Friday, February 5, 2016

Actual Innocence Not Required To Sue For Legal Malpractice In Iowa

Actual innocence need not be proven for a defendant to sue a criminal defense attorney for malpractice, according to a decision of the Iowa Supreme Court

In the present case, the plaintiff faults his former criminal defense attorneys for allowing him to plead guilty to a specific crime that lacked a factual basis. He sued the attorneys for malpractice, but the district court granted them summary judgment because the plaintiff could not show he was actually innocent of any offense that formed the basis for the underlying criminal case.

On our review, we decline to adopt proof of actual innocence as a separate prerequisite to recovery for legal malpractice against criminal defense attorneys. Instead, we believe judges and juries should take innocence or guilt into account in determining whether the traditional elements of a legal malpractice claim have been established. We therefore reverse and remand for further proceedings.

 The court discusses the issue and concludes

we think the causation determination will frequently take into account the guilt or innocence of the client. And ultimately, we are not persuaded by the remaining public policy concerns other than causation. For example, while the notion that an individual should not "profit from participating in an illegal act" is a good general principle, Humphries, 712 S.E.2d at 800, it is too general to describe how our legal system actually operates. We do not bar criminal defendants who are guilty of their crimes from recovering overpayments from their criminal defense counsel, suing for clearly illegal searches, or suing the medical staff in the prison for medical malpractice. By analogy, a criminal defendant who is convicted of a crime due to legal malpractice, and gets that conviction set aside, should not be categorically barred from suing his or her former attorney just because the defendant may have been guilty of some lesser charge that would have resulted in a lower sentence.

Likewise, our legal malpractice precedents have not adopted the principle that "subsequent negligent conduct" by the attorney can be compared to the "culpability" of the client that required him to need legal services in the first place. See Wiley, 966 P.2d at 986; cf. Restatement (Third) § 54 cmt. d, at 404 (discussing the scope of comparative negligence in the context of legal malpractice and noting that "clients are entitled to rely on their lawyers to act with competence, diligence, honesty, and loyalty").

Further, the potential for "nuisance" suit did not alter the public policy analysis. (Mike Frisch)


February 5, 2016 | Permalink | Comments (0)

Shame On You; Private Admonition On Me

The Iowa Supreme Court has privately admonished an attorney who sent an ex parte email to the judge reviewing an arbitration award of a county bar association.

His (non-frivolous) beef with the award was that his former attorney was the bar association president.

The email

Dear Robert Hutchison:

Like I stated in my motion to expand and correct your pathetic ruling; I never communicated with you exparte until now. Because you choose to play fast and loose with your ethical responsibilities and irresponsible rulings please accept this as your first exparte communication from me.

The rest you unethical behavior you can explain to your judicial committee. You should be ashamed of yourself and I’m sure you have heard this before. Your shameless cover up for your circle of buddies will not go unaddressed. Hopefully I never have to deal with your arrogant unethical behavior again.

Have a nice holiday. FYI this isn’t a tactic I’ve used before but when observe unethical arrogant men who abuse their power I believe its important to call it as i see it just like now. In my book you’re no better than the convicted scum you sentence to jail several times a month.

Shame on you.

Judge Hutchison reported the email to the Iowa Supreme Court Attorney Disciplinary Board (Board).

 The court on sanction

While Attorney Doe’s email was unprofessional, we do not believe a license suspension or a public reprimand is the appropriate sanction. However, had we found other properly charged and proven violations, a public sanction would be appropriate. Instead, we choose to privately admonish Attorney Doe. We do note that, while a private reprimand is not discipline, it serves as a warning and puts the attorney on notice that his or her behavior violates certain ethical requirements...Likewise, in imposing only a private admonition, we are in no way minimizing or condoning the unwarranted and unprofessional attack on a judicial officer.

(Mike Frisch)


February 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sex with Client Draws Suspension

From the web page of the Tennessee  Supreme Court notes a decision to increase the length of an attorney's suspension.

The Supreme Court has decided to increase the punishment recommended by a hearing panel to discipline an attorney for sexual misconduct involving a client that he was appointed to represent in a criminal matter and for revealing confidential information of another client to a judge in a different matter.

Robert Vogel, a Knoxville attorney, received a one-year suspension of his law license from a hearing panel of the Board of Professional Responsibility, which oversees attorney discipline. Although the panel imposed the punishment along with several conditions, it agreed that only 30 days was to be served on active suspension, with the remainder to be served on probation. In reaching its decision only to impose 30 days of active suspension, the hearing panel relied upon a number of remedial actions Mr. Vogel undertook in response to his misconduct.

The Supreme Court found the proposed punishment inadequate and instead proposed the punishment be increased. The Court reviewed the case to determine whether the punishment imposed was uniform with prior disciplinary decisions and appropriate under the circumstances of this case. As part of its duty to regulate the practice of law in Tennessee, the Supreme Court bears “the ultimate responsibility for enforcing the rules governing the legal profession.”

While recognizing the same remedial actions noted by the hearing panel, the Court placed less emphasis on those mitigating factors. Instead, the Court focused more heavily on the fact that Mr. Vogel “failed to safeguard the trust of a vulnerable client and exploited his … role” as her attorney, particularly in light of the fact that the client faced serious federal criminal charges. The client was a young woman who continued to use drugs during Mr. Vogel’s representation of her, including during the time period of the multiple sexual encounters. The Court specifically noted that Mr. Vogel pressured the young woman to continue the sexual relationship even after she requested that it stop, and she reluctantly complied. The Court concluded that Mr. Vogel’s conduct represents “a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.”

Read the unanimous opinion in In re: Robert Lee Vogel, authored by Justice Jeffrey S. Bivins.

The sexual relationship was with a criminal client that he was appointed to represent

Mr. Vogel and Ms. Alford engaged in a sexual relationship during the course of Ms. Alford‘s employment at Mr. Vogel‘s law office. When asked how the relationship developed, Ms. Alford testified that she began ―feeling awkward‖ with Mr. Vogel from the beginning of the representation but that ―it wasn‘t until [Mr. Vogel] got into the new office that he [] more approached [her] and would tell [her] don‘t let his feelings towards [her] interfere with him being [her] lawyer because he was just a man and stuff.‖ During her employment at Mr. Vogel‘s law office, Mr. Vogel would ―constantly call[] [her] into his office,‖ where he would pull her into a ―blind spot‖ between the doors and ask for a kiss. Ms. Alford acknowledged that, although she was not attracted to Mr. Vogel, she would kiss him.

Ms. Alford then described how the relationship progressed. Mr. Vogel would ask her to sit on his lap and to work until 8:00 p.m. Ms. Alford began working later hours, but she testified that ―it was just . . . so [Mr. Vogel] could hang out with [her] . . . because [she] wasn‘t doing much.‖ Nobody else would be present when she was in the office with Mr. Vogel after 5:00 p.m. When asked how she reacted when Mr. Vogel would ask for a kiss or for her to sit on his lap, Ms. Alford answered, ―I mean, I did it. I mean, I was submissive.‖ She did not express her reluctance to kiss Mr. Vogel or to sit on his lap because Mr. Vogel ―held [her] future in his hands.‖ Ms. Alford also noted that she was using drugs during that time. Ms. Alford testified that she and Mr. Vogel engaged in sexual intercourse on three occasions, each initiated by Mr. Vogel. The first and third sexual encounters took place in Mr. Vogel‘s office building in ―the middle bedroom in the upstairs at the back of the building,‖ and the second sexual encounter took place in Mr. Vogel‘s actual office. Each instance of sexual intercourse took place after working hours, and Ms. Alford did not think anybody else would be present in the office.

As to sanction the court noted evidence of a sex addiction but

Ms. Alford was, as the Panel described, a ―young, drug using, court-appointed client who was under federal indictment for drug related charges.‖ By making sexual advances towards Ms. Alford, engaging in a sexual relationship with her, pleading with her on one occasion to engage in a sexual relationship after she expressed her reluctance to do so, and continuing to serve as her attorney, Mr. Vogel failed to safeguard the trust of a vulnerable client and exploited his fiduciary role. This is particularly egregious in this case in light of the questionable consensual nature of the sexual relationship, given Ms. Alford‘s uncontroverted reluctance to continue to engage in sexual relations with Mr. Vogel. In our view, even in considering the mitigating circumstances in this case, Mr. Vogel‘s conduct represents a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.

(Mike Frisch)

February 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Long Suspension For "High Degree Of Negligence"

The Louisiana Supreme Court rejected a six-month suspension and probation proposed for an attorney who had mishandled his trust account.

The court ordered a two-year suspension.

Respondent is guilty of at least a high degree of negligence in mismanaging his client trust accounts. His actions caused actual harm to a client, and potential harm to an unknown number of clients. The harm respondent caused to his client was not rectified until after she filed a disciplinary complaint against him. Significant aggravating factors are present, including respondent’s prior disciplinary record for similar misconduct, the fact that he committed multiple offenses, and his substantial experience in the practice of law.

Considering these factors, we find the appropriate sanction for respondent’s misconduct is a two-year suspension from the practice of law.

The attorney was admitted in 1972 and has a record of prior discipline that contributed to the court's determination that the recommended sanction was unduly light

The board suggested we impose a sanction similar to the one we imposed in Dumas I – namely, a one-year suspension with six months deferred, followed by probation with conditions. When we imposed a relatively lenient sanction in Dumas I, it was our intention that respondent be given an opportunity to address his deficiencies. However, the record reveals that since his prior suspension, respondent’s accounting practices have only deteriorated further. The continuation of respondent’s misconduct following our judgment in Dumas I makes it clear no useful purpose would be served by deferring any portion of respondent’s suspension.

(Mike Frisch)

February 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 4, 2016

Reinstated At A Discount Rate

An attorney who was suspended in the wake of a money laundering conviction was reinstated by the Wisconsin Supreme Court and ordered to pay half of the costs of the proceeding.

In July 2013, the United States Court of Appeals for the Seventh Circuit reversed Attorney Stern's conviction on the ground that the trial court wrongly prevented him from testifying about his own conduct.

  The court noted that the reversal did not exonerate the attorney. He had already served his time and was not re-prosecuted as he pleaded guilty to contempt of court.

The focus was on the payment of costs

Given that it was appropriate for this court to assess the full costs of a reinstatement proceeding against a lawyer who was fully exonerated of all charges that led to the revocation of his law license, it would seem incongruous to assess no costs against Attorney Stern, who was not fully exonerated; as stated above, he stands guilty, by his own plea, of criminal contempt of court.

On the other hand, the OLR does not make a particularly compelling case against the referee's recommendation to waive the costs of this proceeding. While this court's general policy is to award full costs to the OLR, see SCR 22.24(1m), we have certainly made exceptions to this policy. The OLR, in arguing that no such exception should be made here, seems to refer to an outdated standard: whether "extraordinary circumstances" justify a deviation from the court's general policy to award the OLR full costs. We removed the "extraordinary circumstances" language from our rule governing the assessment of costs (SCR 22.24) some time ago. See S. Ct. Order 05-01B, 2011 WI 59 (iss. Jul. 6, 2011; eff. Jan. 1, 2012).

On balance, we deem it appropriate to impose one-half of the costs on Attorney Stern...

 (Mike Frisch)


February 4, 2016 | Permalink | Comments (0)

No Early Bar Exam In D.C.

The District of Columbia Court of Appeals has adopted revisions to its admissions rule but declined to bless a pre-graduation bar exam option.

From the web page of the Bar

Court of Appeals Adopts Amendments to Rule 46, With Exceptions

February 4, 2016

The District of Columbia Court of Appeals has adopted proposed amendments, with two exceptions, to D.C. Court of Appeals Rule 46, which governs admission to the D.C. Bar. The proposed amendments take effect March 1.

The revised rule adopts the Uniform Bar Examination (UBE) and establishes the District of Columbia as a UBE jurisdiction. It also imposes a limit on the number of times an applicant may sit for the bar exam, with the exception of extraordinary circumstances.

However, the proposed amendment permitting law students to take the bar exam during their third year of law school, with certification by the law school, is not adopted at this time. The Court has reopened the comment period for this issue. Written comments are due by March 31. Comments must be submitted in 10 copies to the Clerk, D.C. Court of Appeals, 430 E Street NW, Washington, D.C. 20001. All comments will be made available to the public.

Additionally, the proposal allowing graduates from law schools not accredited by the American Bar Association to fulfill their 26 hours of required study through "classroom" courses will be considered at a later date, at the recommendation of the D.C. Bar's Global Legal Practice Task Force.

View the court order.

(Mike Frisch)

February 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Murdter They Decided

The District of Columbia Court of Appeals has squarely rejected the call for leniency by the Office of Disciplinary Counsel in In re Murdter - a case where the attorney failed to file briefs in five appointed criminal appeals.

Disciplinary Counsel maintains that the Board and the Hearing Committee gave disproportionate weight to "the seriousness of [respondent’s] conduct," Martin, 67 A.3d at 1053, while undervaluing other, mitigating factors. Specifically, Disciplinary Counsel emphasizes respondent’s demonstrated cooperation with Disciplinary Counsel and commitment to change, further arguing that respondent’s clients did not suffer actual prejudice because their convictions were eventually affirmed on appeal. But, as our opinion in In re Askew, 96 A.3d 52 (D.C. 2014) (per curiam),  respondent's disregard of client matters took on heightened significance in the context of his appointment to represent indigent appellants:

We weigh heavily the fact that Ms. Askew was appointed to represent [the appellant] under the Criminal Justice Act. . . . When a [CJA] panel attorney so egregiously fails to fulfill [her] obligation [to competently represent and zealously advocate for . . . clients], it undermines the aim of the [CJA], and reflects negatively on both this court and the legal profession. Id. at 60.

Respondent, it scarcely needs repeating, accepted and then largely ignored appointment in not one but five such appeals. And this indifference to his client obligations went hand-in-glove with disregarding multiple related orders of this court, conduct itself "seriously interfer[ing] with the administration of justice." D.C. R. Prof. Conduct 8.4 (d)...

Disciplinary Counsel is legitimately concerned with not "punishing" attorneys who are genuinely remorseful and committed to remediation, but that concern cannot be at the expense of deterring a lawyer’s gross indifference, as exemplified here, to duties owed both clients and the court.

The Board’s report and recommendation, by contrast, appropriately balances the competing considerations.

The court imposed a sixty-day suspension followed by a period of probation.

Don't feel too bad for the Office of Disciplinary Counsel.

A dozen of more of the staff are off in San Diego partying on bar dues. Highlights include a tour of the USS Midway Museum.

Maybe they are all on the West Coast to meet and explore ways to address their huge backlog of cases.

Or maybe not. (Mike Frisch)

February 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, February 3, 2016

New Disclosure Rules Proposed for D.C. District Court

The United States District Court for the District of Columbia has put out for comment a proposed new rule on the disclosure obligations of prosecutors.


(a) Unless the parties otherwise agree, the government shall make available to the defense any non-trivial information known to the government that tends to negate the defendant’s guilt, mitigate the charged offense(s), or reduce the potential penalty. This requirement applies regardless of whether the information would itself constitute admissible evidence. The information, furthermore, shall be produced, where not prohibited by law, in a readily usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying.

 The government shall make good-faith efforts to promptly disclose the information to the defense beginning at the defendant’s initial appearance before the court, and this obligation shall remain ongoing throughout the criminal proceeding.

(b) The information to be disclosed includes, but is not limited to:

(1) Information that is inconsistent with or tends to negate the defendant’s guilt as to any element, including identification, of the offense(s) with which the defendant is charged;

(2) Information that tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the defendant is charged;

(3) Information that casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates using in its case-in-chief at trial; and

(4) Impeachment information, which includes: (i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and (ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness.

(c) As impeachment information described in (b)(4) is dependent on which witnesses the government intends to call at trial, this rule does not require the government to disclose such information before a trial date is set.

(d) In the event the government believes that a disclosure under this rule would compromise witness safety, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may apply to the Court for a modification of the requirements of this rule.

 (e) For purposes of this rule, the government includes federal, state, and local law-enforcement officers and other government officials participating in the investigation and prosecution of the offense(s) with which the defendant is charged. The government has an obligation to seek from these sources all information subject to disclosure under this Rule.

(f) The Court may set specific timelines for disclosure of any information mentioned in this rule.

The committee

 In 2015 an ad hoc committee established by former Chief Judge Royce Lamberth examined whether it was worthwhile for our district to promulgate a local rule regarding government disclosure of exculpatory information in criminal cases. The committee was chaired by Judges Colleen Kollar-Kotelly and Jeb Boasberg, and it included Earl Silbert of DLA Piper, Federal Public Defender A.J. Kramer, American University Law Professor Cynthia Jones, USAO Criminal Division Chief Jonathan Malis, Mary Pat Brown of O’Melveny & Myers, and Manuel Retureta of Retureta & Wassem.

(Mike Frisch)

February 3, 2016 | Permalink | Comments (1)

Oklahoma: No Mitigation For Misappropriating Recovering Alcoholic

The Oklahoma Supreme Court declined to impose a sanction less than disbarment in a case involving numerous client-related ethical violations of an alcoholic attorney who is now in recovery.

The Bar has established by clear and convincing evidence that Respondent has committed serious violations of the ORPC and the RGDP which have resulted in grave economic harm to multiple clients and brought disrepute to the profession. The evidence demonstrates that several clients are owed an accounting and the return of all or a part of the money they paid as a retainer. The record is devoid of evidence of efforts to remedy that situation. This Court notes that an affidavit of compliance with Rule 9 following Respondent's interim suspension has not been filed.

This Court is mindful of the testimony of Respondent's AA sponsor and his counselor concerning Respondent's sincere and effective efforts to maintain sobriety. However, those efforts do not make the serious misconduct and substantial harm to clients simply go away. Respondent's argument for a period of probation while he maintains a law practice is unsupported by any citation of authority and there exists no such authority to support that position. This Court holds that disbarment is the only sanction adequate to protect the public from Respondent's continued practice and to warn other lawyers of the consequences of serious misconduct involving client funds.

The attorney might well be eligible for probation in a number of jurisdictions including the District of Columbia. (Mike Frisch)

February 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Intended To Annoy

The Maine Supreme Judicial Court rejected a criminal defendant's claim for a new trial based in part on the alleged misbehavior of the prosecutor.

While the court found misconduct, it did not deny the defendant a fair trial.

There was misconduct in arguments and

An evidentiary hearing on the motion was held in June 2014.3 At the motion hearing, Jason Dionne, an attorney who was not otherwise involved in the case, testified that he was present in the courtroom during closing arguments. Dionne testified that as he was observing Robinson’s closing argument, he saw the prosecutor respond to defense counsel’s rhetorical questions that were designed to demonstrate that Robinson could not have known the information necessary to commit the crime (“How does [Robinson] know that [Fesmire’s] going to a family reunion?”). Dionne saw the prosecutor gesture toward Robinson and mouth the words, “He did,” or “He did it.” Dionne further testified that he saw at least five jurors turn toward the prosecutor.

The prosecutor also testified at the hearing and denied any such behavior, stating that he did not intend to send a message to the jury. A detective who had sat next to the prosecutor and a second detective who was in the back of the courtroom during defense counsel’s closing  did not see the prosecutor gesturing or attempting to communicate with the jury.

 During the motion hearing, Robinson also developed evidence that as his attorney was presenting his closing argument, the prosecutor either was or appeared to be sleeping. During his testimony at the motion hearing, the prosecutor admitted that he likely closed his eyes, put his head back, and feigned sleep in order to annoy defense counsel. He said, however, that he did not intend for this conduct to be a message to the jury.

(Mike Frisch)


February 3, 2016 | Permalink | Comments (0)

One Is A Lawyer Named Lawless

It being Oscar time, the Pennsylvania Disciplinary Board has named its Top Five Respondents of the Year:

Each year we review five cases decided in the Pennsylvania disciplinary system deemed, in the sole and unappealable discretion of the Editor, to be the most significant cases of the year. We look for cases that present issues which have not often arisen, especially ones reflecting new developments in practice such as technology. We also look at high-profile cases, such as those involving public officials or judicial misconduct.

This year, we found the following cases of particular interest:

  1. James Paul Carbone, No. 71 DB 2014 (August 12, 2015).

    Carbone was disbarred based on prosecutorial misconduct committed in his official role Venango County assistant district attorney. Carbone misrepresented his contacts with witnesses to a court, argued his personal opinion on a defendant’s guilt to a jury, and engaged in an ex parte contact with a defendant. Aggravating factors included his refusal to participate in disciplinary proceedings and his betrayal of his position as a public officer.

  2. John J. Koresko IV, No. 119 DB 2013 (September 4, 2015)

    Koresko was disbarred for misconduct committed in various proceedings which flowed from his sale of a home to a former co-worker. Based on his belief that a second mortgage was not valid, he neither disclosed nor satisfied the mortgage, leading to years of litigation Koresko himself described as “nuclear war.” The Disciplinary Board found that he filed meritless claims and appeals, obstructed discovery, engaged in conflicts of interest, made misrepresentations to courts and other parties, and committed various acts of misconduct toward opposing and third parties. He never admitted any fault in the matter.

  3. William N. Renwick, No. 153 DB 2013 (May 14, 2015)

    Renwick was suspended for two years based on his use of another attorney’s CM/ECF (Case Management/Electronic Case Filing) account to file pleadings in the United States Bankruptcy Court. The account was one of a suspended attorney with whom Renwick engaged as a paralegal. Renwick did not have his own CM/ECF account and did not complete the training required to have an account. He also made false statements to the court about his relationship with the suspended attorney and his use of the account.

  4. Thomas M. Nocella, No. 152 DB 2013 (October 20, 2015)

    Nocella, who served as a judge on the Philadelphia Municipal Court and the Philadelphia Court of Common Pleas, was disbarred after he was removed from the bench and barred from judicial office by the Court of Judicial Discipline. The Disciplinary Board concluded that Nocella had violated several of the Rules of Professional Conduct in a series of knowingly false statements and failures to disclose required information in evaluation questionnaires submitted to the Philadelphia Bar Association Commission on Judicial Selection and Retention, including the facts that he was a defendant in numerous actions, that IRS liens and judgments had been entered against him, that he had filed a petition for bankruptcy, and that he had received an informal admonition as discipline.

  5. Joseph F. Lawless, No. 177 DB 2013 (June 25, 2015).

    In a prior disciplinary case, Lawless entered into a Joint Petition in Support of Discipline on Consent, which provided that he would receive a year and a day suspension stayed in its entirety by two years of probation. The terms of the probation required that he abstain from alcohol, drugs or other mind-altering chemicals, and that he maintain weekly telephone contact and twice monthly meetings with a sobriety monitor.

Lawless failed to keep up with the required schedule of contacts. His sobriety monitor warned in May that he was “not taking this seriously.” By January 2015, his monitor reported that he received only one telephone call from Lawless in December, and in February he reported no further contact since that call. In a voicemail left with the sobriety monitor in April, Lawless admitted to a relapse.

Based on his violation of the terms of probation, Lawless’s probation was revoked and he was suspended for a year and a day.

No report on whether the selections reflect the diversity of the Keystone state Bar. (Mike Frisch)

February 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Two Suspended In Ohio

Dan Trevas reports on two disciplinary decisions on the web page of the Ohio Supreme Court.

In separate disciplinary cases announced today, the Ohio Supreme Court suspended two Ohio attorneys from the practice of law.

  • The Supreme Court suspended for two years, with one year stayed on conditions, Columbus attorney Beverly J. Corner.
  • The Court suspended Cincinnati attorney Edwin L. Vardiman Jr. for one year, with six months stayed on conditions.

Corner Mishandled Cases, Client Funds
In Disciplinary Counsel v. Corner, the Court noted that six weeks after an initial three-count complaint was brought against Corner by the Ohio Disciplinary Counsel, a second separate complaint of misconduct was submitted by the Columbus Bar Association. The Court’s Board of Professional Conduct consolidated the two cases before considering charges against her.

In a 6-1 per curiam decision, the Court first considered a complaint filed by a client seeking Corner’s help filing a bankruptcy plan in U.S. Bankruptcy Court in 2011. The bankruptcy trustee rejected the initial filing for several errors including providing the wrong Social Security number. The court twice rejected Corner’s submissions because of errors, and directed Corner to file an order to receive an extension of time to file a second bankruptcy petition. Corner did not, and when asked by the judge about her inaction, she stated she “forgot.”

The bankruptcy court ordered Corner to return $1,800 the client had paid her to file the case, but Corner told the court that she had not received payment from the client. However, an invoice revealed that she had been paid 11 months earlier. The bankruptcy court issued an order concluding Corner “did not have sufficient skills to adequately represent debtors.” Corner provided evidence that she paid the client back in April 2014.

The board found Corner violated several rules of attorney conduct in the matter including requirements that an attorney “provide competent representation to a client,” “act with reasonable diligence in representing a client,” and “promptly deliver funds that a client is entitled to receive.”

Additional Charges Brought for Mishandling Funds
The Court also agreed to a board finding that in 2010, Corner was investigated by the disciplinary counsel regarding her misuse of a separate state-required bank account in which she was required to hold client funds. Disciplinary counsel gave Corner time to work with her bookkeeper to learn how to appropriately maintain this client fund separate from her own business account. But in 2012, a second disciplinary counsel investigation found she continued to inappropriately mingle client funds with her own funds, and the board found she violated three more rules for handling client money.

The Court also found that Corner committed additional rule violations in eight additional client matters, including: mishandling of fees; failing to promptly distribute settlement proceeds to clients; issuing incorrect settlement statements in order to inflate her fee; and improperly dividing fees with other attorneys helping her with client cases without the clients’ written consent.

Disciplinary counsel also charged Corner with charging an excessive fee for service in a personal-injury case where the client had first retained another lawyer. The first attorney sought about $11,000 from a future settlement in order to provide Corner the information to proceed with the client’s case, and Corner was able to negotiate the cost down to about $9,300.

The client eventually settled the matter for $145,000 and Corner had agreed to a 30 percent contingency payment for her fee. When the case was settled, Corner took 30 percent and deducted the $9,300 to pay the other attorney from the client’s share of the settlement. Disciplinary counsel argued that resulted in the client paying about $52,800, which is a total 36 percent fee to have the case settled. It cited an Indiana Supreme Court decision that a client should only have to pay one contingency fee, and that the attorneys should split it.

The Ohio Supreme Court noted the Indiana decision stated the rule should only apply “in the absence of express written fee arrangements,” and in Corner’s case there was a written agreement. Based on the total amount of the fee for both attorneys and the client’s understanding that the first attorney fee was reduced and that it would come from his portion of the settlement, the Court found the fee was not excessive.

In considering sanctions against Corner, the Court noted she had no prior disciplinary record, cooperated with the investigations, and that she contracted with the Ohio Lawyers Assistance Program (OLAP) to continue counseling for depression. The Court agreed to stay the second year of suspension provided that Corner does not engage in further misconduct, participates in appropriate mental health treatment, and fulfills her obligations to OLAP.

Chief Justice Maureen O’Connor, and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the majority opinion.

Justice Judith Ann Lanzinger dissented writing she would indefinitely suspend Corner.

2014-1404. Disciplinary Counsel v. Corner, Slip Opinion No. 2016-Ohio-359.

Video camera icon View oral argument video of this case.

Vardiman Falsely Signed Documents
Vardiman had been briefly suspended by the Court in December 2007 for failing to register as an attorney, and faced charges brought against him in 2014 by the Warren County Bar Association and the Cincinnati Bar Association. The Court’s 4-3 per curiam opinion noted that both complaints centered on ethical violations regarding signatures on documents.

In the Warren County case, Vardiman represented a father seeking to reduce his child support obligation, and he initially obtained the signature of the mother, who was not represented by an attorney. Four documents requiring the mother’s signature were rejected by the trial court, and when a revised set of documents was filed by Vardiman, the court discovered he had signed the mother’s signature without her authority.

Vardiman claimed he signed the mother’s name on the documents because his client was getting anxious about the time the process was taking. The board found Vardiman violated several attorney rules including “knowingly making a false statement of fact or law to a tribunal,” “committing an illegal act that reflects adversely on the lawyer’s honesty and trustworthiness,” and “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.”

The Cincinnati complaint came when Vardiman prepared a client’s will that required two witness signatures. Vardiman signed his own name as a witness then signed the name of another person without permission. That act violated the professional rules against “committing an illegal act,” and “engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

In determining the appropriate sanction for Vardiman’s misconduct, the Court noted that his brief registration suspension was due to an oversight and that he did not have any other prior disciplinary issues. The court also considered that he had contracted with OLAP for three years to treat an attention-deficit/hyperactivity disorder (ADHD).

“Vardiman’s conduct was at least partially driven by his recently diagnosed ADHD, which his treating psychologist described as an ‘inborn neurological problem.’ Given Vardiman’s acceptance of responsibility for his actions; his active participation in OLAP and effective treatment for this disorder; and numerous letters attesting to his good character, reputation, and professional competence, we agree that a one-year suspension, with the final six months stayed on conditions, is the appropriate sanction for his misconduct,” the Court wrote.

Justices Pfeifer, Lanzinger, Kennedy, and French joined the opinion.

Chief Justice O’Connor and Justices O’Donnell and O’Neill dissented, writing they would not have stayed any portion of the suspension.

2015-0589. Warren Cty. Bar Assn. v. Vardiman, Slip Opinion No. 2016-Ohio-352.

(Mike Frisch)

February 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 2, 2016

Pink Slip

Reciprocal disbarment has been imposed by the New York Appellate Division for the First Judicial Department based on that same sanction in Florida.

The Florida Bar commenced disciplinary proceedings against respondent by filing a complaint on December 11, 2012, alleging, inter alia, that after being banned by a company now known as OTC Markets Group (formerly Pink Sheets) from issuing opinion letters for failure to conduct due diligence, respondent continued to issue opinion letters by forming a corporation (Complete Legal Solutions, Inc.), listing his niece (an attorney admitted to practice in Florida and Texas) as an officer, and forging his niece's signature on several opinion letters without her knowledge or consent.

In response to the disciplinary charges in Florida, respondent initially appeared before a Referee at a telephonic hearing and denied the charges in an answer. However, respondent thereafter failed to appear at a scheduling conference and a subsequent hearing on an order to show cause as to why he should not be sanctioned for failing to attend the prior conference. The Referee ultimately found respondent in default after his failure to appear, found him guilty of the misconduct alleged in the charges, and recommended that he be disbarred from the practice of law with leave to reapply for admission in five years. By order of January 13, 2014, the Supreme Court of Florida adopted in full the Referee's report and disbarred respondent.

The disciplinary committee was not notified by the attorney as required by statute. Rather, it learned of the sanction as a result of litigation initiated by the SEC.

Footnote one

Respondent currently resides in the Dominican Republic, and has changed his name to "Marcelo Dominquez De Guerra."  

He is disbarred as Guy M. Jean-Pierre. (Mike Frisch)

February 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Breaking News

I have just learned that a motion to reconsider findings of misconduct in the North Carolina State Bar's charges against ACLU attorney Cassandra Stubbs has been granted.

The Disciplinary Hearing Commission has dismissed the complaint.

Our previous report on the initial findings. has the story of a misconduct finding in a disciplinary case brought against a career public interest attorney for lack of diligence in a case she won!

Rare that.

The story

A disciplinary panel of the North Carolina State Bar on Friday admonished a lawyer who participated in the first case to be heard under the Racial Justice Act.

 Cassandra Stubbs was part of a team of lawyers who represented Marcus Robinson, whose death sentence was commuted in 2012 after a judge determined race played a factor in how jurors were selected for Robinson's 1994 murder trial.
The State Bar responded to an anonymous complaint filed against Stubbs by charging her in March with providing inaccurate information to the judge in Robinson's hearing in violation of the rules of professional conduct for attorneys.
The Racial Justice Act, which state lawmakers repealed in 2013, allowed death row inmates to challenge their sentences by using statistical evidence to show racial bias during their trials. In Robinson's case, Stubbs and other attorneys gathered affidavits from blacks who were excluded from the jury, but the State Bar alleged that information contained in two affidavits didn't jibe with other evidence in the case and that Stubbs didn't try to correct them before submitting them as evidence.
The disciplinary panel recently determined that Stubbs had violated the rules of conduct, and the three members on Friday weighed the punishment she should receive.
In tearful testimony, Stubbs said "I respectfully disagree" with the State Bar's allegations and panel's ruling, noting that she was on maternity leave at the time the affidavits were drafted and simply reviewed them.
She said the charges against her have been "totally devastating," saying that she has built her legal career on hard work and integrity.

The charges go to "things that are at the heart of what I consider to be who I am as a person and who I am as a lawyer," she said. "This process has been really difficult for me because it's so antithetical to the kind of lawyer that I want to be and try hard to be."

 Superior Court Judge Greg Weeks said the questionable affidavits played no role in his decision to overturn Robinson's death sentence.
Weeks praised Stubbs' work in a letter to the disciplinary panel, as did dozens of other defense lawyers, some of whom attended Friday's hearing.

"Cassie is one of the most diligent attorneys I know," attorney Brian Stull said.

 "I consider her to be one of the best of the best. Her ethics are impeccable. She's an absolute beacon of integrity," attorney Jay Ferguson said.
"The first thing I thought of when I read those letters is how many letters would I get, and I can tell you I wouldn't get 59," said Donald Prentiss, chairman of the disciplinary panel.
After more than an hour of deliberation, the panel decided to hand out the lowest possible level of discipline by formally admonishing Stubbs for her actions.
Stubbs' lawyers had pushed for a simple warning to her and now must decide whether to appeal the discipline.
Gretchen Engle, another attorney for Robinson, faces similar allegations, but the State Bar hasn't heard her case yet.
The news report also links to a video of the sanction phase of the disciplinary hearing.
The testimony of the accused attorney takes approximately the first hour. After watching her testify, my view that this prosecution (based on an anonymous complaint) never should have been brought is strongly reinforced. 
The attorney was accused of "lack of diligence" because two inaccurate affidavits were filed in a case. The judge concluded that the affidavits were immaterial. There was never even a hint of suggestion that the attorney engaged in knowing misconduct.
If an attorney violated ethics rules every time an affidavit was deemed to be inaccurate, we would be a country full of admonished lawyers. 
WRAL also reported that charges against a second attorney were not sustained. And, in the video linked to that story, it  is noted that prosecutors in the underlying case also submitted inaccurate affidavits (the exact charges brought against the defense attorneys) but have not been prosecuted by the State Bar.
How interesting.
I felt that these charges never should have been brought and am heartened by this outcome. (Mike Frisch)

February 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A $500 Misunderstanding

A professed misunderstanding over CLE compliance has led the Indiana Supreme Court to impose a $500 fine.

After a July 6 suspension for non-compliance

The Disciplinary Commission filed an “Amended Verified Motion for Rule to Show Cause” on November 18, 2015, asserting Respondent practiced law in this state by representing clients while suspended from the practice of law. Specifically, on July 19, 2015, Respondent was retained by a client in a bankruptcy matter, met with the client and discussed his bankruptcy, and was paid a $1,100 cash retainer. Further, on September 21, 2015, Respondent filed an appearance and a motion to recall warrant in Carmel City Court on behalf of a different client.

The attorney explained

Respondent asserts that he sent an unverified letter to the Executive Director of the Commission for Continuing Legal Education on July 2, 2015, requesting an extension of time to complete his CLE requirements and pay the necessary fees, and that he believed that an extension would be granted.

The court

Respondent’s professed belief was not reasonable under the circumstances.

The fine was imposed for contempt of court.

The same sanction was imposed on an attorney who had resigned from the bar in 2006.

Charges were filed

asserting Respondent held himself out as an attorney and practiced law in this state, in violation of his duties as an attorney who has resigned from the bar. More specifically, attached to the Commission’s verified petition is written correspondence signed and sent by Respondent in which he identified himself as “esquire” and “in house counsel” for a construction company and threatened legal action against the recipient if a mechanic’s lien   was not released.

Also contempt. (Mike Frisch)

February 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 1, 2016

Second Offense

From the February 2016 California Bar Journal

MARK WHITNEY LAPHAM [#146352], 55, of Danville, was suspended from the practice of law for 30 days and ordered to take the MPRE. He was also placed on two years’ probation and faces a two-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect June 4, 2015.

In 2011, Lapham filed a Chapter 11 bankruptcy petition with the purpose of trying to delay a foreclosure on a property that was not owned by his client. He also did not report to the State Bar $1,000 in sanctions imposed against him.

He had one prior record of discipline. In 1994, he was suspended following his conviction for violations of the uniform code of military justice, including conspiracy to commit graft, conduct unbecoming an officer and dereliction of duty while he was a lieutenant in the Navy Judge Advocate General’s Corps.

In mitigation, Lapham entered into a prefiling stipulation with the State Bar.

(Mike Frisch)

February 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Foolish Inconsistency

The Washington Court of Appeals has held that judicial estoppel precludes a legal malpractice suit premised on contentions inconsistent with those offered in a bankruptcy action.

Courts apply the equitable doctrine of judicial estoppel to protect the integrity of the judicial process by precluding a party from gaining an advantage by asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position. Here, the appellant-debtor knew all of the facts that gave rise to his potential claim of legal malpractice at the time he filed for bankruptcy, yet he failed to disclose it until almost three years after receiving a discharge from the bankruptcy court. While judicial estoppel generally does not apply to the bankruptcy trustee, here no one asked the trial court to substitute the bankruptcy trustee as the real party in interest. The trial court did not abuse its discretion by applying the doctrine of judicial estoppel to bar this legal malpractice claim. We affirm the trial court.

(Mike Frisch)

February 1, 2016 in Clients | Permalink | Comments (0)

If The Shue Fits

The Wyoming Supreme Court declined to entertain an appellate attack on a guilty plea and attempt to reduce the sentence in a criminal matter.

Marvin Shue (hereinafter “Shue”) filed a motion in the district court that can be read as both a motion to withdraw his guilty plea and a motion to reduce his sentence. The district court denied Shue’s request to withdraw his guilty plea and concluded that it lacked jurisdiction to contemplate a sentence reduction. Shue now appeals the district court’s decision. We find that the district court did not have jurisdiction to rule on Shue’s motion and that we, as a result, do not have jurisdiction to consider Shue’s appeal.

After Shue entered a guilty plea, his counsel contacted the victim's mother

and offered a $15,000 inducement (couched as “future restitution”) in exchange for the mother’s agreement to recommend to the Court that [Shue] receive a suspended sentence and no prison time. The offer was conditioned on the mother successfully persuading the District Attorney to go along with the no-incarceration recommendation. One of the stipulated hearing exhibits … is a recorded conversation in which [trial counsel] tells the mother, “The agreement would have to be that the DA goes along with this. So it would be you and the DA agreeing to recommend a suspended sentence. If the DA won’t do that, then it’s really worthless for [Shue] to even try to do this, okay?” … [Trial counsel] knew that he could not offer money to the victim’s family as that would be a clear ethical violation.

 Counsel was disciplined for the ethical violation.

Appellate counsel had filed an Anders brief in the direct appeal.

After evaluating the legal merits of these claims, Shue’s appellate counsel concluded that there were “no appealable issues”—the record supported that Shue had knowingly and voluntarily entered his guilty plea and his trial counsel’s conduct did not prejudice Shue because the district court had sentenced him in accordance with the plea agreement.

 (Mike Frisch)

February 1, 2016 | Permalink | Comments (0)

Reasons Unknown But Lawyer Suspended

The Vermont Supreme Court has imposed an interim suspension of an attorney, who had stipulated to the suspension order. had the story

A well-known lawyer is not allowed to practice for now.

The Supreme Court suspended William O'Brien's law license while professional conduct violations are investigated. O'Brien is no longer the Winooski City Attorney, but served in that role for many years. He has also been the attorney for the Burlington Catholic Diocese.

The order says there is sufficient evidence that O'Brien violated regulations and poses a substantial threat of potentially harming client’s cases. It is not clear what launched the investigation or the nature of the alleged violation, but the order also freezes his finances.

We reached out to O'Brien for comment but have not heard back. The Burlington diocese says he resigned as its attorney Tuesday.

(Mike Frisch)

February 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Talking To Represented Co-Defendant

The Georgia Supreme Court ordered a public reprimand for a Rule 4.2 violation.

Eddings has been a member of the Bar since 2002. He admits that he was held in contempt of court by the Superior Court of Muscogee County, Georgia, for communicating with persons represented by legal counsel without the prior consent of said counsel, and he admits that his conduct violated Rule 4.2. In mitigation of discipline, Eddings asserts that he had no selfish or dishonest motive and engaged in the communications on the eve of trial when an answer for a plea recommendation deadline was imminent, and only after unsuccessful attempts to contact the counsel of the represented individuals. He also states that he has no prior discipline; that during this period he was under prolonged extreme stress from his efforts to clear his name in the wake of a still pending multi-year Bar disciplinary case also involving investigations by private corporations and the FBI; that he cooperated fully with the disciplinary authorities; that he submitted several letters of reference in support of his petition; and that he has great remorse for his conduct and has apologized, both publicly and privately. In aggravation of discipline, the special master noted a pattern of misconduct, because the underlying motion for contempt includes as an exhibit another order of contempt in a different criminal case where Eddings talked to a co-defendant of his client without the prior knowledge and consent of the co-defendant’s counsel.

 The court in a footnote explains that the FBI investigation involved a "cooking of [his law firm] books" by his wife. (Mike Frisch)

February 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)