Tuesday, January 17, 2017

Burger King Sting Draws Misconduct Charges

An attorney who entered into a deferred prosecution agreement has been charged with ethics  violations by the Illinois Administrator.

The alleged course of conduct

1. Starting in or about 2009, and at all further times alleged in this complaint, Respondent worked as an attorney and sports agent at Bryant Legal Group in Chicago.

2. Sometime in 2013, Respondent met Joseph Vaccaro ("Vaccaro"), a financial advisor who worked with professional athletes, and the two men began discussing the possibility of working together on an investment deal.

3. In approximately May 2014, Vaccaro, Respondent and a confidential Federal Bureau of Investigation ("FBI") informant ("the informant") had started discussing ways that they could make money by deceiving their professional athlete clients in an investment deal involving the purchase of 13 Burger King franchises in Virginia. In June 2014, the FBI directed the informant to meet with and secretly record conversations the informant had with Vaccaro and Respondent.

4. On or about June 5, 2014, Respondent flew from Chicago to California and met with Vaccaro and the informant to further discuss working together to fraudulently obtain funds from professional athletes. During this conversation, Vaccaro and Respondent told the informant that they were working on a deal that involved purchasing 13 Burger King franchises and related real estate for $16 million, with an expected total return of 17% on the investment. Respondent, Vaccaro and the informant agreed that Respondent would represent Vaccaro, Respondent’s and the informant’s interests in the deal by handling legal work related to the purchase of the franchises, including completing the due diligence process (reviewing leases, deeds, surveys and corporate and financial records of the franchises), acting as escrowee for the investment and discussing the terms of the investment with potential investors.

5. Throughout the remainer of June 2014, Respondent, Vaccaro, and the informant participated in phone calls, which were recorded by the informant, in which they discussed the details of the investment scheme, including requesting that the informant raise $20 million from investors to purchase the Burger King franchises, in exchange for which the investors would receive 50% ownership in the franchises and related property. Respondent, Vaccaro, and the informant discussed their plan to misrepresent the true purchase price of the Burger King franchises as $37 million to potential investors, rather than tell investors the actual price of $16 million, so as to keep the four million dollar difference between the investment amount of $20 million and the actual purchase price of $16 million for themselves, without the investors’ knowledge. They further discussed that Vaccaro, Respondent, and the informant, without the investors’ knowledge, would receive the remaining 50% ownership of the Burger King franchises without contributing any money to the deal, and would set up LLCs to hide their ownership.

6. On July 22, 2014, Respondent and the informant met at a restaurant in Chicago to further discuss the Burger King franchise deal. At this meeting, Respondent told the informant that the informant should not tell investors the true purchase price of $16 million, or that Respondent, Vaccaro, and the informant would be taking "four million off the top." Respondent further told the informant that the informant should not tell investors that Respondent, Vaccaro and the informant had any ownership interest in the franchises, but rather that he should tell them falsely that a group of ten investors in New York owned the other 50% interest in the franchises.

7. On September 15, 2014, FBI agent Marc Pennebaker ("Pennebaker") contacted Vaccaro by telephone. Pennebaker pretended to be "Mark Baker," a financial advisor for several clients who each wanted to invest two million dollars in the Burger King deal. During the recorded call, Vaccaro told Pennebaker that the purchase price for the Burger King franchises was approximately $37 million, and suggested that Pennebaker contact Respondent for further details.

8. On September 19, 2014, Pennebaker (posing again as Mark Baker) contacted Respondent by phone. During the recorded call, Respondent told Pennebaker that he had negotiated the purchase price of the 13 Burger King franchises from $46 million down to $37 million.

9. Respondent’s statement to Pennebaker about the purported purchase price of the franchises, as described in paragraph eight, above, was false, because the price Vaccaro had negotiated for the Burger King franchises was $16 million, not $46 million or $37 million.

10. At the time Respondent made the statement about the franchises’ value, described in paragraph eight, above, he knew it was false, because he knew that the actual purchase price for the franchises was $16 million.

11. During his September 19, 2014 call with Pennebaker, Respondent told Pennebaker that Vaccaro was raising funds from another investment group who would own the other 50% of the franchises and contribute the remaining $17 million to the deal.

12. Respondent’s statement to Pennebaker about the other 50% ownership in the franchises and those investors’ investment in the deal, as described in paragraph 11, above, was false because Respondent was planning to share in the four million dollars he, Vaccaro and the informant would obtain by deceiving the investors about the franchises’ actual purchase price; Respondent would share the remaining 50% ownership with Vaccaro and the informant; and they would not be investing $17 million (or any amount) in exchange for that interest.

13. Respondent knew, at the time he made the statement about the other 50% ownership in the franchises and those investors’ investment in the deal, as described in paragraph 11, above, that it was false, because he knew that he was planning to share the remaining 50% ownership with Vaccaro and the informant, and they would not be investing $17 million (or any amount) in exchange for that ownership.

14. During his September 19, 2014 call with Pennebaker, Respondent told Pennebaker that that Respondent would hold the investors’ funds in his IOLTA account at the closing of the deal, and that Respondent had no interest in the deal because of his role in handling the legal aspects of the deal and his desire to avoid any conflict of interest.

15. Respondent’s statement to Pennebaker that he had no interest in the deal, described in paragraph 14, above, was false because Respondent planned to share in the four million dollars he, Vaccaro and the informant expected to obtain by deceiving the investors about the purchase price, he planned to share in the remaining 50% ownership with Vaccaro and the informant, and that group was not investing $17 million (or any amount) in exchange for that ownership.

16. Respondent knew at the time he made the statement that he had no interest in the deal, as described in paragraph 14, above, that it was false, because Respondent knew he planned to share in the four million dollars he, Vaccaro and the informant planned to obtain by deceiving the investors about the franchises’ purchase price, he planned to share the remaining 50% ownership with Vaccaro and the informant and that group was not investing $17 million (or any amount) in exchange for that ownership.

17. On October 1, 2014, Respondent, Vaccaro, the informant, and Pennebaker participated in a meeting in San Diego, California. Pennebaker, posing as financial advisor Mark Baker, brought another FBI agent to the meeting, who posed as one of Baker’s clients purportedly looking to invest two million dollars in the Burger King deal. During the meeting, Respondent told the undercover agent, whom Respondent believed was a potential investor, that there were other investors who would be investing money and that those investors would receive the other 50% ownership interest in the franchises.

18. Respondent’s statement that there were other investors who would invest in exchange for the remaining 50% ownership, as described in paragraph 17, above, was false, because Respondent planned to share the remaining 50% ownership with Vaccaro and the informant, and they were not investing any money in exchange for that ownership interest.

19. Respondent knew at the time he made the statement described in paragraph 17, above, that it was false, because he knew he planned to share the remaining 50% ownership with Vaccaro and the informant, and they were not investing any money in exchange for that ownership interest.

20. At the conclusion of the October 1, 2014 meeting, the FBI agents arrested Respondent and Vaccaro.

The San Diego Union Tribune reported on the criminal case.

[Respondent] Porter and Joseph Vaccaro, a New York-based financial adviser to athletes and entertainers, were charged in connection with a plan to buy 13 Burger Kings in Virginia for $16 million. The plan was to raise as much as $37 million from investors and then pocket the extra cash themselves, prosecutors say. It would also give them secret part ownership in the franchises.

They tried to negotiate with a financial adviser for a potential investor, but found out later they were actually speaking with an undercover FBI agent, according to court records.

Vaccaro pleaded guilty in February to conspiracy to commit wire fraud and is set to be sentenced later this month.

(Mike Frisch)

January 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 16, 2017

Usury Unfriendly

An attorney's failure to pay a litigation funder who had advanced funds to his client drew a term suspension of two months from a single justice the Massachusetts Supreme Judicial Court.

The respondent's primary argument before me is that the advances from Global and Excel were loans that were both usurious and illegal, and that the underlying premise of Bar Counsel's petition for discipline is therefore a nullity.

The court assumed that this argument had been preserved and rejected it on the merits

The flaw in the respondent's argument is that even if he is correct in his view that the loans were void, it has no bearing on the heft of Bar Counsel's petition. The majority of the committee and the board found that the respondent's written representations to Excel that his client had not received any prior cash advances was knowingly false and misleading, and that he knowingly failed to notify Excel that he had received the settlement funds. Excel advanced funds to the client on two occasions based on the respondent's representations. Had he not made those representations, Excel would not have advanced any funds to his client. Excel relied on the respondent's representations. The legality of the loans had nothing to do with his intent or his ethical obligations at the time.  His ethical obligations in these circumstances are independent of the validity of the loans. "The most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies...

Similar reasoning applies to the finding that the respondent failed to notify Excel of this receipt of the settlement funds, and his failure to follow his client's written directions. The majority of the committee discredited the respondent's explanations, and found that his conduct violated rules 1.2(a), 1.3, and 1.15 (c).

...the validity of.the loans has no bearing on the fact that the respondent promised to place all settlement monies in escrow and seek court intervention to determine the rights of Excel in the event of a dispute. His failure to honor that promise is a violation of his ethical obligations, even if there were no fiduciary relationship. The findings in this regard also support the further finding in aggravation that the respondent lacked insight into his ethical obligations.

Sanction

 Taking into consideration the question about the existence of a fiduciary relationship, there were misrepresentations made as to the client's non-receipt of prior loans taken against the expected settlement to the detriment of a third party, and there were promises made to the effect, that the respondent would place the settlement proceeds in escrow and seek court intervention to determine the rights of Excel in the event of a dispute. The respondent's misconduct, as well as his lack of insight into his ethical obligations, warrant a term suspension.

An order of reinstatement was entered by Justice Gaziano. (Mike Frisch)

January 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 15, 2017

Tulane Law School needs fall-semester visitor in Professional Responsibility and Criminal Law

My school Tulane, per our Vice Dean Onnig Dombalagian, has asked me to post this regarding the fall of 2017:

Tulane Law School invites applications for a one-semester visiting position in the Fall of 2017. Our specific needs for the Fall 2017 semester include basic income tax and corporate tax, criminal law, and professional responsibility. Applicants must possess a J.D. from an ABA-accredited law school, strong academic credentials, and at least three years of relevant law-related experience; prior teaching experience is strongly preferred. Applicants should submit a letter of interest, CV, and the names and contact information of three references through Interfolio at https://apply.interfolio.com/40060. For additional information, please contact Onnig Dombalagian at odombala@tulane.edu. Tulane University is an equal employment opportunity/affirmative action employer committed to excellence through diversity. All eligible candidates are invited to apply.

[Alan Childress]

January 15, 2017 in Hiring, Teaching & Curriculum | Permalink | Comments (0)

Book 'Em, Danno: Prosecutor's Book Deal Draws Reprimand

A public reprimand has been imposed by the Indiana Supreme Court

At all relevant times, Respondent was the elected prosecutor for Floyd County. The charges in this disciplinary action trace their genesis to the prosecution of David Camm, a former police officer charged with murdering his wife and two minor children. Camm twice was convicted, but in each instance his convictions were reversed on appeal. Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004), trans. denied; Camm v. State, 908 N.E.2d 215 (Ind. 2009) (“Camm II”). Camm ultimately was acquitted following a third trial in 2013. Respondent prosecuted the second trial, and he initially continued to represent the State during proceedings in advance of the third trial until his removal from the case due to the conflict of interest described below.

Days after the jury in the second trial returned a guilty verdict, Respondent – with the intent to write and publish a book about the Camm case – entered into an agreement with “Literary Agent.” Thereafter, Respondent continued to represent the State in post-trial proceedings in the trial court and assisted the Attorney General during appellate proceedings in Camm II. In early June 2009, while Camm II was pending before this Court, Respondent entered a publication agreement with “Publisher.” After we issued our decision reversing Camm’s convictions and remanding for a third trial, Respondent wrote to Literary Agent, expressing his belief that “this is now a bigger story” and asking Literary Agent to seek a “pushed back time frame” for publication and “to push for something more out of the contract.” However, Publisher instead elected to terminate the book contract.

Following the conclusion of appellate proceedings in Camm II, in December 2009 Respondent refiled murder charges against Camm, and Camm petitioned for appointment of a special prosecutor. In January 2011, the trial court denied Camm’s request for a special prosecutor. Camm pursued an interlocutory appeal, and in November 2011 the Court of Appeals reversed the trial court and ordered Respondent’s removal from the case. Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011), trans. denied.

Meanwhile, the Commission began investigating a disciplinary grievance filed against Respondent by Camm’s counsel. Respondent retained private counsel to represent him during this investigation and later submitted six payment vouchers to the Floyd County Auditor (with his counsel’s invoices attached) seeking reimbursement of his legal fees.

The prosecutor was paid an advance of $1,700. 

Misconduct

we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.

Indiana Rule 1.8(d) provides

Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Count 2 involved alleged false statements in seeking reimbursement.

Sanction

The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand. 

The Indiana Court of Appeals reversed the denial of Camm's motion to appoint a special prosecutor in November 2011.

The trial court held that the cancellation of the [book] contract weighs against finding an actual conflict of interest, and, likewise, the State argues that the cancellation of the contract precludes this court from finding that an actual conflict of interest exists. Notwithstanding the State’s contention, this is a bell that cannot be unrung. Henderson signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the State of Indiana in this trial.

Were we to hold otherwise, there would be more chapters to this book. As a result of having signed the literary contract, Henderson has provided Camm with a defense strategy that he would not otherwise have. Camm may now contend that Henderson’s literary contract, albeit cancelled, and his commitment to write a book influenced his decision to prosecute Camm for a third time. Henderson has made himself an issue at trial, and thus cannot continue to serve as prosecutor in this case.

Our decision today does not rest solely on whether or not there was a contract in place. Henderson has established a personal agenda to both write this book and ensure that Camm is prosecuted. Henderson’s own words are evidence of that agenda. In his email to his literary agent following reversal, Henderson stated: “I am committed to writing the book as is [co-author] Damon. A tremendous amount of work has been done to this point. It’s a great story that needs to be told. . . . In addition, as you and Damon have discussed, this is now a bigger story.” Appellant’s Ex. F at G. And, in a statement to the media, Henderson wrote that he was “more convinced now than ever that when this matter is completed, the unedited version of events needs to be told.” Appellant’s Ex. J at K. 

As prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor.

Wikipedia has information about the Camm criminal case. Mike Frisch)

January 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 14, 2017

A Pain In The Hand

The Louisiana Attorney Disciplinary Board has recommended that an attorney be permanently disbarred.

Beyond the misconduct is the story told of the attorney's inadequate efforts to respond to the bar charges .

She was able to set aside a default by motion but appeared for a hearing with husband and infant child in tow. The first day of the hearing went forward.

At the resumed hearing, counsel appeared but the accused attorney did not. Counsel represented that he had received a series of text messages that morning from the attorney along with photographs of "what appeared to be a human hand that was purportedly injured in some way" and indicating that she was seeking urgent care.

In response to questioning by the committee chair, [retained counsel] Mr. Ciolino asserted that he had requested materials and had set up appointments with Respondent in order to prepare for the hearing, to no avail. Because she had not appeared, and he had been otherwise unable to communicate with the Respondent, Mr. Ciolino felt as though he could do nothing further to help her

Motion to continue denied. Motion to withdraw as counsel granted. Default entered.

On the merits

The Board agrees with the committee’s determination that the baseline sanction in this matter is disbarment. Respondent violated duties to her clients by failing to act with diligence, failing to properly withdraw from representation, failing to properly communicate with clients, making false and misleading statements to her clients, failing to return client files and unearned fees, and converting client funds. The record further supports that she violated duties to the public, the legal system and the profession by engaging in the unauthorized practice of law, making false assertions to Judge Zibilich regarding the details of her [interim] suspension, engaging in criminal conduct through her admittedly fraudulent attempt to obtain prescription medication, and failing to cooperate in the disciplinary proceedings. As found by the committee, the record supports that Respondent engaged in a disturbing pattern of intentional misconduct. Moreover, the testimony of Respondent’s clients, particularly Ms. Cheramie, established that Respondent inflicted actual harm that was significant. The committee found Respondent’s disregard of the Rules of Professional Conduct to be flagrant and her failure to cooperate to be an unwarranted source of delay and waste of resources...

One striking factor in the instant matter that deserves note is Respondent’s lack of truthfulness. Her veracity was called into question on numerous occasions. The committee repeatedly pointed out that Respondent’s testimony was not to be believed and that her statements during the proceedings were disingenuous. Further, the record establishes that Respondent misled Ms. LaGarde as to her employment status with the Chouest Law Firm. She misled Ms. Cheramie, falsely asserting that she had filed pleadings in her parents’ succession matters when she had not. She misled Judge Zibilich when she told him that she had only recently learned of her interim suspension, which had been issued some six months prior. When considering these actions, along with Respondent’s criminal conduct, the multiple instances of conversion of client funds and her unauthorized practice, it is clear that permanent disbarment is warranted.

The board found no mitigating factors. (Mike Frisch)

January 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 13, 2017

Tortured Logic

An appeal was dismissed by the Hearing Division Tribunal of the Law Society of Upper Canada in a matter involving a California disbarment

Mr. Sumner was called to the California Bar in 2006. The following year, the appellant was arrested and charged with battery and vandalism after a complaint by his roommate. In March 2008, the charges were dismissed. As a condition of the dismissal, he made a $300 donation to a women’s shelter at the request of the District Attorney’s office. In October 2009, with the assistance of counsel, the appellant petitioned for a Declaration of Factual Innocence in relation to the dismissed charge. John Kochis, the Deputy Chief District Attorney, handled the matter for the State. The petition was initially opposed by the local police department, but proceeded unopposed after the appellant entered into a mutual release in January 2010 of any claims with the original complainant.

Beginning in 2010, the appellant concluded that he had been treated improperly by his counsel, the police department, and Mr. Kochis. He accused all of them of lying, and asserted that Mr. Kochis had coerced and tortured him in taking the actions described above. Mr. Sumner began sending e-mails and voicemails to various individuals, most prominently Mr. Kochis, but ultimately including representatives of the California Bar and the Law Society of Upper Canada. He has sent many communications threatening violence in graphic and often vulgar terms. In essence, his substantive goal seems to be to arrest Mr. Kochis on the basis that the latter has committed various criminal offences, and to assert that persons who do not assist the appellant in this endeavour will themselves be committing criminal offences. Most of the communications threaten deadly force if necessary. One of the threats is made against Mr. Kochis’ wife. In another communication, the appellant requests the assistance of the Hells Angels.

In February 2012, the appellant was charged in California with 27 counts of threatening and similar offences. There is an outstanding warrant for the appellant’s arrest in that state.

In December 2014, the appellant was disbarred in California.

Mr. Sumner was called to the Ontario Bar on January 27, 2012. The prior month, he had self-reported that he was the subject of disciplinary proceedings in California. The Law Society commenced an investigation, and a conduct application is before the Hearing Division. In the meantime, the Law Society brought the motion for an interlocutory suspension pending the result in the conduct application.

Here, the tribunal denied exclusion of evidence that the attorney contended was the product of "torture" and "extortion" and found that interlocutory suspension was appropriate

In argument before us, Mr. Sumner based his appeal on the “but for” principle. If not for what he called the unlawful actions of Mr. Kochis, he would not have engaged in the conduct that is before us. We have considerable doubt that the “but for” test will ever justify what is alleged to be conduct unbecoming by a licensee, but it certainly has no such impact in this case. Vigilante justice has no place in a legal system founded on the rule of law and our shared obligation to remedy wrongs through proper institutional processes.

Seen in this light, there is little room for debate that the Hearing Division acted reasonably in reaching the conclusion that it did. There is a significant risk that public confidence in the legal profession and the public interest in the administration of justice would be harmed if a licensee were permitted to continue practising while engaging in the threatening and harassing course of conduct toward various institutional and individual members of the public that the appellant displayed here.

Abovethelaw had reported on the proceedings. The Canadian blog Legal Feeds also covered the case. (Mike Frisch)

January 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Conditions Removed

A recent decision of the Hearing Division Tribunal of the Upper Canada Law Society strikes an unusual note for a discipline case

This is one of the rare cases that focuses on determination and courage, the support of family, colleagues and physicians and things that have gone well.

In 2012 and as further described below, a hearing panel concluded that Mr. Morgan should be permitted to return to practice, after having been incapacitated by reason of mental illness, on the condition that he only practise as an employee for the first two years after his return to practice (the “employment requirement”): 2013 ONLSHP 44 (CanLII).

In this application, Mr. Morgan and the Law Society jointly ask that we end the employment requirement. At the hearing we determined that the employment requirement has created unintended consequences and we have a high degree of assurance that it is no longer required in the public interest.

The attorney has practiced with restrictions that are now no longer necessary

In addition to the submissions of counsel for the parties, we heard from Mr. Morgan himself. Mr. Morgan described his progress and his hopes for a productive working life for the benefit of society, his family and himself. It is clear that Mr. Morgan and his family have faced significant challenges due to his health. They would undoubtedly have much preferred not to have had to do so. But they have faced those challenges successfully; have endured and may even have grown. Determination, courage and commitment have been demonstrated by Mr. Morgan and his family. They have reason to be proud. It would be naïve to think there will be no further challenges to overcome and it is clear from the material before us that there is no such naivety on anyone’s part. But there is optimism and continued determination to address challenges as they arise.

 Mr. Morgan also took care to recognize the support that he has received from his counsel, Nadia Liva, who has acted for him before the Tribunal and helped him since 2009. Significantly, Mr. Morgan also took care to recognize the compassion, respect and assistance that he has enjoyed from Danielle Smith who has been Discipline Counsel with carriage of these matters since 2008. Mr. Morgan observed that he has been happily surprised to discover that the Law Society has not acted as an uncaring adversary but rather in a thoughtful, sympathetic and measured manner, in the public interest.

As observed at the outset, most cases before the Tribunal involve difficult situations and, not uncommonly, tragedy. In this case, a very difficult situation has improved as a result of the good efforts of many people. Mr. Morgan noted in his submissions, and we have come to better realize through the good work of leaders in the profession, that issues of mental health are common and yet are often unseen and poorly addressed, if at all. As a profession, we know that we must do better. But we should also recognize when there has been success. This is one such case. 

The opinion is linked here . (Mike Frisch)

January 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Town Court Justice Admonished For Facebook Post

A non-attorney town court justice has been admonished for misconduct by the New York Commission on Judicial Conduct

from March 13, 2016 to March 28, 2016, with respect to People v David VanArnam, a matter then pending in the Canton Town Court, St. Lawrence County, respondent made public comments on her Facebook account about the pending proceeding and failed to delete public comments about the pending proceeding made by a Morristown Town Court clerk...

In March 2016, respondent maintained a Facebook account under the name "Lisa Brown Whitmarsh." Respondent had approximately 352 Facebook "friends." Respondent's Facebook account privacy settings were set to "Public," meaning that any internet user, with or without a Facebook account, could view content posted on her Facebook page.

On March 13, 2016, respondent posted a comment to her publicly viewable Facebook account, as shown on Exhibit A to the Agreed Statement of Facts, criticizing the investigation and prosecution of Mr. VanArnam. Respondent commented, inter alia, that she felt "disgust for a select few," that Mr. VanArnam had been charged with a felony rather than a misdemeanor because of a "personal vendetta," that the investigation was the product of "CORRUPTION" caused by "personal friends calling inpersonal favors," and that Mr. VanArnam had "[a]bsolutely" no criminal intent.

Several friends "liked" the post.

clicking the "like" button is a way for Facebook users to indicate that they "enjoy" a post.

But someone else did not enjoy it.

On March 23, 2016, a local news outlet posted an article on its website reporting on respondent's Facebook comments concerning the VanArnam case and re-printed respondent's Facebook post of March 13, 2016, in its entirety.

On March 28, 2016, respondent removed all postings concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney's office.

She agreed to recusal and to refrain from further posts on judicial matters.

The commission

Comments posted on Facebook are clearly public, regardless of whether they are intended to  be viewable by anyone with an internet connection or by a more limited audience of the user's Face book "friends." Even such a "limited" audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. 1 Accordingly, a judge who uses Facebook or any other online social network "should ... recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly" (Adv Op 08-176).

The agreed statement of facts is linked here. (Mike Frisch)

January 13, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, January 12, 2017

Bartering Away Law License

The web page of the Tennessee Board on Professional Responsibility reports a three-year suspension of an attorney who "provided legal services in exchange for narcotics..."

The Tennessee Supreme Courrt imposed the suspension with credit for time served on an interim suspension based on the underlying criminal conviction.

Reinstatement is subject to a number of conditions.

Daily News Journal had a story about the charges and his judicial candidacy. (Mike Frisch)

January 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Commitment To Sobriety Influences Bar Sanction

A retroactive 30-month suspension has been imposed by the South Carolina Supreme Court

In 2013, respondent was arrested and charged with driving under the influence ("DUI"), first offense; failure to give or giving improper signal; and hit and run involving property damage. He pleaded guilty to DUI and improper turn; the remaining charge was dismissed. Respondent paid a fine.

Approximately one year later, respondent was arrested and charged with use of a firearm while under the influence of alcohol or drugs; disorderly conduct; and damaging/tampering with a vehicle. He pleaded guilty to unlawful carrying of a pistol and again paid a fine. Shortly after his arrest for the second incident, this Court placed respondent on interim suspension. See In re McMaster, 407 S.C. 213, 755 S.E.2d 107 (2014).

Post-suspension events played a significant role in the disposition

In April 2016, the Panel conducted an evidentiary hearing where respondent pledged his continued commitment to sobriety, rehabilitation, and the profession. The Panel's report noted aggravating and mitigating factors it considered, and recommended sanctions for respondent. As to aggravating factors, the Panel noted respondent engaged in illegal conduct. As to mitigating factors, the Panel noted: the absence of a prior disciplinary record; respondent's "full and free disclosure and cooperative attitude" in the disciplinary proceedings; and respondent's depression and dependency on alcohol. The Panel then recommended respondent: (1) be suspended from the practice of law for a period of thirty months, retroactive to the commencement of his interim suspension—March 4, 2014; (2) pay the costs of the disciplinary proceedings; (3) complete the Legal Ethics and Practice Program Ethics School prior to reinstatement; (4) enter into another two year contract with Lawyers Helping Lawyers; (5) continue treatment with his psychiatrist for a period of two years; and (6) continue treatment with his medical provider for his depression and anxiety for a period of two years.

The court accepted the panel recommendations. (Mike Frisch)

January 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Colorado Bar Discipline For Domestic Violence

A domestic violence conviction and an effort to persuade the victim to "soften" her testimony drew a 30-month suspension from the Colorado Hearing Board.

Respondent graduated from the University of Nebraska in 1997 with a degree in marketing and finance. He attended the university on an athletic scholarship for long distance running and track. While there, Respondent was the captain of the cross-country team and was nationally ranked as a long-distance runner. After he graduated, Respondent trained for the 2000 Olympic trials, until he had a career-ending injury.

Ms. Olson and Respondent were married in 1997. He described their roles within their marriage as very traditional—“1950s Americana”—as he worked full-time and she stayed home to raise their children. Respondent testified that he and Ms. Olson both came from difficult backgrounds and that they wanted to “form the roots of a new family tree.” During their eighteen-year marriage, the Olsons had three children—two daughters and one son.

From 1997 to 2002, Respondent worked full-time as an adjuster for State Farm Insurance Company. During this period, he also attended the University of Nebraska College of Law, where he served as the executive editor of the Nebraska Law Review.

In 2006, Respondent and his family moved to Colorado, where he became licensed to practice law. He began his legal career in private practice, eventually working at a large firm. He was so fixated on becoming a partner that he missed two Christmases with his family and gained sixty pounds. He realizes now that his lifestyle then was fundamentally flawed, as he did not appreciate the notion of equity within the family. Around 2013, Respondent left private practice and became general counsel for Colorado School Districts Self Insurance Pool (“CSDSIP”),  where he earns about $125,000.00 a year. Respondent describes himself as passionate about school law and public education. At present, Ms. Olson is a kindergarten teacher and earns approximately $30,000.00 a year.

In 2013, the Olsons separated. Respondent moved to an apartment in Denver while Ms. Olson remained in the family home in Broomfield. In June 2014, Respondent moved back into the family home to work on their marriage.

The incident that led to discipline

That day, Ms. Olson had discovered Respondent’s relationship with another woman during their period of separation, and she was very upset. She called Respondent to discuss what she had found, but Respondent did not want to talk. He recalled that during this conversation, Ms. Olson told him that she could not “do it anymore” and, as he described, sounded as though she were in a frenzied emotional state.

They offered differing versions of what ensued, leading to this finding

Respondent admitted that he pushed Ms. Olson with enough force to knock her off the bed and even gave himself credit for winning the first round of the “shoving match” when describing his conduct to [Officer] Lopez. Respondent also conceded that he picked Ms. Olson up off the floor from her fetal position and tried to physically remove her from the room by dragging or carrying her toward the door, despite her resistance and pleas to stop. Ms. Olson credibly testified that she experienced pain, felt force, and was fearful for her safety. Ms. Olson indicated on her witness statement and corresponding diagram—made the same evening as the event—that Respondent struck her on four places of her body. Lopez likewise observed redness on her face, even though he determined that Respondent had not hit her in the face. 

The hearing board also accepted the ex-wife's version of attempts to influence her testimony in the discipline case

We have already rejected Respondent’s assertion that Ms. Olson fabricated her allegations of witness tampering. Instead, we find that Respondent intentionally attempted to induce Ms. Olson to ignore the People’s subpoena and to testify falsely by “softening” her description of the events of June 18, 2014. Respondent knew that disciplinary charges were pending against him and that Ms. Olson had spoken with the People about being a witness at his hearing. Given these facts, we find that he intended to induce her not to testify at his hearing because he was worried about the sanction and his ability to continue supporting his children.

As to sanction

Respondent committed the reprehensible acts of inflicting violence upon his wife and then attempting to persuade her not to testify truthfully or to avoid service of a subpoena. His actions threatened the truth-seeking function of our disciplinary system and harmed his family. Thus, he should answer for his misconduct by serving a substantial sanction. Because his witness tampering occurred while he was wrestling with a contentious and toxic divorce, rather than in the course of representing a client, and stands as an aberration when viewed in light of his otherwise good record and reputation within the legal community, we determine that a thirty-month suspension is the fitting sanction.

In an unrelated domestic violence matter, a three-month suspension was imposed on another Colorado attorney

In September 2015, Qin physically assaulted his wife during an argument. While his wife was holding their son, who was almost two years old, Qin lost his temper and grabbed his wife’s pajama top. The garment ripped, leaving a gaping hole. He also tore out some of her hair. Qin’s wife ran upstairs to the bathroom, where she locked the door and called the police. Qin followed her and opened the bathroom door with a knife. At the time, the couple’s other two children, aged four and six, were also at home.

As to the sanction

Here, the five mitigating factors in this case preponderate against the two aggravating considerations. We are swayed by Respondent’s remorse, his cooperation in this disciplinary proceeding, and, to a far lesser extent, the personal and emotional problems that contributed to his lack of self-control and poor judgment. But we also take into account the somewhat violent nature of the assault: in our estimation, to tear out pieces of Crawford’s hair and rip a large hole in the front of her pajamas required a significant amount of force, which suggests that Respondent acted—at best—with a callous disregard for his wife’s welfare. To apply that force while Crawford held their son in her arms implies, too, an indifference to whether his attack might physically or emotionally injure the child. Considering the seriousness of Respondent’s misconduct, and weighing the severity of that offense against the nature of aggravation and mitigation, we find that Respondent should be suspended for a period of three months.

(Mike Frisch)

January 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 11, 2017

Judge Suspended For Misconduct

The Missouri Supreme Court has suspended a judge for six months without pay for misconduct relating to her dealings with the public defender

Having reviewed the evidence before the Commission, it is clear that Respondent intentionally delayed the appointment of public defenders to subvert the rights of indigent defendants. She did this, ostensibly, because of a disagreement over whether the public defender’s office could enter an appearance for an indigent defendant in probation violation cases.

Interfering with the administration of justice, as in this case, undermines the “public confidence in the independence, integrity, and impartiality of the judiciary,” to say nothing of the lack of promptness, efficiency or fairness to a defendant’s right to be heard. What is more, the impact of Respondent’s misconduct operated to prejudice indigent defendants who were confined and awaiting appointment of counsel. Their right to be heard according to law was delayed. Finally, Respondent’s threats of filing disciplinary complaints against counsel, and ultimately filing a disciplinary complaint in retaliation for a judicial complaint filed by the director of the public defender’s office, violates the Code of Judicial Conduct and constitutes misconduct. Even if it was not in retaliation, as Respondent claimed, it was inconsistent with the propriety with which a judge should act.

Judge Wilson concurred

I write to emphasize the fact that Respondent was correct (in part) in her reading of this statute does nothing to excuse or mitigate the seriousness of her misconduct. Judges are neutral arbiters of the disputes that come before them. Here, time after time, Respondent let her view of the Public Defender’s authority – which authority was invoked by the defendant and never questioned by the state – outweigh her judicial obligation to maintain both the fact and the appearance of objectivity and impartiality in adjudicating the cases before her. And Respondent’s misconduct did not stop there. In the course of her dispute with the Public Defender, Respondent purposely and repeatedly sacrificed the rights of some defendants in probation violation cases to the statutory interpretation point she felt compelled to make to the Public Defender generally. Time and again, defendants who would have been entitled to representation by the Public Defender were denied that representation for some period because Respondent refused to make a timely determination of whether, under the circumstances, counsel was necessary to protect each defendant’s due process rights.

It is difficult to imagine a reasonable justification for not taking up and deciding this question during a defendant’s first appearance before the court, particularly if the defendant is incarcerated. Of course, an isolated failure to do so would not raise a question of judicial misconduct for the Commission and this Court, but would simply be a matter for ordinary review – and, if error, correction – by a higher court. Respondent’s conduct, however, was no isolated incident.

(Mike Frisch)

January 11, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Dismissal Of Claims Against Medical Center Affirmed

The New York Appellate Division for the First Judicial Department affirmed dismissal of claims brought against Beth Israel Medical Center in connection with its care of copper heiress Huguette Clark.

The court properly dismissed the breach of fiduciary duty claims against Beth Israel. No facts were stated from which the factfinder could conclude that decedent relied upon the hospital for anything other than medical advice, care, and treatment.

The breach of fiduciary duty claims were not tolled by the open repudiation doctrine, because a fiduciary relationship between decedent and either Jack Rudick or Beth Israel was not stated, and this toll does not apply to claims for money damages (see Stern v Morgan Stanley Smith Barney, 129 AD3d 619 [1st Dept 2015]). The toll provided in CPLR 208 is similarly unavailing because the petition did not allege that decedent was insane and the record shows that she had an attorney and an accountant with whom she regularly communicated to protect her legal rights (see McCarthy v Volkswagen of Am., 55 NY2d 543, 548 [1982]).

By coincidence, I am reading Empty Mansions, a great read that tells the family story.

From the Amazon Prime review

 When Pulitzer Prize-winning journalist Bill Dedman noticed in 2009 a grand home for sale, unoccupied for nearly sixty years, he stumbled through a surprising portal into American history. Empty Mansions is a rich mystery of wealth and loss, connecting the Gilded Age opulence of the nineteenth century with a twenty-first-century battle over a $300 million inheritance. At its heart is a reclusive heiress named Huguette Clark, a woman so secretive that, at the time of her death at age 104, no new photograph of her had been seen in decades. Though she owned palatial homes in California, New York, and Connecticut, why had she lived for twenty years in a simple hospital room, despite being in excellent health? Why were her valuables being sold off? Was she in control of her fortune, or controlled by those managing her money?
 
Dedman has collaborated with Huguette Clark's cousin, Paul Clark Newell, Jr., one of the few relatives to have frequent conversations with her. Dedman and Newell tell a fairy tale in reverse: the bright, talented daughter, born into a family of extreme wealth and privilege, who secrets herself away from the outside world.
 
Huguette was the daughter of self-made copper industrialist W. A. Clark, nearly as rich as Rockefeller in his day, a controversial senator, railroad builder, and founder of Las Vegas. She grew up in the largest house in New York City, a remarkable dwelling with 121 rooms for a family of four. She owned paintings by Degas and Renoir, a world-renowned Stradivarius violin, a vast collection of antique dolls. But wanting more than treasures, she devoted her wealth to buying gifts for friends and strangers alike, to quietly pursuing her own work as an artist, and to guarding the privacy she valued above all else.
 
The Clark family story spans nearly all of American history in three generations, from a log cabin in Pennsylvania to mining camps in the Montana gold rush, from backdoor politics in Washington to a distress call from an elegant Fifth Avenue apartment. The same Huguette who was touched by the terror attacks of 9/11 held a ticket nine decades earlier for a first-class stateroom on the second voyage of the Titanic.
 
Empty Mansions reveals a complex portrait of the mysterious Huguette and her intimate circle. We meet her extravagant father, her publicity-shy mother, her star-crossed sister, her French boyfriend, her nurse who received more than $30 million in gifts, and the relatives fighting to inherit Huguette's copper fortune. Richly illustrated with more than seventy photographs, Empty Mansions is an enthralling story of an eccentric of the highest order, a last jewel of the Gilded Age who lived life on her own terms.

Ms. Clark had spent many years residing at Beth Israel (hence the empty mansions) prior to her death. (Mike Frisch)

January 11, 2017 | Permalink | Comments (0)

The Look Of Crack

The Massachusetts Supreme Judicial Court reversed a drug distribution conviction because "negative profiling" evidence was admitted

At trial in this case, the Commonwealth attempted to prove that since the defendant did not match the physical characteristics of a drug addict, he must be a drug dealer. On appeal, the Commonwealth maintains that this use of profiling evidence was permissible because it did not explicitly compare the defendant to the profile of a drug dealer. Contrary to the Commonwealth's assertion, however, such so-called negative profiling evidence -- where the goal is to demonstrate that a person does not fit a particular profile -- falls squarely within the scope of the profiling evidence we have long prohibited...

Given the well-established proscription against the use of profiling evidence, the admission of [Sergeant Detective and expert William] Feeney's testimony concerning the physical characteristics of crack cocaine addicts was error. Moreover, as we stated in Day, 409 Mass. at 723, the use of such evidence was "inherently prejudicial" to the defendant...

We may assume that Feeney's testimony was inherently prejudicial to the defendant. The impact of the testimony was magnified by the prosecutor's closing argument, in which the profiling testimony was presented as a key factor in demonstrating that the defendant intended to distribute the cocaine. The first thing the jury heard as to why the defendant did not possess the cocaine for personal use but intended to distribute it was that his physical appearance showed that he was not a drug addict. The prosecutor stated, "How do you know he possessed [the cocaine] with the intent to distribute it, does he look like a drug addict?" The prosecutor then continued to emphasize the profiling evidence, contrasting the defendant's size, strength, and physical appearance, with the "drawn out" appearance of a typical "skinny" crack cocaine addict with "rotted teeth."

The deceptively intuitive appeal of this entreaty provided it with a "superficial plausibility . . . [that] masked its profound flaws." Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011), quoting Commonwealth v. Ferreira, 77 Mass. App. Ct. 675, 685 n.6 (2010) (Milkey, J., dissenting). While the prosecutor went on to argue the impact of other items of evidence, the simplest and most direct evidence, from the standpoint of the jury, sat a few feet away from them at the defense table. We think it unlikely that the profiling evidence was only of minor significance to the jury.

The Commonwealth's remaining evidence, while clearly sufficient to support the conviction, was not overwhelming.

(Mike Frisch)

January 11, 2017 | Permalink | Comments (0)

Tuesday, January 10, 2017

No Blanket Rule On Ethics Of Failure To Pay Litigation Expenses

A rather unusual order from the Louisiana Supreme Court

Based on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re: Bilbe, 02-1740 (La. 2/7/03), 841 So. 2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice. Accordingly, pursuant to Supreme Court Rule XIX, § 11(B), this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation and to institute formal charges, if appropriate.

From the court's 2003 Bilbe decision involving failure to pay a court reporter

The committee found no violation of the Rules of Professional Conduct based on these factual findings, opining “that the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice even though Respondent has no justification for not paying the invoice.   The Committee believes that to hold otherwise, the Board would become a collection agency for creditors of attorneys.”

...the board noted that it is a matter of first impression in Louisiana whether a lawyer's failure to pay a court reporter's bill constitutes conduct prejudicial to the administration of justice.   Nevertheless, in the  absence of “specific jurisprudence” to support a finding of misconduct,   the board agreed that respondent's failure to pay a court reporter does not constitute a violation of Rule 8.4(d), and recommended that Count IV be dismissed...

Finally, the hearing committee and disciplinary board have recommended the dismissal of the charge involving the unpaid invoice for court reporting services.   While we do not condone respondent's failure to pay litigation-related expenses she has incurred, we tend to agree with the board that such conduct does not generally constitute a violation of the Rules of Professional Conduct.   Furthermore, the ODC has not filed an objection in this court to the board's recommendation.   Therefore, we will dismiss Count IV of the formal charges.

The issue in Bilbe had not been fully considered in light of other misconduct that drew a three-year suspension, (Mike Frisch)

January 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Craven County

The North Carolina Supreme Court publicly reprimanded a judge who had failed to disclose outside income and engaged in misconduct in a matter where he initiated criminal charges against a tenant to whom he had rented

On 3 May 2013, Respondent sought criminal charges against the former tenant and a criminal summons was issued for injury to real property. On the criminal summons, Respondent is listed as the complainant and his address is listed as 300 Broad St., New Bern, NC 28560, the address of the Craven County Courthouse.

The former tenant’s criminal charge, Craven County File No. 13CR51808, was first set for 30 May 2013. The criminal case was continued a number of times and remained pending for over a year for various reasons. The former tenant had difficulty finding a defense attorney to represent him when Respondent was the prosecuting witness. Eventually, the former tenant applied for a court-appointed attorney and an Assistant Public Defender from outside Respondent’s judicial district was assigned by the Office of Indigent Defense Services.

In an effort to bring all the parties together to settle the criminal matter, the Assistant District Attorney (ADA) assigned to prosecute the former tenant’s charge calendared the matter in Respondent’s courtroom. Respondent did not set the case on his own calendar or exercise undue judicial authority to have the former tenant’s charge heard in his court.

On 25 April 2014, Respondent presided over Criminal District Court in Craven County, and Craven County File No. 13CR51808 appeared on line number 28 of that court calendar, with Respondent’s name listed as the complainant.

During the 25 April 2014 court session, Respondent provided the ADA with photographs of the damaged rental property, which were also shared with the Assistant Public Defender, who then consulted with the former tenant. The parties reached an agreement that Respondent and the ADA would not pursue the criminal charge against the former tenant if he paid Respondent restitution for the property damages. This is a common means of resolution in similar criminal cases in Craven County. All parties agreed on the amount of restitution and the case was continued to allow the former tenant time to raise the necessary funds to pay Respondent.

On 18 July 2014, the ADA again scheduled Craven County File No. 13CR51808 on Respondent’s docket, and the case appeared on line number 18 of the court calendar, with Respondent’s name listed as the complainant. During this court session, Respondent recessed court and was joined in an office behind the courtroom by the ADA and the former tenant. The Assistant Public Defender representing the former tenant was not present as per an agreement with the ADA. During this meeting, Respondent left the office temporarily, and when he returned, the ADA had received $3000 in cash as restitution from the former tenant, and the ADA handed it to Respondent. After restitution was made to Respondent, the ADA filled out a form dismissing the criminal charge against the former tenant. There is no dispute that Respondent was entitled to the restitution from the former tenant.

The court

As the presiding judge in criminal district court on 25 April 2014 and 18 July 2014, it was incumbent upon Respondent to independently evaluate the propriety of his personal criminal matter being calendared before him as presiding judge, and further, to recognize the obvious conflict of interest and the potential for public concern as to his influence over the outcome of a matter in which he had a personal financial interest. As a criminal complainant, it was also incumbent upon Respondent to maintain a clear separation of his personal life from his judicial duties, including ensuring that his personal address rather than the Craven County Courthouse address was indicated as his address on the criminal summons, and settling and accepting cash restitution at a time when he was not also exercising his judicial duties as presiding judge.

The court cited the judge's disclosure compliance, many positive attributes and noted that he got the message on the intersection between his role as landlord and judge

Respondent has already shown initiative to comply with the Code by recusing himself when the former tenant obtained a new unrelated criminal charge which was scheduled before Respondent. When Respondent realized the matter was on his calendar, he properly recused himself.

(Mike Frisch)

January 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Testimony In Bar Discipline Case Absolutely Privileged

The dismissal of a defamation action brought as a result of statements made in a disciplinary proceeding was affirmed by the North Carolina Court of Appeals.

Lena Watts-Robinson appeals from an order dismissing her defamation action against Brandon Shelton, opposing counsel in an employment discrimination case (the “Billips action”). In her complaint, Watts-Robinson alleged that Shelton defamed her while testifying before the Disciplinary Hearing Commission of the North Carolina State Bar (“DHC”) during a hearing investigating allegations that Watts-Robinson, inter alia, mismanaged entrusted client funds and engaged in professional misconduct while representing the plaintiff-employee in the Billips action. Shelton moved to dismiss Watts-Robinson’s defamation action for failure to state a claim on the basis that his testimony during the disciplinary hearing was absolutely privileged, since it was made in the course of a judicial proceeding and was sufficiently relevant to that proceeding. After a dismissal hearing, the superior court granted Shelton’s motion and dismissed Watts-Robinson’s defamation action.

Two issues are presented in this appeal: whether Shelton’s allegedly defamatory statements made during the disciplinary hearing before the DHC were absolutely privileged from civil action, and whether the trial court erred by refusing to exclude the resulting discipline order disbarring Watts-Robinson from practicing law (“disbarment order”) on the basis that its prejudice outweighed its probative value. We hold Shelton’s challenged statement was absolutely privileged and the superior court properly refused to exclude the disbarment order. Accordingly, we affirm.

The plaintiff was disbarred and based the defamation claim on testimony presented at the hearing

..central to the subject matter of Watts-Robinson’s disciplinary hearing was her alleged mismanagement of entrusted client funds, including the settlement proceeds from the Billips action. Considering the entire exchange in context, Shelton’s response to questioning that he was concerned “Watts-Robinson was potentially trying to run some kind of scam on Mr. Billips” after she requested the settlement check be reissued in a manner that would permit her to deposit the check into her own bank account, because she was concerned Billips would not reimburse her for some expense, was sufficiently relevant such that it was not palpably irrelevant to the subject matter of the disciplinary proceeding.

Accordingly, Shelton’s testimony during the disciplinary hearing was absolutely privileged, and the trial court properly granted his motion to dismiss under Rule 12(b)(6) for failure to state a claim.

Further, it was not error to admit the disbarment order into evidence. (Mike Frisch)

January 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 9, 2017

"Ethics Monster" On The Docket

Dan Trevas has the story of a discipline case scheduled for oral argument tomorrow before the Ohio Supreme Court

Cleveland Metropolitan Bar Association v. Kenneth Ronald Donchatz, Case no. 2016-0859
Cuyahoga County

The Board of Professional Conduct has recommended that Kenneth R. Donchatz be suspended from the practice of law for two years, with six months stayed on the condition he doesn’t engage in further misconduct.

The charges stem from a complaint related to four client matters in which the Cleveland Metropolitan Bar Association alleged that Donchatz violated the rules governing Ohio lawyers. In its recommendation to the Court, the board noted that Donchatz served as an assistant Ohio attorney general employed by the Ohio Office of Disciplinary Counsel from 1998 to 2001. It also reported that Donchatz “characterizes himself as an expert in ethics” and has used the moniker “the ethics monster.”

Bar Alleges Improper Handling of Unpaid Judgment
Donchatz is facing several allegations of rule violations regarding his reaction to the Davey Tree Expert Company’s attempt to collect an unpaid debt from him. Davey Tree filed a lawsuit against Donchtaz to collect about $2,180 in unpaid invoices.

Donchatz represented himself in the matter, and Davey Tree obtained a default judgment against him in 2010. In 2012, Donchatz filed a notice that the judgment had been paid with the court without properly notifying Davey Tree. The attorney for Davey Tree alerted Donchatz that his action was incorrect and needed to be corrected with the court, and Donchatz allegedly didn’t make the correction. The court agreed to the company’s request to vacate the satisfaction notice and reinstated the judgment, which Donchatz continued not to pay, arguing he wrote a personal check to the company and “wrapped” it in a garnishment notice.

The board reported Donchatz never confirmed the check was received or cashed before filing his satisfaction notice. Donchatz sought to have the court reconsider the default judgment nearly three years after it happened, and Davey Tree resorted to seeking a garnishment order to compel Donchatz to pay. The trial court not only denied his request for reconsideration but awarded sanctions against him to compensate the company for its legal expenses incurred for collecting the payment. The board concluded that Donchatz violated several rules including the prohibition on knowingly making false statements to a court or failing to correct a false statement, disobeying an obligation issued by a court, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Donchatz Accepts $100,000 Loan from Client
Donchatz became a private practitioner after leaving a law firm that had disbanded, and he accumulated unpaid taxes as a result. One of his clients offered to loan him $100,000, and Donchatz informed the client that he would represent the client for free, without putting the agreement in writing.

The representation began in 2007, but in 2013, Donchatz began to ask the client how the legal fees would be handled. He also accepted and refurbished an antique desk the client gave him. The client reported that Donchatz never informed her of the rules governing transactions between lawyers and their clients, didn’t notify her of a potential conflict of interest from the arrangement, and didn’t suggest she should seek another lawyer’s advice before making the loan.

Donchatz only repaid the client $57,000, returned the antique desk, and admitted to the board that he knew he violated the rules when he accepted the loan.

Attorney Suggests Donchatz Filed False Statement
Donchatz also is accused of filing a motion in a disciplinary case that contained a false statement and misrepresentations of the opposing attorney. Donchatz assumed representation of attorney Carol Hampton, who was facing her own disciplinary charges.

Hampton and her son were involved in a dispute with a property owner represented by attorney J.T. Holt. During the disciplinary proceedings, the two testified that Holt tape-recorded all three conversations among them, and Hampton alleged that the recording of the third conversation would prove her innocence. Donchatz requested from Karen Osmond, the assistant disciplinary counsel handling the matter, copies of the Holt’s tape-recorded conversations. Osmond provided Donchatz two recordings and told him she didn’t have a recording of the third conversation.

Donchatz made a second request from Osmond for the third tape. Osmond contacted Holt who confirmed there was no third recording and informed Donchatz of that. She also provided him with Holt’s phone number, inviting him to speak directly with Holt to verify the information.

Donchatz allegedly made one phone call to Holt, not using the number from Osmond but rather one provided by his client, which was not answered or returned. He then filed a motion in the case claiming that Osmond was withholding the recording and was “fully aware” that it existed. The motion didn’t mention that Osmond had investigated the missing tape, informed him of its nonexistence, or given him the opportunity to investigate for himself.

Osmond viewed the statements in the motion as false and misleading, and when asked by the disciplinary counsel to clarify his statements, Donchatz simply defended his position. The board concluded he violated the rules, including filing a claim without merit and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Dispute Over Fees Leads to Misleading Filing
In the final complaint against Donchatz, he represented a firm in dispute with Leader Technologies. Donchatz and attorneys for Leader engaged in mediation discussions mediated by a Franklin County magistrate. Donchatz circulated a draft “Stipulated Entry and Consent Judgment,” which he testified was requested by the magistrate. Leader’s attorney testified that the magistrate hadn’t requested a consent judgment, but rather asked Donchatz to put his proposed settlement in writing.

Without the consent of the parties or the direction of the magistrate, Donchatz submitted the entry to the court without indicating it was a draft or that there were unresolved issues still pending. Leader’s attorney informed Donchatz the filing wasn’t proper and requested he withdraw it.

The attorney informed Donchatz that if he didn’t withdraw the entry, he would institute disciplinary action against Donchatz for his dishonesty. Donchatz countered by stating he would file a disciplinary action against the company’s attorney for frivolous conduct and defaming him. The court vacated the entry, and the board found Donchatz violated attorney rules.

Donchatz Responds to Claims
Donchatz objects to the board’s recommendations and argues his behavior merits a lesser penalty. He suggests the conduct in his four cases is less harmful than the conduct of other attorneys who were sanctioned with a two-year suspension.

In the Davey Tree matter, Donchatz notes no client was involved and the tree company was hired after a contractor knocked down a portion of a tree on his property. The contractor reported the incident to his insurer, and Donchatz was under the impression the contractor or the insurer had made arrangements to pay Davey Tree. He admitted his handling of the matter was “sloppy” and that he incorrectly filed the notice that the judgment had been paid. Rather than withdrawing his notice, he allowed the company’s notice to vacate to go unopposed.

In the client loan case, he admitted he improperly took the loan, but contends he didn’t violate a representation agreement with the client. He maintains he agreed to represent the client for free, but that she was responsible for all “hard costs” in the matter, and noted he repaid her $57,000.

Donchatz characterized his statement’s about Osmond withholding evidence in the Hampton disciplinary matter as an “inartful statement of opinion,” Donchatz indicated he learned about the third recording through sworn testimony in which the property owner admitted she had no claims against Hampton. He maintains that Holt predictably denied taping the meeting.

Donchatz argues his statements regarding Osmond are opinion and he can’t be sanctioned for stating his opinion, which is protected by the First Amendment.

In the settlement matter, Donchatz asserts his actions to collect more than $120,000 in legal fees from Leader Technologies and its founder were guided at all times by the magistrate conducting the mediation. He noted he consulted with another attorney to draft the settlement and circulated it by email to the other parties. His brief states he received some arguments from the opposing sides, but the opposing attorney didn’t circulate a draft judgment and neither the opposing party nor the magistrate offered any changes or edits. He submitted the draft to the presiding judge a few weeks later who signed it. Donchatz offered that neither the magistrate nor the judge offered any evidence in his disciplinary case that he did anything wrong.

Board Fails to Consider Mitigating Evidence
Donchatz argues the three-member panel of the board hearing his case failed to consider any of the character evidence he offered. He noted that none of the letters “attesting to his high character and generosity in his more than 20 years of law practice” were mentioned in the panel’s report. He notes he has taught at Ohio State University’s law school for 16 years, coached the moot court team at Denison University for two years, coached the Westerville North High School mock trial team for 20 years, and volunteered as a member of the state’s Clients Security Fund for eight years, including one year as chairman.

He noted several honors and awards he received that were associated with community service and legal-related activities, and maintains there is no precedent that allows the panel to disregard the amount of character evidence he provided.

Bar Association Seeks Harsher Sanction
The Cleveland Metropolitan Bar Association objects to both the recommendation of the board and to Donchatz’s claims. The bar association argues Donchatz’s behavior warrant an indefinite suspension.

The association maintains that the board considered and appropriately weighed the relevant mitigating factors presented by Donchatz and that there is no support for his argument that the board panel disregarded his character evidence.

The association also objects to Donchatz’s characterizations of the Hampton and Leader Technologies complaints and maintains that there is ample support in the record to find he violated the rules.

The Ohio State Bar Association recognized his contribution to his local high school moot court program.

In the words of colleagues and students, Donchatz is “a hard-working, dedicated mentor and professional”; an individual of “exceptional character…dedicated to the promotion of the legal system and education"; and an “advocate [with a] true passion for law, and for educating students.”

Ohio oral arguments can be viewed in real time and in their video library. (Mike Frisch)

January 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Physician (Don't) Represent Thyself

A doctor who was sued by a patient represented himself at trial and on appeal without success before the Connecticut Appellate Court.

The court affirmed a damages award

the [trial] court found that the plaintiff was a patient of the defendant, a physician, from whom she sought medical treatment for injuries she sustained in a motor vehicle accident that occurred in July, 2010. The plaintiff went to the defendant’s office for treatment between July and October, 2010. During her visits, the defendant inappropriately touched the plaintiff’s buttocks and breasts. The defendant’s physical contact with the plaintiff was unrelated to appropriate medical care. As a proximate cause of the defendant’s inappropriate touching, the plaintiff sustained emotional injuries and was traumatized by the defendant’s unwanted sexual advances. The court awarded the plaintiff $35,000 as fair, just, and reasonable compensation for the defendant’s tortious conduct. The defendant appealed from the court’s judgment.

As to a default entered against the defendant's business

He first claims that the court erred by failing ‘‘to enter an appearance’’ on behalf of the business. At trial, the defendant appeared as a self-represented, or pro se, party and sought to file an appearance on behalf of the business of which he was the sole owner. The defendant is not a member of the bar. ‘‘Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state ‘in his own cause.’ General Statutes § 51-88 (d) (2). The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity.’’ Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). The defendant had no authority to represent the business. The court, therefore, properly defaulted the business for failure to appear.

Three other assignments of error were rejected as the defendant tried to reargue his version of the facts on appeal. (Mike Frisch)

January 9, 2017 | Permalink | Comments (0)

Ohio To Hear Bar Admission Argument

Kathleen Mahoney tells the story of a bar admission case up for argument in the Ohio Supreme Court on January 11

In re Application of Shamir L. Coll, Case no. 2016-1243
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness recommends that the Ohio Supreme Court reject a current application from Shamir L. Coll of Lorain to take the bar examination to enter the practice of law. Pointing to Coll’s answers to certain questions on his application and his testimony during a hearing about the matter, the board concludes that Coll didn’t demonstrate the necessary character and fitness to take the bar exam. The board suggests that he be allowed to reapply for the July 2019 bar examination.

Applicant Mentions KKK on Forms Reporting Traffic Incidents
Coll graduated in 2015 from the University of Toledo College of Law and applied to take the February 2016 bar exam. A question on the application asked whether the candidate has been charged in the past 10 years with any moving vehicle violations that weren’t alcohol- or drug-related, and then requires the applicant to fill out a form for each incident.

In his response, Coll noted that he had received speeding tickets in “many cities, many counties, OH”; listed only one date for the incidents; and, for the description of the incidents, wrote “racism mostly.” Staff in the Supreme Court’s bar admissions office contacted Coll in early February 2016 to alert him that his answers weren’t specific enough for the multiple incidents. Coll resubmitted the traffic violation forms, this time identifying four separate incidents between July 2008 and July 2012. He listed the “final disposition” as “speeding” for three of the incidents and “stop sign” for the fourth. For his description of the incidents, he wrote “KKK … their city is worthless,” “KKK … maybe I was speeding,” “KKK … they wanted to be me,” and “KKK … They hate being them.” Coll also left other lines on the forms blank.

Board Holds Hearing, Recommends Preventing Applicant from Taking Exam
At a hearing in late April 2016 before a three-member panel of the board, Coll stated that by giving his full name, his Social Security number, and his Ohio driver’s license number he thought the board had enough information to look into the citations. He also maintained that the board breached its contractual duty to conduct an investigation of him in return for his application fee. As far as the references to the Ku Klux Klan, Coll testified that he wanted to “flex his legal rights” under the First Amendment to express himself as an individual. He added that his previous driving record was inconsequential to evaluating his overall character.

The board notes in its report to the Court that an applicant has a “duty to cooperate and to provide accurate and complete answers to all requested information” and that Coll “set out to sabotage the application process” with his provocative responses.

“Not only do his constitutional arguments lack rigor, his facile exercise – at the expense of the Bar Admissions Committee and the Board of Commissioners – demonstrates a woefully inadequate appreciation for the seriousness of the legal profession and the bar admissions process, so much so that the [p]anel concludes that his immaturity (or egotism … or both), combined with a dramatic lack of judgment, render him currently unfit to practice law,” the report states. “His testimony does not permit the [p]anel to conclude that his conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them.”

Applicant Argues Responses Were Within Free-Speech Rights
Coll has objected to the character and fitness board’s conclusions and recommendation. Because of the free-speech rights guaranteed in the First Amendment to the U.S. Constitution, Coll asserts that the board can’t deny his character, fitness, and moral qualifications to practice law based on his comments about racism on the traffic violation forms. He cites several U.S. Supreme Court decisions involving applicants who were prohibited from taking the bar exam in their states because they declined to answer questions about their connections to communist organizations or to divulge other political affiliations. The U.S. Supreme Court overturned the denials by the states. Coll concludes from these rulings that “states cannot chill applicants First Amendment rights” to express themselves on their bar applications.

He also contends that any omissions on his application may be grounds for disapproval only if the omissions are relevant. The admissions committee must weigh several factors when determining the importance of an applicant’s prior conduct, he states, explaining that his traffic convictions occurred when he was young, from 17 to 21 years old; the offenses were minor misdemeanors; he has been rehabilitated given that he has had no traffic violations in the past four years; and he has made positive social contributions through his work as a legal intern at the Toledo Municipal Court. His supervisor there, a prosecuting attorney, spoke before the board’s panel of his competent work and qualities showing strong character and fitness to practice law, he notes.

In addition, he argues that the proposed delay until 2019 for him to reapply to take the bar exam is harsher than the sanctions approved in similar cases. In an example he gave, an applicant was required to wait three years to reapply because he didn’t disclose that he hadn’t graduated from law school and had been charged with significant traffic violations, including drunk or drugged driving and leaving the scene of an accident. Coll argues these issues are much more serious concerns than those raised in his application, yet he is receiving the same three-year ban before he can reapply. Coll points to another case in which the applicant failed to report three of four alcohol-related offenses, but only had to wait one year before he could reapply.

Coll asks the Court to approve the bar exam application he submitted in 2016 and to let him to take the exam in 2017.

Bar Association Waives Oral Argument
The Toledo Bar Association, which in January 2016 initially approved Coll’s application to take the bar exam, didn’t file a brief in this case and, as a result, will not be permitted to participate in oral argument.

(Mike Frisch)

January 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)