan Attorney Discipline Board

This matter arises from a Consolidated Notice of Filing of Judgment of Conviction and Formal Complaint filed by the Grievance Administrator. The Judgment of Conviction was based on respondent's three misdemeanor convictions of two counts of disturbing the peace and assault and battery in a matter titled People v Alexander A. Melnikov, Oakland County Circuit Court Case No. 2015-253175-FH. The formal complaint was based on respondent's no contest plea to disorderly person in a matter titled People v Alexander A. Melnikov, 44th District Court Case No. 84152...

In this matter, the hearing panel's report clearly and precisely explains the panel's reasoning why they felt a suspension greater than even what the Grievance Administrator was requesting be imposed was appropriate in this matter:

On at least two separate occasions, respondent behaved in a grossly vulgar and antisocial manner. He did this by his own admission, when he was both severely intoxicated and when, according to his testimony, he was completely sober. (Tr 4/14/16, pp 21-22,24.) His conduct since being placed on probation for two separate crimes demonstrates clear evidence that he is unremorseful. His conduct the day of the hearing, both by his tardiness and remarkable lack of preparation, drew understandable comment from all of the panel members. Respondent himself has demonstrated highly questionable skills to allow for continuation in the practice of law without substantial discipline and oversight.

What a difference a day makes as an attorney suspended for 180 days or more must petition for reinstatement

[A] suspension longer than 179 days is appropriate in light of the number of applicable aggravating factors, which include a prior disciplinary offense (contractual probation); a pattern of misconduct; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary process; submission of false evidence, false statements or other deceptive practices during the disciplinary practice; and illegal conduct. (ABA Standards 9.22(a), (c), (e), (f), and (k), respectively.) (Report 7/28/16, p 5.)...

Consideration of these factors included respondent's failure to disclose to the Grievance Administrator and the panel that he was the subject of probation violation hearings in both underlying criminal matters and that it was because of one of those hearings, not simply an "appointment" that ran late, that respondent was late for his disciplinary hearing on April 14, 2016. Respondent presented no evidence, beyond his own testimony, of any applicable mitigation and the hearing panel found that no mitigating factors applied.


the Board is not persuaded that the hearing panel's decision to order a 180-day suspension, with a condition, was inappropriate.

(Mike Frisch)

March 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

False Statements In Federal Disciplinary Matter Draws New York Suspension

Reciprocal discipline has been imposed by the New York Appellate Division for the First Judicial Department based on sanctions ordered by a federal district court

In February 2013, the Committee on Grievances for the United States District Court for the Southern District of New York (COG) suspended respondent for one year based upon his efforts, and those of an associate he supervised, to conceal a client's new employment and the [*2]use of a false and misleading expert report on economic damages in an attempt to extract a favorable settlement in Fryer v Omnicom Media Group (09 Civ 9514). Respondent had been additionally charged with misleading the District Court as to those events, but after respondent claimed several times, in two declarations, that his misstatements were inadvertent rather than knowing, the COG ultimately did not impose discipline for lying to the District Court, and did not make a determination as to whether respondent's explanations for his misrepresentations were persuasive or credible. Respondent was eventually reinstated in the Southern District on April 17, 2014.

In April 2013, the Attorney Grievance Committee (Committee) sought an order imposing a one-year reciprocal suspension based upon respondent's misconduct before the District Court. Respondent consented to the relief requested but asked that the suspension be imposed nunc pro tunc to February 28, 2013, the date that he voluntarily ceased practicing law. By order entered September 10, 2013, this Court granted the petition and suspended respondent from the practice of law for a period of one year, nunc pro tunc to February 28, 2013 (110 AD3d 164 [1st Dept 2013]). In February 2014, respondent moved for his reinstatement without a hearing, which the Committee did not oppose, and on May 29, 2014, this Court reinstated respondent to the practice of law in the State of New York.

In August 2014, after respondent had already been reinstated in the Southern District, the COG became aware of new evidence suggesting that respondent had intentionally lied to the court in the Fryer matter and to the COG in connection with the 2013 disciplinary proceeding. Specifically, two of respondent's former law partners stated that they had recently discovered evidence that respondent had knowingly lied to the District Court during a sanctions hearing in the Fryer matter, and that his subsequent explanations to the court, which he repeated to the COG during the 2013 disciplinary proceeding in defending himself on the charge of lying, falsely asserted that his misstatements were inadvertent instead of deliberate.

In letters dated December 2014 and February 2015, the COG directed respondent to answer the allegations, which he did by submitting an affidavit and a supplemental affidavit. In those submissions, respondent disputed certain factual allegations in the complaint that his former law partners had submitted, but he largely conceded the offending conduct — namely, falsely stating to the District Court and the COG that his conduct in the Fryer matter had been inadvertent when, in fact, it had been knowing. Based upon respondent's submissions, the COG issued an order to show cause and statement of charges alleging that respondent had violated New York Rules of Professional Conduct (22 NYRR 1200.0) rules 3.3 and 8.4. In a March 2016 affidavit, respondent admitted to the factual allegations and each of the charges, presented mitigating evidence, and proposed a sanction of no greater than a public censure, with a condition that he provide one year of full time pro bono legal service.

After a review of all of respondent's submissions, the order to show cause, and the statement of charges, the COG concluded that respondent had raised no issues requiring a hearing, and, on the basis of the record and respondent's own admissions, found respondent had, knowingly and with venal intent, engaged in professional misconduct by making false statements to the District Court and to the COG in connection with his conduct in the Fryer matter. Thus, the COG concluded, there was clear and convincing evidence that respondent had violated rules 3.3(a)(1) and 8.4(c), (d) and (h). Taking the mitigating and aggravating circumstances into account, the COG decided that a one-year suspension from practice in the Southern District was the appropriate discipline. The opinion and order suspending respondent was dated September 12, 2016, and directed that respondent's one-year suspension be effective immediately.

Based on the Southern District's September 12, 2016 order, the Supreme Court of Pennsylvania issued an order, dated January 18, 2017, imposing reciprocal discipline on respondent. The Pennsylvania order imposed a one-year suspension on respondent, effective 30 days from the date of the order.


the Committee's petition for reciprocal discipline should be granted, and respondent suspended from the practice of law in the State of New York for a period of one year, nunc pro tunc to September 12, 2016 and until further order of this Court.

He was also reciprocally suspended in Virginia. (Mike Frisch)

March 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Mistake Was Made In The Clients Favor But The Attorney Gets A Three-Year Suspension

An inexperienced attorney used a New Jersey retainer agreement form for a New York contingent fee matter and got disbarred in New Jersey for misappropriation of litigation proceeds.

He would have been entitled to what he took if he had used the proper form.

He now has been reciprocally suspended by the New York Appellate Division for the Second Judicial Department.

In 1990, Alfred T. C. Peng, Tzu Li Hsu, Joseph Huang, Stephen Huang, Pen Fa Lee, and Veronica Wan, as administrator of the estate of Chee C. Wan (hereinafter collectively the clients), victims of a fraudulent investment scheme, commenced an action against Dr. Fabian A. Sy, FAS Development Co., Inc., and 225 Associates, in the Supreme Court, Queens County, for an accounting and to recover damages for fraud and breach of fiduciary duty. The lawsuit languished for 15 years without progress. In 2005, the clients were referred to the respondent. Although only recently admitted to the Bar, the respondent agreed to represent them.

The respondent executed a retainer agreement on or about September 27, 2005, which provided that his fee would be based on a percentage of the net recovery: "33 % on the first $500,000 recovered; 30% on the next $50,000 [sic] net recovered; 25% on the next $500,000 net recovered; and 20% on the next $500,000 recovered." Net recovery was defined as the total recovered on each client's behalf, minus costs and expenses and minus any prejudgment interest. Unbeknownst to the respondent, the retainer agreement used by him, which he downloaded off the Internet, was intended for use in New Jersey, and only in personal injury actions, not a commercial business action.

The action proceeded to a nonjury trial, which lasted from September 17, 2007, through October 22, 2007. In 2008, the respondent successfully obtained a substantial judgment in favor of his clients. The defendants appealed the judgment, depositing funds with the Commissioner of Finance of the City of New York to secure the appeal. The judgment was affirmed on appeal, and on July 23, 2009, the trial court entered an order allowing the respondent to take possession of the funds on deposit. The respondent received a check dated August 14, 2009, made payable to him as attorney for his clients, in the amount of $3,548,506.91 (hereinafter the Sy judgment) and deposited the same into his trust account.


 On or about August 18, 2009, the respondent disbursed from his attorney trust account approximately $525,034.85, representing his legal fees. In addition, on or about August 27, 2009, he disbursed from his attorney trust account approximately $734,908, representing the balance of his legal fees.

The clients sued and the bar got involved.

Notwithstanding a split decision before the New Jersey Disciplinary Review Board, the attorney was disbarred in New Jersey for intentional misappropriation.

That was deemed unduly harsh here, where the Appellate Division ordered a three-year suspension

In determining the appropriate sanction, we have taken the following mitigating factors into consideration: the respondent was an inexperienced attorney, who mistakenly used the wrong retainer provision; the parties understood throughout the proceedings that the respondent's recovery would be one-third of the recovery; and the clients, only after the recovery and upon being made aware of the written terms of the retainer agreement, decided to capitalize on the respondent's mistake and hold him to the terms of the written agreement. In addition, the respondent has no prior disciplinary history, and now concedes that the better course of conduct would have been for him to set aside the disputed funds, litigate the fee issue in court, and then disburse the funds. The following aggravating factors have also been considered: the respondent withdrew his legal fees prior to resolution of the disputed fee issue; the respondent put the funds out of the reach of the courts and his clients when he used the funds to pay debts he owed to creditors in China; and the respondent, to date, has not paid the 2015 judgment issued by the Superior Court of New Jersey.

(Mike Frisch)

March 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Suspended For Failure To Account For Monies Received In Bankruptcy Representation

An attorney has been suspended by the New York Appellate Division for the Third Judicial Department

Respondent is the subject of an investigation by the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) regarding allegations that he has, among other things, failed to account for $17,500 that he received in connection with a client's bankruptcy matter. Pursuant thereto, AGC directed respondent to provide, among other things, his attorney escrow account records. Respondent failed to produce the requested records and AGC thereafter successfully applied for a subpoena duces tecum from this Court, directing respondent to produce, among other things, the bank records associated with his receipt and deposit of the $17,500. Notwithstanding this Court's subpoena, respondent again failed to provide AGC with the requested records...

AGC has submitted sufficient evidence establishing respondent's failure to comply with AGC's investigation. Respondent has failed to comply with AGC's numerous lawful demands for the production of bank records, as well as this Court's subpoena duces tecum directing him to produce a full and complete copy of his attorney escrow account records. We find that respondent's noncompliance with AGC's investigation immediately threatens the public interest.

 (mike Frisch)

March 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Out Of Trust

The Wisconsin Supreme Court expressed some concerns but nonetheless accepted the voluntary license revocation of an attorney admitted in 2008. 

Given the [Office of Lawyer Regulation]'s admitted inability to determine whether any particular client or third party is owed any money by Attorney Walsh, and to arrive at a reasonably ascertainable amount, we have no choice but to accede to the OLR's request not to award restitution in this matter. We are disturbed that this outcome appears to result from Attorney Walsh's failure to create, preserve, and/or produce the necessary records. We note, however, that if Attorney Walsh were ever to seek the reinstatement of his license, he would be required to prove affirmatively that he had made full restitution to all persons injured or harmed by his misconduct.

Finally, because this matter is being resolved via a petition for consensual revocation without the need to appoint a referee or hold an extensive hearing, we do not impose any costs on Attorney Walsh.

It began with trust overdrafts

Although the OLR's investigation was hampered by Attorney Walsh's refusal or inability to provide records for his trust account, the available information shows that on multiple occasions, the trust account contained substantially less money than it should have in 2014 and 2015. For example, bank records show that the balance in the trust account was $469,349.55 on May 31, 2014. At that time, the trust account should have contained at least $78,351.86 in funds belonging to two clients, J.M.G. and M.J.E. Subtracting that amount from the balance would leave a remaining balance of $390,997.69. This amount, however, was more than $50,000 less than Attorney Walsh had previously admitted in a letter he should have been holding for another client, a substantial trust. Indeed, that amount would have been m ore than $78,000 less than the amount identified in the March 28, 2014 annual report of the trust. Moreover, the limited records the OLR was able to obtain indicate thatAttorney Walsh deposited over $589,000 into his trust account on behalf of the trust, but those records also show total disbursements of only approximately $530,000 to proper recipients of the trust's funds. Because the OLR has not been able to obtain complete records, it cannot tell whether there were other disbursements to proper recipients for which records are not available or whether Attorney Walsh converted some or all of the remaining trust's funds to his own use...

What is clear is that in at least one case, the balance of Attorney Walsh's client trust account dipped more than $30,000 below the amount that should have been held in trust for just one client. Thus, that amount of client funds had to have been converted to the use of other clients or to Attorney Walsh's personal use.

(Mike Frisch)

March 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, March 22, 2017

Long Delay Benefits Accused Judge

The New York Commission on Judicial Conduct has censured a town court justice

The record before us demonstrates that in performing his judicial duties in several cases in 2010 and 2011, respondent overreached his judicial authority, misapprehended his role as a judge and failed to comply with well-established legal requirements. As respondent has acknowledged, he deserves to be disciplined for his behavior, which was inconsistent with ethical standards requiring every judge, inter alia, to be an exemplar of courtesy, to be faithful to the law and maintain professional competence in it, and to accord to every person with a legal interest in a proceeding the right to be heard according to law (Rules, §§100.3[B][3], 100.3[B][l], 100.3[B][6]). Although it appears that in many respects respondent's conduct was well-intentioned and  that his errors of law were isolated and unintentional, it is not disputed that he disregarded his ethical obligations and abused the power of his office.

Most serious, we Respondent's remarks regarding Mr. Colbert's appearance, delivered at two believe, was respondent's misconduct in connection with the Colbert and  Stuper matters.

Respondent's remarks at two separate court appearances five months apart, were improper and unfitting for a judge. At a time when the young defendant facing serious charges was appearing before the judge to report on his treatment and later for sentencing, respondent commented on Mr. Colbert's nose piercing and ear gauges, remarking, inter alia, "What's that thing in your nose? ... When I was a kid we used to do that to all the bulls on the farm"; "What is going on with your earlobes?"; "Aren't those bigger than the last time I saw you? ... Why would you do that?" Further, in sentencing Mr. Colbert to a conditional discharge on a plea to Driving While Intoxicated in satisfaction of multiple serious charges, respondent advised him, "Additional [sic] ... you don't increase the size of your earlobes for the next twelve months. Because if I do have to look at you again, I don't want to look at that." As the referee aptly stated, "That these comments were aimed at a twenty one year old young man struggling with a substance abuse problem only accentuates their inappropriateness."

The jusge stated that he was merely trying to "relax the atmosphere" of the court.

The second matter

In the arraignment of defendant Matthew Stuper on a Harassment charge, which occurred on the same date that respondent sentenced Mr. Colbert, the transcript of the proceeding indicates that respondent increased the bail from $3,500 to $5,000 with no explanation after Mr. Stuper indicated that he was prepared to post the initial amount, suggesting that respondent increased the amount simply because the defendant could post it.

A concurring opinion by Member Emery

The Commission's Determination fairly describes the mitigating factors which support the result we reach. One of them, however, deserves a bit more elucidation, in my view. The chronology of this case, though long delayed for reasons not in the record, has ironically aided this judge in his quest to remain on the bench. The events took place more than five years ago and the record before us does not reveal any similar misconduct before or, more importantly, since. Because we took so long to bring this case to conclusion, the judge plainly benefited from his, apparently, blemishless record. Ironically, the delay in this case supports the conclusion that Judge Clark has demonstrated that he can perform his duties properly and effectively and thus is not  a threat to the public.

By noting this factor in this case, I do not want to imply that we should suspend our process so that a judge can demonstrate her fitness after misconduct has occurred. I do not think there was any intent to allow this case to meander for so long. It is indisputable that delays of this length are bad for the judge, the Commission and the public. It just so happens that in this case, notwithstanding that the charges pending against the judge must have weighed heavily on his mind, the lengthy delay and the judge's ability to function effectively during the pendency of his case worked to his benefit.

(Mike Frisch)

March 22, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 21, 2017

Magical Lawyer Makes License Disappear

An attorney was permitted to surrender his license after he had admitting defrauding his criminal client by the Tribunal Hearing Division of the Law Society of Upper Canada.

Mr. Munir represented a client in a criminal prosecution for sexual assault. Eight days before the trial, the Crown told Mr. Munir that it was discontinuing the prosecution because the complainant had recanted the allegations. The charges were to be formally discontinued on the first day scheduled for the trial.

Mr. Munir phoned his client’s sister the day after he learned the charges would be discontinued, telling her that he was making an “under the table” deal to have the charges dropped. He said that it involved police bribery, was “top secret” and that she should not tell anyone. He told her to come up with money so he could negotiate the bribe. The same day he talked to the client. He said that if no money was provided for a bribe there was a chance the client would have to go to jail.

The client’s sister learned that the charges were being dropped, but did not tell Mr. Munir that she knew. He phoned her again and told her he needed the money by that evening because the police officers with whom he was trying to make a deal were working nights. The client’s sister then went to the Toronto Police Service to make a complaint. She agreed to be an agent for the police in investigating Mr. Munir.

 The day before the withdrawal of the charges was to happen, Mr. Munir exchanged a series of text messages with the client’s sister trying to co-ordinate payment of the money:

LAWYER: This is urgent try to understand we need a break not the cops

[SISTER]: I know it’s very important, but if we can’t make it tonight what will happen to my brother’s charges?

LAWYER: Well a trial is in the hands of the judge. He can send a person to jail or acquit. I will strongly suggest we meet tonight. Trial is tomorrow. Call me ASAP.

[SISTER]: Am driving will call you when stopped.

LAWYER: It’s your brother’s case and I expected that you would be very serious but what I see is little or no worry on your part.

[SISTER]: How much do I need to come up with?

LAWYER: Call me.

Mr. Munir and the client’s sister spoke several times later that day. He told her he needed $1,000 by 9:00 am the next day. Mr. Munir emphasized the urgency of the situation, noting that this was about her brother’s life and he could be deported as a result of the criminal proceeding. She agreed and said that a friend would help her get the money. In fact, the police had arranged for an undercover police officer to pose as the friend.

On the morning of the scheduled trial, the Lawyer spoke with the client’s sister who took a call from her “friend”. She told him the money would not be available until the next day. He told her he needed the money because the deal was done on his end and she had given him her word. He also reminded her that he was doing a lot for them and that she should keep her side of the bargain.

On the morning scheduled for the trial, the client and Mr. Munir sat outside the courtroom waiting for the court to open. At one point Mr. Munir left to go somewhere. When he returned, he told the client that he was “free to go”.

The next day, Mr. Munir met with the client’s sister and the undercover officer posing as her friend at a coffee shop to receive the $1,000. During the conversation, Mr. Munir said that

he was a “magical lawyer”; “it is always very hard… it takes cash”; he had been working on it for about two months and had to find the right person he could “guarantee” that the matter would end once the money was paid but if the money was not paid, there “can be problems” and the case could be re-opened within a year; and it was a police officer taking the bribe and the client could go back to jail if the money was not paid because “[c]ops are very powerful people.”

At the end of the discussion, the undercover officer paid Mr. Munir $1,000 in cash. He took it and was arrested and charged.

 In September 2014, he pled guilty to fraud and was sentenced to six months in jail followed by two years probation. He has completed his jail term and at the time of the hearing was on probation.

The tribunal considered evidence of damage caused by alcohol abuse and 

Mr. Munir spoke during the penalty hearing. He recognized that what he did was wrong and accepted responsibility. He accepted that his conduct was “horrendous” and affected all Ontario lawyers. He committed to becoming a better person in the future. Mr. Munir’s statement to us reflected what he said in his interviews with the Law Society and reflected his plea of guilty to the criminal charge. His remorse was genuine and showed his commitment to never doing anything like this again.

(Mike Frisch)

March 21, 2017 | Permalink | Comments (0)

Taming The Hawk

The Illinois Supreme Court has announced dispositions in a number of bar discipline matters including

Mr. Grnacek, who was licensed in 1974, was censured. While a patron at the Korner Keg & Kitchen in Braidwood, he struck another patron in the face with his hand. Later, he was found guilty of two counts of aggravated battery. He was sentenced to serve a 12-month probation term, was ordered not to consume alcohol, and had to perform 75 hours of community service.

The punch was covered by the Morris Herald News

Grnacek, 70, was found guilty of aggravated battery during a bench trial in April for giving Caryn Miller a bloody lip on Dec. 24, 2012, inside the Korner Keg, 285 E. Main St.

Grnacek was drinking in the bar and ordered a pizza from bartender Kiley Murphy, which he complained took too long to arrive.

Murphy and Grnacek exchanged profanity before she ordered him from the bar. Miller, a customer who sympathized with Murphy’s position, told Grnacek he should leave as she was walking by. He then turned and struck her in the mouth.

Grnacek faced a maximum sentence of five years in prison, but since he had no prior criminal record, it was expected he would receive the recommended sentence of probation. He declined comment on the sentence.

 Grnacek, who is known around the Will County Courthouse as “The Hawk,” has practiced law for 40 years.
(MIke Frisch)

March 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Maine Second Chance For Petitioner's Misconduct In Own Divorce

The Maine Supreme Judicial Court denied reinstatement to an attorney suspended for misconduct in his divorce, affirming the conclusion of a single justice.

The record reflects that Jonas has engaged in more than two decades of litigation with his ex-wife during which he was suspended from the bars of three states, jailed for contempt, declared a vexatious litigant, and admonished by a federal court for making frivolous arguments. We affirm the single justice’s judgment declining to reinstate Jonas to the Maine Bar.


In 1990, Jonas and his wife, Linda Jonas, were divorced. Since then, Jonas and Linda have been involved in highly contentious post-divorce litigation. In 1995, while the parties were litigating competing post-judgment motions, Linda alleged that Jonas was secretly liquidating assets and hiding the proceeds in accounts in the Cayman Islands, and that he planned to move there with the couple’s children. The New Jersey Superior Court ordered Jonas not to transfer any assets valued over $15,000 and not to remove the children from a five-state area.

In direct violation of the court’s order, Jonas obtained a loan of $130,000 secured by a mortgage on his residence and continued efforts to sell commercial property that he rented out as a 7-Eleven building, eventually deeding the store to his sister and a friend to be held in trust for the children. In addition, Jonas secretly kept $438,000 in a bank account in the Cayman Islands, and on September 15, 1995, he absconded with his children to the Cayman Islands, where he enrolled them in school.

After Jonas failed to appear at a hearing, the court issued a warrant for Jonas’s arrest, placed the children in Linda’s custody, and took a number of protective measures designed to ensure that Jonas complied with his financial obligations imposed by previous court orders. Jonas continued to defy the court’s orders regarding the payment of his support obligations. Shortly thereafter, Jonas was briefly incarcerated for contempt of court. The New Jersey Appellate Division upheld the series of actions taken by the trial court, stating, “As evidenced by the record, [Jonas] time and again failed to abide by the court’s orders and deliberately avoided paying alimony and other support to the plaintiff.”

As a result of his actions, the New Jersey State Bar suspended Jonas for a period of six months beginning on September 2, 2005, for conduct intended to disrupt a tribunal and conduct that was prejudicial to the administration of justice. Jonas has not been reinstated in New Jersey.

In 2006, Jonas was reciprocally suspended from the bar of Pennsylvania for a period of six months based on the discipline imposed in New Jersey. Jonas was reinstated to inactive status in Pennsylvania in 2014. In 2007, Jonas was reciprocally suspended from the Florida bar for a period of one year for committing conduct intended to disrupt a tribunal.

After his suspension from the New Jersey bar, Jonas’s post-divorce proceedings in New Jersey continued. Jonas failed to attend multiple hearings during these proceedings. Based on Jonas’s “obstinate refusal to comply or properly respond to court orders,” the Appellate Division dismissed an appeal from Jonas, stating, “[Jonas’s] defiance is especially egregious in light of the fact that he was an attorney-at-law of this State and was suspended in this state and others for his willful evasion of court orders.”

At some point prior to 2009, Jonas moved to Montana. When Linda sought to domesticate the New Jersey judgments in Montana, Jonas unsuccessfully launched a collateral attack on the judgments. The court granted Linda’s motion to declare Jonas a vexatious litigant and found that in attempting to defy the New Jersey judgments, Jonas had willfully abused his litigation skills by filing “harassing, duplicative, vexatious, and frivolous” lawsuits, had filed appeals in matters in which he had “no objective good faith expectation of prevailing,” and had caused “needless expense and burden” to Linda.

During litigation that Jonas instituted in the United States District Court for the District of Montana against Linda, her Montana attorney, and others, Jonas was ordered to show cause why he should not be sanctioned pursuant to Rule 11 of the Federal Rules of Civil Procedure for making frivolous arguments. After Jonas failed to show good cause, the court issued a sanction in the form of an admonishment dated August 7, 2014. A copy of its admonishment was forwarded to the state bars of Maine, New Jersey, and Pennsylvania. By the time the admonishment was forwarded to the Maine Bar, Jonas’s reinstatement proceedings were already pending before the Maine Board of Overseers of the Bar.

Petition denied.

To be reinstated, Jonas was required to demonstrate, by clear and convincing evidence, that he possessed the moral qualifications, competency, and learning in law required for admission to practice law in this State, as well as to demonstrate, by clear and convincing evidence, that it was likely that reinstatement would not be detrimental to the integrity and standing of the Bar, the administration of justice, or the public interest. M. Bar R. 7.3(j)(5). We review a single justice’s factual findings for clear error. Bailey, 2014 ME 58, ¶ 16, 90 A.3d 1137. Because Jonas had the burden of proof, he can prevail only if he can establish that the single justice was “compelled to find in his favor.” See In re Williams, 2010 ME 121, ¶ 10, 8 A.3d 666.

Jonas argued that any misconduct that he committed leading to his New Jersey suspension was part of his personal life and should not be dispositive as to his moral character as an attorney. He continued to deny responsibility for many of his actions. For example, he asserted that his decision to abscond with his children in direct violation of the court’s order was not premeditated, and that the New Jersey courts, his former wife, and her attorney were biased and had formed a conspiracy against him. The single justice found that these explanations were not credible.

Furthermore, the Board offered ample evidence, upon which the single justice could rely, to rebut Jonas’s contention that he has behaved ethically since his suspension from the New Jersey bar in 2005. Specifically, the evidence showed that Jonas has demonstrated a pattern of disrespect and contempt for every level of the court system over many years, and in so doing he has abused the very litigation skills that he now seeks to use in Maine.

Based on the above evidence, the single justice did not err in finding that Jonas failed to meet his burden of proving, by clear and convincing evidence, that he recognizes the wrongfulness and seriousness of his misconduct, M. Bar R. 7.3(j)(5)(C), or that he has the requisite honesty and integrity to practice law, M. Bar R. 7.3(j)(5)(E). The single justice was not compelled to find that Jonas possesses the moral qualifications, competency, and learning in law required for admission to practice law in this State, and that it is likely that reinstatement will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest. See M. Bar R. 7.3(j)(5); Bailey, 2014 ME 58, ¶ 57, 90 A.3d 1137. Jonas’s proven willingness to abuse his law license and legal skills, disrespecting multiple tribunals and the truth, left the single justice little choice in this matter.

(Mike Frisch)

March 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Rule 3.7 Exception For Fee Collection Actions

An opinion of the North Carolina Court of Appeals affirms a disqualification order based on the witness-advocate rule. 

This case presents the question of whether a categorical exception to the applicability of Rule 3.7 of the North Carolina Rules of Professional Conduct exists in fee collection cases. Harris & Hilton, P.A. (“Harris & Hilton”) appeals from the trial court’s order disqualifying Nelson G. Harris (“Mr. Harris”) and David N. Hilton (“Mr. Hilton”) from appearing as trial counsel in this action based on their status as necessary witnesses. Because this Court lacks the authority to create a new exception to Rule 3.7, we affirm the trial court’s order.

The story

On 10 June 2015, Harris & Hilton filed the present action in Wake County District Court against James C. Rassette (“Defendant”) to recover attorneys’ fees for legal services the firm had allegedly provided to Defendant prior to that date. The complaint asserted that Harris & Hilton was entitled to recover $16,935.69 in unpaid legal fees. On 13 November 2015, Defendant filed an answer in which he asserted various defenses, including an assertion that no contract had ever existed between the parties.

On 10 June 2016, a pre-trial conference was held before the Honorable Debra S. Sasser. During the conference, Judge Sasser expressed a concern about the fact that Harris & Hilton’s trial attorneys — Mr. Harris and Mr. Hilton — were also listed as witnesses who would testify at trial on behalf of Harris & Hilton. After determining that Mr. Harris and Mr. Hilton were, in fact, necessary witnesses who would be testifying regarding disputed issues such as whether a contract had actually been formed, Judge Sasser entered an order on 20 June 2016 disqualifying the two attorneys from representing Harris & Hilton at trial pursuant to Rule 3.7. On 27 June 2016, Harris & Hilton filed a notice of appeal to this Court.

The issue

Harris & Hilton does not dispute the fact that (1) Mr. Harris and Mr. Hilton will both be necessary witnesses at trial; (2) their testimony will encompass material, disputed issues; and (3) none of the three above-quoted exceptions contained within Rule 3.7 are applicable. Nor does it contest the fact that a literal reading of Rule 3.7 supports the trial court’s ruling. Instead, it asks this Court to adopt a new exception based on its contention that Rule 3.7 should not be applied in fee collection actions to disqualify counsel from both representing their own firm and testifying on its behalf.

 Harris & Hilton argues that permitting a law firm’s attorney to serve both as trial counsel and as a witness in a fee collection case is no different than allowing litigants to represent themselves pro se. It is true that litigants are permitted under North Carolina law to appear pro se — regardless of whether the litigant is an attorney or a layperson. See N.C. Gen. Stat. § 1-11 (2015) (“A party may appear either in person or by attorney in actions or proceedings in which he is interested.”); N.C. Gen. Stat. § 84-4 (2015) (“[I]t shall be unlawful for any person or association of persons, except active members of the Bar . . . to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body . . . except in his own behalf as a party thereto[.]” (emphasis added)). 

However, the present case does not involve the ability of Mr. Harris or Mr. Hilton to represent themselves on a pro se basis. Instead, they seek to represent their law firm — a professional corporation — in a suit against a third party while simultaneously serving as witnesses on their firm’s behalf as to disputed issues of fact. It is well established that an entity such as Harris & Hilton is treated differently under North Carolina law than a pro se litigant. See LexisNexis, Div. of Reed Elsevier, Inc. v. Travishan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (holding that under North Carolina law, a corporation is not permitted to represent itself pro se).

Harris & Hilton also makes a policy argument, contending that the current version of Rule 3.7 is archaic and fails to take into account the disproportionate economic burden on small law firms that are forced to hire outside counsel to litigate fee collection cases. However, in making this argument, Harris & Hilton misunderstands the role of this Court given that it is asking us not to interpret Rule 3.7 but rather to rewrite it — a power that we simply do not possess.


we cannot say that the trial court abused its discretion by applying Rule 3.7 as written as opposed to creating a new exception that neither appears within the Rule itself nor has been recognized by North Carolina’s appellate courts. Accordingly, we affirm the trial court’s disqualification order.

(Mike Frisch)

March 21, 2017 in Clients, Current Affairs, Economics, Law & Business, Law Firms | Permalink | Comments (0)

Monday, March 20, 2017

Penalty Box

An interim suspension was imposed over an attorney's objection by the Hearing Division Tribunal of the Law Society of Upper Canada. has part of the story

Local politician Todd Lever is facing criminal charges after he caused a scene at a hockey game in Timmins on Saturday night and refused to leave until Timmins Police officers forcefully removed him from the McIntyre Arena.

Lever, who is a former city councillor as well as a past candidate for both mayor and Member of Parliament, is being charged with one count of causing a disturbance, and one count of resisting arrest.

The game in question was between the Timmins Rock and the Powassan Voodoos, which was taking place as part of the Hometown Hockey Tour; a highly-promoted public event which had attracted a crowd of more than 1,600 to the arena.

As always, the Timmins Police are releasing few details about their version of events at the game. But in a statement, police spokesperson Marc Depatie described the allegations.

“A man is alleged to have become openly belligerent and began shouting profanities at the players and the referees. At one point the game was halted to have the man’s comportment addressed by means of a game ejection issued by the referee. The man is further alleged to have refused to comply with the ejection,” wrote Depatie. “Despite physically resisting the officers, the man was eventually removed from the arena by the Timmins Police Service.”

Lever, who is a lawyer by profession, has been released from custody and is scheduled to respond to the charges on Jan. 10.

The incident at the arena on Saturday night was well documented by bystanders who took pictures of ever climbing up on the glass surrounding the player benches and penalty boxes, as well as video of his removal by police and security. All of which went up on social media.

Mayor Steve Black was one of many who criticized Lever's behaviour during the game, but later asked people to be compassionate in their comments.

“I know this was not normal for him, more so after seeing it escalate to the level it did,” wrote Black online. “I am not excusing the actions of this weekend as they were disappointing for all involved when the national spotlight was on our community (or even if it wasn't).

"All I am saying is sometimes we don't understand what people are dealing with and we can all be quick to judge, myself included. And it would be best if we support those in our community who may need a little extra support.”

None of the allegations against Lever have been proven in court.

The tribunal 

The motion record before us provides evidence that since November 26, 2016, the Lawyer has:

1. been charged with causing a disturbance and resisting arrest contrary to the Criminal Code of Canada after an incident at a local hockey game;

2. held a press conference at which he revealed he was experiencing a mental health crisis caused in part by his failure to take medication;

3. appeared in court on January 10, 2017 and represented that he acted for two accused, when counsel for those individuals confirmed that the Lawyer had not been so retained;

4. advised the Law Society Investigator that his “mind is racing” and he is having a “live melt down.”  He also told the Investigator that he had been lost for four days while driving on a back road;

5. advised, at an interview with the Law Society, that he is not willing to take medication as part of his treatment and has not taken medication recently prescribed for him; and

6. been involved in a number of confrontations with other lawyers in public and at the courthouse.

His response

The Lawyer states he is aware he needs help. He urged us not to suspend his licence pending the hearing of this motion, but instead to impose practice restrictions including supervision of his practice.


In considering an adjournment request, a panel may take into account, among other things, prejudice to a person, the timing of the request, the requirement for a fair hearing and the public interest (Rule 14 of the Rules of Practice and Procedure). Mr. Lever wishes to respond to the Law Society’s evidence which he only received today. He also seeks time to submit his medical records and evidence of his recent efforts to seek help. Counsel for the Law Society agreed that an adjournment could be granted but submitted that an interim suspension as part of the terms of that adjournment is necessary in the public interest. We agree.

There is evidence before us that the Lawyer’s ability to meet his obligations to the public, to the courts and to his colleagues is being presently affected by his recent behaviour. We have balanced his fair hearing rights and the potential prejudice of proceeding today in the absence of all his records and information, against the public interest in ensuring that licensees are able to meet their obligations. 

Timmonstoday had an update on the criminal charges from this January

Lever represented himself at his first court appearance on the charges, a time usually used to arrive at a mutually acceptable trial date between the Crown and accused.

Lever told the court there are potentially 1,800 witnesses that he can call at trial and that will take a long time.

“Procedurally there will be 1,800 witnesses called and those witness will include every member of the Timmins Rock, every member of the Powassan Voodoos, every attendee of the hockey game were all witnesses at this event,” Lever said.

“The witnesses will include, anyone who captured cell phone video footage, that was posted on Facebook and then taken off,” continued Lever. “The witnesses will also include most of the police officers that worked that night, all the police officers who were involved in my arrest, in front of my father, and the 200 fans that I purchased tickets for.”

“So this is going to be the trial of the century in Timmins,” Lever said. “I do not know how long it is going to take, but I ask the Crown attorney right now to do the right thing and withdraw the charges.”

“That’s the procedure,” concluded Lever. “Now if the Crown wants to elect to proceed to trial that’s fine or they could do the right thing and withdraw the charges completely.”

Crown Attorney Dale Cox responded by saying he was prepared to go to trial.

Talktimmins had details on the hockey-related conduct.

As to what caused him to act the way he did, Lever said it was a few things.

“I was admittedly fired up at the game and was trying to get the team fired up and prodding the Powassan Voodoos,” he wrote. “I was upset with Paul Gagne who had them playing like the Timmins Zombies, not the Timmins Rock.

“I was also more than a little upset that Steve Sullivan and Frank Mahovlich had been honoured, but my uncle, Don Lever, wasn’t even asked to come to the game.”

Mahovlivh’s Toronto Maple Leafs banner was one of the two raised at the McIntyre Arena as the culmination of the Hometown Hockey event.

He went on to say how his uncle was a much better player than Mahovlich, and also had some criticism for broadcaster Ron MacLean who was in Timmins as part of the event.

(Mike Frisch)

March 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Web Site Improvements For Massachusetts Board Of Bar Overseers

The web page of the Massachusetts Board of Bar Overseers has undergone a redesign that looks to me at first glance to be a notable upgrade.

The new page provides easy access to a number of links of interest to the public. 

Bar Counsel Connie Vecchione reports on the highlights of 2016 in Massachusetts discipline and also summarizes related civil decisions and rule changes

Although extensive revisions to the Massachusetts Rules of Professional Conduct went into effect on July 1, 2015, the Supreme Judicial Court at that time deferred action on Rule 3.8, the rule detailing prosecutors’ particular obligations. After further review, that rule was also amended, effective April 1, 2016. See “Prosecution Resolution: Amendments to Mass. R. Prof. C. 3.8 on Special Responsibilities of Prosecutors,” on the BBO website. The revisions bring Rule 3.8 current with many of the changes to ABA Model Rule 3.8 since 1998, when the rules of professional conduct were first adopted in Massachusetts, and address additional issues raised by prosecutors, defense counsel, and other members of the bar during the review process. Among other matters of interest, the amended rule includes new comment 3A, addressing the interaction of a prosecutor’s obligations of disclosure under Rule 3.8 with a prosecutor’s disclosure obligations under substantive law.

Two other disciplinary rules were also amended in 2016, Rules 5.4(a)(4) and 5.5. Rule 5.4(a)(4) allows lawyers or law firms to share a statutory or tribunal-approved fee award or settlement with the qualified legal assistance organization that referred the case if the client consents to the fee sharing and the total fee is reasonable. The rule was revised to omit redundant and unnecessarily burdensome clauses. Rule 5.5 was amended to permit lawyers from foreign countries who are in good standing in their home countries to act as in-house counsel to an employer in Massachusetts.

And my longstanding fondest wish for the web page has been granted. It is now possible to search decisions by year rather than having to scroll through the cases looking for the 2017s!

Thank you, Connie! (Mike Frisch)

March 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)