Thursday, January 18, 2018

A Bridge Too Near

The District of Columbia Board on Professional Responsibility recommends that Bridgegate defendant William Baroni be disbarred for conviction of a crime of moral turpitude per se.

Among other offenses, Respondent was convicted of wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 2, 1343 and 1349. The Court has determined that these are crimes of moral turpitude per se. In re Bryant, 46 A.3d 402, 402 (D.C. 2012) (per curiam) (wire fraud); In re Schainker, 871 A.2d 1206, 1206 (D.C. 2005) (per curiam) (conspiracy to commit wire fraud). “When an attorney is convicted of multiple offenses, disbarment is imposed if any one of them involves moral turpitude per se,” and thus, we need not analyze the other offenses of conviction. See In re Hoover Hankerson, 953 A.2d 1025, 1026 (D.C. 2008) (per curiam).

Respondent’s appeal of his conviction does not delay the Board’s recommendation in this matter; however, the Court should defer final action until the appeal is decided. See In re Hirschfeld, 622 A.2d 688, 690 (D.C. 1993) (withholding action on Board report and recommendation until appeal of conviction is concluded).

He has been serving an interim suspension since October 17, 2017. (Mike Frisch)

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

Double Disbarment For Billing Deceit

The Oklahoma Supreme Court has imposed reciprocal disbarment based on an identical Colorado sanction

The Supreme Court of Colorado determined that Respondent violated Colorado Rules of Professional Conduct (Colo. RPC) 8.4(c) and 1.15A (as well as the former Colo. RPC 1.15(b)), by committing knowing conversion / misappropriation.2 The court determined Respondent knowingly misappropriated roughly $57,338. The amount in question was billed to Respondent's firm Kleinsmith & Associates, PC (in which he was a solo practitioner) by First American Title Company, LLC and First American Title of Montana, Inc. (collectively, First American) for title services in connection with Respondent's representation of a client, U.S. Bank. Respondent obtained the $57,338 from his client U.S. Bank by billing for "title commitment" but proceeded to use the funds U.S. Bank gave him for his firm's unrelated operating expenses rather than paying First American the amount it was owed. First American subsequently filed a lawsuit and obtained a judgment for $55,782 against Respondent's firm, which it has been largely unable to collect.

No comfort here

The record before this Court is clear that Respondent engaged in deceitful billing practices that resulted in his client paying $57,338 for First American's services. That amount was then knowingly misappropriated by Respondent and instead used for other purposes, causing substantial harm to First American. The conduct for which Respondent was disbarred in Colorado warrants disbarment in Oklahoma, given Respondent's failure to contest the Complainant's recommendation, the lack of mitigating circumstances, and Respondent's prior disciplinary history. It is hereby ordered that Respondent Philip M. Kleinsmith be disbarred and his name stricken from the roll of attorneys. As Complainant did not file an application to recover the costs of this disciplinary proceeding, no costs are assessed.

(Mike Frisch)

January 18, 2018 in Associates | Permalink | Comments (0)

Another Marijuana-Related Disbarment

The Florida Supreme Court has disbarred an attorney less than five years after his admission

 On June 15, 2016, The Florida Bar filed a complaint against Respondent Christensen. The complaint was referred to a referee, and the referee submitted a report and recommendation on March 30, 2017. In his report, the referee found that in 2013, less than three months after being admitted to The Florida Bar, Respondent founded IJC Law Group, P.A., and began offering legal services and advice to clients. At the time, Respondent had no training in the area of medical  marijuana. Six months later, Respondent formed Health Law Services (HLS), and five months after that, incorporated Cannabinoid Therapy Institute (CTI). Respondent listed IJC Law Group, P.A., as CTI’s registered agent and nonlawyer Christopher Ralph—a self-professed expert in the medical marijuana industry—represented himself as CTI’s director. Ralph was also the "Legal Administrator and Consultant" for HLS.

Essentially, the referee found that Respondent charged clients $799 for a doctor’s visit through CTI, and if the doctor found a medical necessity for the client to use marijuana, Respondent, via HLS, provided the client with an "Official Legal Certification" and patient identification card stating that the client had received a marijuana prescription. The "Official Legal Certification" purported to advise law enforcement of the client’s right to cannabis as a medical necessity. Respondent advised his clients, and his clients believed, that based on Florida law, the clients had a right to possess, use, and grow cannabis due to medical necessity and that they were protected by the affirmative defense of medical necessity. Respondent did not tell his clients that this affirmative defense would not apply, if at all, until after the clients were arrested, charged, and prosecuted.

The referee found that several of Respondent’s clients were arrested and prosecuted after following this advice. Respondent attempted to represent two of these clients in the criminal proceedings, but was subsequently disqualified on motion by the State for conflict of interest. Respondent refused to refund the attorney’s fees he charged, but was eventually ordered to do so when the trial court granted the clients’ motion for disgorgement of attorney’s fees. Respondent failed to comply with the order and filed an untimely notice of appeal, which was ultimately dismissed. He also failed to respond to the trial court’s order to show cause and failed to appear at the show cause hearing. The court granted the motion for order to show cause and issued a warrant for his arrest.

 Sanction

We conclude Respondent’s misconduct falls into this [disbarment] category. Respondent erroneously advised his clients and provided them with legally meaningless "Official Legal Certifications" purportedly authorizing them to grow and use marijuana, based on determinations made by a physician not licensed to practice medicine in the State of Florida. Several clients who relied upon Respondent’s erroneous advice were arrested and criminally prosecuted, and their lives were devastated. Further, during the criminal proceedings pertaining to the clients and during the proceedings in this disciplinary matter, Respondent continued to insist on the correctness of his clearly erroneous legal positions, until he was ordered to show cause to this Court why he should not be disbarred. We will not tolerate such misconduct by members of The Florida Bar.

(Mike Frisch)

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

A Lawyer Not A Mediator

A censure has been imposed by the New York Appellate Division for the Third Judicial Department

The charges

According to petitioner, respondent improperly prepared and urged the execution of a child custody agreement purporting to settle a dispute between parents and grandparents regarding the care of the parents' minor children. All of the parties to the agreement were not only respondent's friends to a greater or lesser extent, but they were also persons that respondent was contemporaneously representing as clients in separate legal matters unrelated to the custody dispute. After the grandparents commenced a proceeding in Albany County Family Court, respondent prepared the custody agreement unsolicited, without any input from the respective parties, and without giving them the opportunity to review the matter in advance of a meeting that he had arranged at his law office for the purpose of presenting the agreement. Although respondent inserted a provision into the agreement stating that he was not representing any of the parties with respect to the proposed custody arrangement, the petition of charges asserts that he, nevertheless, explained, discussed and provided legal advice at the meeting regarding the custody agreement. After the parties were persuaded to execute the agreement notwithstanding the father's initial objection, the dispute between the parties intensified and the grandparents, represented by separate counsel, did not settle the pending Family Court matter as provided in the agreement.

 Complaints against respondent were thereafter filed by the parents, who asserted that respondent pressured them into executing a one-sided agreement that adversely affected their custody rights, without an adequate explanation of the risks of signing such an agreement, or providing a reasonable opportunity to seek independent counsel. Respondent served an answer denying the allegations and a Referee was appointed to hear and report. A full hearing was conducted in June 2017, at which respondent was represented by counsel. The Referee thereafter issued a report sustaining the petition of charges. Respondent's claims that he acted only as a disinterested mediator and that the parties to the agreement waived or consented to any conflict of interest were rejected (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 [b]).

 Sanction

Turning to the issue of the appropriate disciplinary sanction, we have considered respondent's submissions in mitigation from colleagues and clients attesting to his good character. We further note the lack of proof that respondent's misconduct stemmed from any venal intent. We have also heard from petitioner and observe that respondent's misconduct is aggravated by, among other things, his significant disciplinary history, which includes a two-year stayed suspension upon findings of conversion and escrow account mismanagement (Matter of Mann, 284 AD2d 719 [2001]), which was later terminated upon respondent's application (Matter of Mann, 9 AD3d 676 [2004]), and private discipline in the form of two admonitions and a letter of caution (see Rules of App Div, 3d Dept [22 NYCRR] former § 806.4 [c] [1] [i], [ii]). Accordingly, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, we find that, under the circumstances, respondent should be censured

(Mike Frisch)

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

Former DC Councilman Consents To Disbarment

The District of Columbia Court of Appeals has accepted the consent disbarment of a former city councilman Harold E. Brazil.

The basis for the consent is not disclosed per D.C. rules. 

He had been informally admonished in 2014 and had a 2009 criminal conviction for this incident

Former D.C. Council member Harold Brazil was convicted yesterday of assaulting the manager of a Georgetown tattoo shop in a nighttime brawl last fall.

Brazil stood quietly as D.C. Superior Court Judge Jennifer M. Anderson announced her verdict. He had just one statement before sentencing: "I request no lockup."

The 60-year-old lawyer, a council member from 1991 through 2005, could have been jailed for as long as six months on the misdemeanor charge. The judge gave him a 90-day term but suspended the time on the condition that he completes six months of unsupervised probation.

Brazil was accused of attacking the manager of the Jinx Proof Tattoo Parlor during an Oct. 9 fight at the shop, in the 3200 block of M Street NW. Prosecutors accused him of acting in a drunken rage. Brazil said that he was the victim and that the manager and two shop employees beat him.

He said he plans to appeal.

The judge, who heard testimony in a trial last month, ruled that Brazil started the fight, giving more credibility to the accounts of the tattoo parlor employees than to Brazil and the two women who were with him that night.

"This is a situation that got out of control," she declared.

Although Anderson questioned much of the testimony, some facts were not in dispute: Brazil, his secretary and a female friend had drinks that evening at Smith and Wollensky. Then they headed to the tattoo parlor. The friend went to the back of the store to get a tattoo. When Brazil's secretary tried to check on her, the shop's manager objected and pointed to a sign that said only patrons getting tattoos were permitted in that area. Brazil then got into the middle of a dispute.

The manager, Francis Bradley Payton V, told police that Brazil hit him, an allegation that led to Brazil's arrest that night. During his testimony, Payton said Brazil swung at him and missed.

Brazil testified that he was simply coming to his secretary's aid when he was attacked by Payton and two shop employees, thrown to the floor, punched, kicked and put in a chokehold. Brazil, complaining of pains in his head, neck and right knee, was taken to a hospital. He testified that he "almost got killed."

Conflicting accounts also emerged about Brazil's state. During the altercation, Brazil urinated on himself, which prosecutors said was a sign of his drunkenness.

In his testimony, Brazil denied being drunk and said he had had two glasses of wine. His attorney, G. Allen Dale, said it was the beating, not the wine, that caused Brazil to lose control of his bladder.

Brazil, who is black, also said the shop's manager, who is white, called him a racial epithet. The manager denied making such remarks, and no witnesses alerted police of such a statement.

In rendering her decision, Anderson recounted how she was struck by the testimony of Petra Ann Nikolow, Brazil's friend and defense witness who was getting her name tattooed on her shoulder that night. During the trial, Nikolow described Brazil as a gentle and kind "teddy bear" and testified that he was beaten by the shop employees. But when police arrived, Nikolow told the officers in a statement that Brazil "overreacted."

After the hearing, Brazil said he was disappointed with the outcome.

"I'm incredulous that she found them more credible than me," Brazil said, adding that he wished the case had been heard by a jury instead of a judge. Judges typically hear such misdemeanor trials.

Brazil also called the entire case a "waste of taxpayers' money."

(MIke Frisch)

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

Wednesday, January 17, 2018

New Mexico Estops New York

A legal malpractice claim was properly dismissed, according to a recent decision of the New York Appellate Division for the First Judicial Department

Plaintiff's claims in this legal malpractice action are barred by the doctrine of collateral estoppel (see Buechel v Bain , 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; CPLR 3211[a][5]). There is an identity of issues necessarily decided in plaintiff's related malpractice action against defendant's cocounsel in New Mexico and decisive of this action, and plaintiff does not dispute that it vigorously contested cocounsel's successful motions for summary judgment dismissing the New Mexico action.

We note also that the complaint fails to state a cause of action (CPLR 3211[a][7]). The allegations not only are sheer speculation but also are precluded by plaintiff's settlement of the underlying action for reasons other than defendant's alleged malpractice (see Rodriguez v Fredericks , 213 AD2d 176, 178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]).

(Mike Frisch)

January 17, 2018 | Permalink | Comments (0)

No Mental Health Evaluation Required

A 60-day suspension followed by two years probation has been ordered by the Minnesota Supreme Court

MacDonald began representing S.G. in 2013, as her fourth attorney of record, in a family-law matter. Among her first actions, MacDonald filed a motion challenging the constitutionality of Minnesota’s family-law statutes in response to one of the court’s orders. MacDonald’s motion relied exclusively on S.G.’s rendition of the facts—specifically, that the order was the result of an ex parte communication between the district judge and opposing counsel. It turns out, however, that the district court entered the order by mutual agreement of the parties’ attorneys. Indeed, S.G.’s attorney at the time even drafted the order. The court denied MacDonald’s motion and explained that it was predicated upon an inaccurate factual assumption.

As the matter advanced toward trial, MacDonald directed an associate to subpoena S.G.’s three prior attorneys to produce their bills and appear at trial because she believed that their testimony was necessary to lay the foundation for a request for attorney fees. MacDonald never contacted the attorneys, however, to ask whether the bills could be provided without a subpoena, nor did she contact opposing counsel to determine if a stipulation could be reached. Opposing counsel later testified that she would not have stipulated to the amount of the bills.

S.G.’s former attorneys moved to quash the subpoenas. The court granted their motions, concluding that MacDonald failed to take reasonable steps to avoid placing an undue burden on the attorneys. See Minn. R. Civ. P. 45.03(a) ("A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena."). MacDonald was personally sanctioned in the amount of $6,202.50 for her conduct. See Minn. R. Civ.  P. 45.03(d) (providing for "reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents").

MacDonald appealed the order, but the court of appeals affirmed, reasoning that MacDonald could have established the amount of attorney fees using alternative means, such as having her client testify to the amount of fees she personally paid to her attorneys. The referee concluded that MacDonald’s use of the subpoenas violated Minn. R. Prof. Conduct 3.1,1 3.4(c),2 4.4(a),3 and 8.4(d).4

During the hearing on the motions to quash, MacDonald interrupted the judge several times. When the judge told her that she was being disruptive, prompting him to call a deputy forward, she replied, "[t]he rules are that an attorney can’t talk in court?" MacDonald also interrupted the judge dozens of times during other hearings in the case. The referee concluded that MacDonald’s disruptive conduct during these hearings violated Minn. R. Prof. Conduct 3.5(h).

 On the day that S.G.’s trial was set to begin, MacDonald filed a civil-rights lawsuit in federal court on S.G.’s behalf against the district judge personally, not in his official capacity. MacDonald then moved for the judge’s recusal from the case based on the pending federal lawsuit against him. The judge denied the motion, at which point MacDonald stated, "[a]nd you are telling me that you can be impartial in this trial, which you haven’t done since day one." The referee found that this statement violated Minn. R. Prof. Conduct 8.2(a)6 and 8.4(d), because it was made with reckless disregard for the truth.

Because she had expected the judge to recuse, MacDonald admitted that she was "not ready to proceed" with the trial. She called only one witness, referred to the proceeding as a "pretend trial," and interrupted the court at least half a dozen times. The referee concluded that her lack of preparation violated Minn. R. Prof. Conduct 1.1,7 and that her repeated interruptions violated Minn. R. Prof. Conduct 3.5(h).

Before the official start of the second day of trial, but after the judge had briefly taken the bench, MacDonald approached the court reporter and accused her of inaccurately recording the prior day’s testimony. MacDonald announced that, if the court reporter was unwilling to accurately record the events at trial, she would do so herself. MacDonald then began taking pictures of the courtroom. Court deputies approached MacDonald and reminded her that she knew not to take pictures in the courtroom. See Minn. Gen. R. Prac. 4.01 ("[N]o pictures . . . shall be taken in any courtroom . . . during a trial . . . ." (emphasis added)); Order Regarding Cameras and Other Recording Equipment in Court Facilities (Dakota Cty. Dist. Ct. July 1, 2005) (providing, in a standing district-court order adopted "pursuant to Rule 4 of the General Rules of Practice," that "[n]o pictures . . . shall be taken in any courtroom . . . ." (emphasis added)).

Later that morning, during a recess, the deputies again approached MacDonald and advised her that she would receive a contempt citation for taking photographs in the courtroom. MacDonald initially cooperated with the deputies by accompanying them to a holding area to complete the necessary paperwork, but thereafter refused to give the deputies her full legal name, date of birth, and address. When asked for her name, for example, she replied, "[y]ou know my name." The deputies tried for approximately 15 minutes to obtain basic biographical information for the citation, but MacDonald refused to cooperate. Eventually, the deputies placed her in custody.

The deputies asked MacDonald to remove her jewelry, glasses, and shoes, and to submit to a pat-down search. The deputies then placed MacDonald in a holding cell. When the time came for her to return to the courtroom, MacDonald refused to stand up or walk to the courtroom on her own. The deputies therefore placed her in a wheelchair and handcuffed her hands to a belt that they had secured around her waist to bring her to the courtroom. Video footage of the incident shows that the deputies attempted to return MacDonald’s shoes, but she refused to put them on.

While MacDonald was in custody, S.G. retrieved MacDonald’s files, including her trial materials, and left the courthouse. Once MacDonald returned to the courtroom, the judge reminded her that she had an obligation to her client and repeatedly inquired about how she wished to proceed, including offering her numerous chances to contact her client and retrieve her files. Each time, MacDonald refused to respond or otherwise seek an accommodation. Her involvement in the remainder of the trial was minimal. In fact, MacDonald agrees that she did not competently represent her client, but she testified at the disciplinary hearing that her inadequate representation was due solely to her illegal arrest. She maintains that there was "nothing [she] could say or do" to correct the situation and that she "didn’t do anything wrong."

The referee found that MacDonald’s actions, both before and after her arrest, were an effort to produce a mistrial or support an appeal in S.G.’s case, or to gather evidence for the federal lawsuit against the judge. The referee concluded that MacDonald’s conduct violated Minn. R. Prof. Conduct 1.1, 3.4(c), 3.5(h), and 8.4(d). The referee also concluded that MacDonald’s separate failure to perfect an appeal in S.G.’s case, by neglecting to serve the notice of appeal on the guardian ad litem in a timely fashion, violated Minn. R. Prof. Conduct 1.1.

MacDonald subsequently amended the complaint in the federal lawsuit to include the facts surrounding the photo-and-arrest incident. The complaint alleged that the judge had retaliated against S.G. and MacDonald, compromised the Minnesota Court Information System (MNCIS), "usurped" case files with the assistance of opposing counsel, signed documents that he knew were false, and acted without jurisdiction or legal authorization. The federal district court dismissed all of the claims in the complaint, describing them as "futile" and noting that "nothing in the record supports the[m]." When asked at the disciplinary hearing about the basis for her allegations, MacDonald responded, "[t]he record speaks for itself." The referee concluded that MacDonald violated Minn. R. Prof. Conduct 3.1, 8.2(a), and 8.4(d) by making recklessly false allegations against the judge that no reasonable attorney would have made based on the evidence available.

In addition to filing a federal lawsuit against the district judge in S.G.’s case, MacDonald wrote a letter to the Board on Judicial Standards complaining about the judge’s behavior and asserting that he had acted unethically during S.G.’s trial. In total, she wrote four letters to the Board, each impugning the judge’s integrity and repeating the allegations from the federal lawsuit. She sent copies of these letters to numerous elected officials and made similar remarks in letters to other attorneys. The referee concluded that MacDonald’s statements were false, made with reckless disregard for the truth, and violated Minn. R. Prof. Conduct 8.2(a) and 8.4(d).

The court majority rejected a number of defenses including an asserted First Amendment right to criticize judges but declined to impose a mental health evaluation.

Although we have decided to place additional conditions on MacDonald during her probation, we do not accept one condition proposed by the referee. The referee recommended, and the Director agrees, that we order MacDonald to undergo a mental-health evaluation and follow all of its recommendations as a condition of her probation. Not only is there limited precedent for imposing such a condition when the attorney has not placed her mental health at issue in the disciplinary proceeding, but the referee here has made no factual findings that support it.

Justice McKeig dissented on this point and would impose a six-month suspension.

Today, the court hesitates to impose sufficient discipline, and it does so at the expense of protecting the public. Although MacDonald portrays herself as a victim, the true victim in all of this is the public. I respectfully disagree with the court’s decision to suspend MacDonald for a mere 60 days and its reluctance to require a mental-health evaluation. Our duty to the public demands more of us, and more of respondent. I conclude that a 6-month suspension, including a petition for reinstatement, and a 2-year probation term, including a mental-health evaluation, is warranted. On these grounds, I respectfully dissent.

Ballotpedia reports that the attorney ran for a seat on the Minnesota Supreme Court. (Mike Frisch)

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

Misconduct Alleged Against Attorney - Arbitrator

The Illinois Administrator has filed a complaint alleging misconduct by an arbitrator of a law firm dispute.

Background

On May 21, 2007, the principals in the Touhy & Touhy law firm ("Touhy principals") filed a complaint in the Circuit Court of Cook County against former Touhy firm attorneys Ryan Stephan ("Stephan") and James Zouras ("Zouras"). That matter was docketed as Touhy & Touhy, et al. v. Stephan, et al., case number 07 CH 13552 ("Stephan/Zouras matter"). On December 30, 2010, the Touhy principals filed a related complaint against Erik Langeland (an attorney practicing in New York who had referred cases to the Touhy firm ("Langeland")). The case was docketed as Touhy & Touhy, Ltd. v. Langeland, case number 10 L 14823 ("Langeland matter"). Both lawsuits related, in part, to the Touhy principals' allegations that Stephan and Zouras breached their fiduciary duties to the firm by concealing from the Touhy firm cases that had been referred to the firm by Langeland so that they could handle them outside of the firm (including cases referred to as the Yang and Ferko matters) and taking the fees in those cases for their own benefit. Stephan and Zouras had also filed a counterclaim against the Touhy principals for the payment of referral fees on a series of cases they had handled while employed at the Touhy firm.

In March of 2013, the Stephan/Zouras and Langeland matters were consolidated by the court.

On November 24, 2014, Stephan and Zouras and the Touhy principals signed a written arbitration agreement to submit the Stephan/Zouras matter for arbitration before Respondent. That arbitration agreement provided, in part, that "[t]he parties and the Arbitrator are satisfied as to the ability of the Arbitrator to act as a neutral and unbiased participant in the Proceeding," that Stephan and Zouras and the Touhy principals would evenly split the cost of arbitration, and that Respondent would be paid at the rate of $325 per hour.

The charges allege that the attorney had pre-judged the matter and engaged in dishonest ex parte communications that prejudiced the administration of justice. (Mike Frisch)

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

Disabled And Suspended

The Indiana Supreme Court imposed sanctions on an already-suspended attorney

 In six different criminal or family law cases, Respondent generally failed to adequately communicate with his clients, missed several court hearings and conferences, and failed to appropriately advance his clients’ cases or otherwise represent their interests. In two of these cases, Respondent’s shortcomings prompted the initiation of show cause proceedings against him. In a third case, Respondent was found in contempt and jailed for five days as a sanction.

Respondent has admitted that he had severe medical issues during some or all of these representations that impaired his ability to represent his clients. Respondent currently is under an indefinite disability suspension imposed in separate proceedings.

Sanction

The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 90 days, without automatic reinstatement, effective immediately. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement in this matter, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(18)(b). The parties further agree that, in order to be fully reinstated to the practice of law in this state, Respondent will be required to complete the reinstatement process both in this matter as well as in the disability matter.

(Mike Frisch) 

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

Tuesday, January 16, 2018

Consequences Of Magistrate - Sheriff Romance

The South Carolina Advisory Committee on Standards of Judicial Conduct opines on the implications of a dating relationship

RE: Propriety of a magistrate holding bond hearings, signing warrants and presiding over preliminary hearings where the magistrate is dating the county sheriff.

FACTS

A county magistrate just began dating the county sheriff. The magistrate is the presiding judge over Bond Court and the magistrate’s duties include: setting bonds twice a day, signing warrants, signing search warrants, and presiding over preliminary hearings. The judge inquires as to under which circumstances the judge must recuse himself/herself and/or when the judge would need to disclose the relationship.

CONCLUSION

The judge shall disqualify himself in a proceeding where he or she has a potential personal bias, such as handling any matters in which employees of the sheriff, whom the judge is dating, appear as witnesses.

OPINION

A judge must disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned. Rule 501, SCACR, Canon 3E(1).1 Furthermore, the judge must disqualify himself/herself if the judge has a personal bias concerning a party. Rule 501, SCACR, Canon 3E(1)(a). In 17-2002, this Committee addressed a situation in which a magistrate was dating a police officer who might be required to bring matters, such as arraignments, bond hearings, and warrant requests, before the magistrate when the municipal judge was unavailable. We determined that the relationship between the judge and his girlfriend could affect the outcome of the proceedings and that the magistrate should recuse himself in any matters brought before him by his girlfriend. 

After discussing earlier opinions

In this case, the magistrate is dating the sheriff. While it may be unlikely that the sheriff personally appears before the magistrate, the sheriff’s employees will regularly appear before the magistrate for bond hearings, warrant requests, and other matters. Thus, this situation can be distinguished from Opinion 17-2002 in which the judge was dating a police officer, but not the chief of police or the sheriff (i.e., a person whose employees will regularly appear before the Court). The Committee’s previous opinions finding no conflict either involved a non-supervisory law enforcement officer, no overlap in jurisdiction, or some other distinguishing factor. This situation presented here is more comparable to Opinions 1-2005, 8-2007, and 1-2009 in which the judge would have to frequently recuse himself or herself because the judge’s spouse or his/her employees would regularly appear in the judge’s court. Even if the judge and the sheriff are not married, their relationship could lead to the judge’s impartiality being questioned and would require disqualification in any cases in which the sheriff and/or the sheriff’s employees appeared.

(Mike Frisch)

January 16, 2018 in Judicial Ethics and the Courts | Permalink | Comments (1)

Towel Thrown In

A former Akin Gump attorney has consented to disbarment in Maryland.

Abovethelaw reported last February

Biglaw bombshell alert: Jeffrey Wertkin, an Akin Gump attorney who joined the firm last year after a successful stint at the Justice Department prosecuting cases under the False Claims Act, was arrested on January 31 by the FBI (the arrest documents were unsealed on February 6). Wertkin was charged with obstruction of justice and contempt of court. He stands accused of trying to sell the details of a whistleblower lawsuit for $310,000 to an employee of a company that was under investigation by the Department of Justice.

According to the allegations, Wertkin — dressed in a wig, and going under the name “Dan” — was arrested in the lobby of a Cupertino, California hotel. He reportedly told the arresting agent, “My life is over.”

As noted by Bloomberg Technology, lawsuits under the False Claims Act have a unique process, which Wertkin allegedly sought to exploit (though it isn’t clear how Wertkin got a hold of the complaint):

The arrest highlights the unusual process involving lawsuits under the False Claims Act, which allows whistle-blowers to sue companies on behalf of the U.S. government. The lawsuits, which are filed under court seal and given to the Justice Department, typically claim a company cheated taxpayers. The U.S. may investigate for months or years before notifying the company of the claims. Whistle-blowers can share in any recovery, and some have collected tens of millions of dollars.

The FBI’s investigation began when they were alerted by an employee of the company targeted by the lawsuit. The employee received a voicemail from “Dan” offering details of the suit in exchange for a “consulting fee.”

The employee agreed to secretly record calls to Dan for the FBI. On Dec. 22, Dan said he would provide the full complaint for $300,000, the FBI said. Two weeks later, Dan suggested he get paid in untraceable bitcoins, and said buying the complaint would help the company “get out ahead of the investigation.” The employee unsuccessfully sought to negotiate a cheaper price for the sealed lawsuit, according to the court filings.

The price was eventually settled at $310,000 (Wertkin allegedly wanted travel costs covered), and when he went to make the drop-off, he was arrested.

An ATL source had this to add about Wertkin: “He was DOJ lead on a number of my cases. He was not the most liked person, but he always purported to be a very ‘by the book’ guy. So this is pretty shocking.”

Akin Gump’s statement about the arrest is suitably chagrined and notes they have fired Wertkin:

“We are shocked and deeply troubled by the conduct alleged in the charges filed against Mr. Wertkin,” an Akin Gump spokesman said in an e-mailed statement. “Honesty and integrity are at the core of our values and our client relationships. Immediately upon learning of these charges, we took swift action and Mr. Wertkin is no longer with the firm.”

Wertkin has been released on $750,000 bail.

(Mike Frisch) 

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

Monday, January 15, 2018

"I Mean No Disrespect"

Inappropriate communications with Law Society staff and adjudicators led to findings of misconduct and a scheduled penalty hearing by a Tribunal Hearing Division of the Upper Canada Law Society

The Law Society alleged that Mr. Robson engaged in professional misconduct by engaging in abusive and unprofessional communications with the Law Society, Law Society Tribunal members and Tribunal staff, in breach of the Law Society’s Rules of Professional Conduct. Mr. Robson did not deny the communications were his. In defence, he relied primarily on his diagnosed mental illness to excuse his behaviour.

When taken in their entirety, Mr. Robson’s communications with Law Society prosecutors, Tribunal staff, and panel members are abusive, offensive, and unprofessional as alleged. They are replete with: demeaning personal comments; derogatory descriptions; unsupported allegations of improper conduct, bias and incompetence; offensive comparisons between his treatment by the Law Society with the experiences of indigenous children in residential schools, the treatment of Jews by the Nazis during World War II; and the sexual abuse of children by Catholic priests. His communications with the public malign the courts and one of its judges, without any reasonable basis to do so.

The Law Society also alleged and proved that Mr. Robson: failed to co-operate with the Law Society by failing to co-operate with a Law Society investigation and to respond fully and completely when he was requested to do so; failed to pay a mediator’s account when he had undertaken to do so; and communicated in an offensive and unprofessional manner with another lawyer.

This Tribunal is sympathetic to licensees who suffer from mental illness and recognize the courage it can take to face this diagnosis. In this case Mr. Robson was diagnosed with Stress Response Syndrome (“SRS”) and major depressive disorder. We looked carefully at the evidence to determine whether Mr. Robson’s mental illness prevented him from fulfilling all of his obligations as a lawyer during the time period in question, which is the test he must meet. The psychiatric evidence does not support that conclusion. It does not support the existence of mental illness at the relevant time or that the mental illness caused him to be incapable of meeting his obligations from January 2008 to March 2016.

Mr. Robson asked that this conduct application be converted into an Invitation to Attend (“ITA”). Mr. Robson has engaged in all of the professional misconduct that was alleged in the Notice of Application. The misconduct is serious in nature. While Mr. Robson has been diagnosed with a mental illness, we do not conclude that his illness materially contributed to his misconduct. As a result, we deny his request.

An example from a lengthy course of events

 In October 21, 2014, he wrote, “Kindly do not have [prosecutor] confront me. I hate liars.” In an October 23, 2014, e-mail to one of the prosecutors, he threatened, “I am coming after you and [second prosecutor] and the dirty woman behind you and others as required full blown.”

In October 28, 2014 correspondence to the prosecutor and the Tribunal, after his licence had been restored, Mr. Robson, in an e-mail, described the discipline department as a “very serious, ragingly virulent cancer operating within the body of the [Law Society].” In November 2014, he authored correspondence to the hearing panel chair (whose decision had been overturned) saying he had no business sitting on any other discipline matter and that each of the panel lacked critical thinking skills. He asked for their undertakings not to act again as members of a discipline panel. He ended by saying, “I mean no disrespect.”

 In e-mails in mid-November, Mr. Robson again refused to deal with one of the prosecutors whom he described as “dishonest” and advised of the demeaning nicknames that he had assigned to two adjudicators. He advised a client in an e-mail dated November 28, 2014, that the Law Society had no “correct moral centre,” that it was, “a disgrace to the entire country” and “a hillbilly organization” whose “abuse is readily deferred to by the courts.”

 He wrote that the Law Society was “very similar to Catholic priests being able to get away with raping young boys” and that it was “a monster from a Stephen King novel, a rabid putrefying SARS like scum undetected and allowed to migrate because of lack of proper oversight.”

In e-mails to third parties on December 4, 2014, Mr. Robson extended his insults and bias claims about the Law Society to the Superior Courts. In one e-mail, he said his life had been destroyed by the court and judges that he described as accomplices to theft. He described one judge as a “disgrace to the bench.” In subsequent e-mails, he continued his abuse of the Chair of the Tribunal, calling him by derogatory names.

Later

On September 3 and 9, 2015, Mr. Robson communicated with the Law Society’s investigation counsel, in what would become this matter, in a threatening and derogatory manner. He called her a “wastrel” and accused her of having an improper and conspiratorial manner. He advised that proceedings against her personally would be initiated shortly.

In November 2015, Mr. Robson complained about the inappropriate dress of the chair of the panel, “The event was not a motor cycle mamma fest or a party at a local pick up joint. Kindly ensure that the panelists dress appropriately in the future.” When the complaint was rejected as unfounded, Mr. Robson reiterated his position, maligned opposing counsel who supported the chair’s dress as appropriate and accused the Law Society of deception when it declined to send the complaint to the panel chair saying the Law Society “disgracefully attempted to mislead me by saying that the subject panel was functus.”

 The panel rejected defenses and expressed concern about his attitude toewards his behaviors. 

At the same time, Mr. Robson did not resile from some behaviour and comments. He maintained that he was justified in comparing his treatment by the Law Society to the treatment of indigenous children in residential schools, to the treatment of Jews in Nazi Germany and to the abuse of young boys by Catholic priests. He could not, even after his diagnosis and treatment, admit that his situation did not compare. Nor could he admit that it was inappropriate to respond to opposing counsel’s settlement offer by telling him to “Fuck Off.” He also refused to admit that he had an obligation to pay a mediator’s account that he had undertaken to pay...

In our view, this conduct application should not be converted to an invitation to attend as asked. To do so would usurp the prosecutorial discretion exercised by PAC. The misconduct is sufficiently serious that an invitation to attend would be inappropriate. The evidence as to mental illness is not such that diversion from discipline is appropriate.

A penalty hearing will be held. (Mike Frisch)

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

The Uninvited (Snowstorm Trips)

A Maine Grievance Commission Panel imposed a reprimand of an attorney for neglect and related violations.

Mr. Boucher’s complaint involves Attorney Lunn’s neglect and failures to communicate with proper responses to the requests of his client, Mr. Boucher, regarding the status – including the retainer balance – of the two related legal matters Mr. Boucher understood he had hired Attorney Lunn to undertake against his neighbor.

In that regard, in August 2013 Mr. Boucher had met with Attorney Lunn to discuss two different, but related matters: 1). To pursue a Protection from Harassment action; and 2). To possibly file a civil damages action. Each matter concerned Christopher Sabine’s (Mr. Boucher’s neighbor) misuse of his skidder and intentional “water damage” (from snow plowing) to Mr. Boucher’s property.

Mr. Boucher’s grievance focused on Attorney Lunn’s lack of proper response(s) to his requests for status and progress updates about those matters.

Mr. Boucher’s requests to Attorney Lunn concerning the status of $5,000.00 retainer amount Mr. Boucher had paid to Attorney Lunn were likewise not properly answered by Attorney Lunn.

Mr. Boucher further claimed that for more than 3  years Attorney Lunn failed to take steps or efforts to have his Protection from Harassment action filed with the court.

Attorney Lunn’s initial written response to Bar Counsel’s investigative inquiry claimed that he did not feel Mr. Boucher had much of a case. However, he failed to include appropriate confirmation that he had actually ever communicated and properly informed Mr. Boucher that he would not pursue his matter(s), i.e. that Mr. Boucher would need to and should consult with other counsel.

Attorney Lunn agrees he failed to ever issue any declination letter to Mr. Boucher or otherwise properly confirm to him that he was not going to represent him regarding either matter, i.e., the Protection from Harassment or the “snow plowing.” Attorney Lunn now agrees that such conduct by him was in violation of Rules 1.3 (diligence) and 1.4(a)(b) (communication) of the Maine Rules of Professional Conduct.

An arbitration hearing resulted in these findings

  1. Since Attorney Lunn never charged Mr. Boucher for the PFH issue, the Panel only focused its concerns and analysis on Mr. Boucher’s possible civil damages action(s) against Mr. Sabine;
  2. Attorney Lunn’s billing of Boucher for his many “uninvited (snowstorm) trips” to Mr. Boucher’s property was unreasonable;
  3. Attorney Lunn had also failed to ever clearly and fully inform Mr. Boucher about those snowstorm trips;
  4. Attorney Lunn failed to meet his burden of proof (which he had to meet due to the lack of a written fee agreement (see M. Bar R. 7(e)(12)) that the balance of $2,217.57 (from the $5,000.00 paid retainer) in fees and costs was reasonable and earned by him; and
  5. As a result, Attorney Lunn was then ordered by the FAC Award to refund that amount to Mr. Boucher, then being due within 30 days of his receipt of such notice (see M. Bar R. 7(g)).

The attorney paid the amount ordered and st ipulated to the sanction. (Mike Frisch)

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

Sunday, January 14, 2018

Rude And Condescending

The Florida Record reports that an attorney admitted in 1967 has been publicly reprimanded for "rude and condescending" treatment of a court officer.

From the referee's report on the conduct

On February 7, 2017, respondent and his nonlawyer employee were present in county court in Brevard County, Florida. Respondent's employee was assisting respondent by filling out a plea form for respondent to file in court that morning. While standing in the public gallery area of the courtroom, respondent's employee reached over the bar separating the public area from the rest of the courtroom and began looking through paperwork on a table. A Brevard County Sheriff's Office deputy assigned to the courtroom observed respondent's employee leaning over the bar and approached respondent's employee. The courtroom deputy asked if she could help, and respondent's employee advised she needed the last page of a plea form identifying herself as respondent's paralegal. The deputy informed respondent's employee that she had the wrong plea form in her hands. During this exchange, respondent interjected and advised the deputy that his paralegal was confused because the felony plea forms should not be kept in the courtroom where the misdemeanor criminal matters are handled. The deputy explained to respondent and his nonlawyer employee that felony proceedings occasionally took place in this particular courtroom. Respondent then began speaking loudly over the deputy and told her that if she wanted to say something she needed to direct her remarks to him because his paralegal was just doing her job. The deputy advised respondent that because his employee had reached over the bar, she needed to directly address the employee. Further, the deputy also needed to communicate that respondent's employee picked up the incorrect form and wanted to provide her with the correct form. In a raised voice and demeaning manner, respondent stated, "We don't really need your help. You're a guard here. OK. You're not the judge and you're not the supervisor." The deputy found respondent's tone to be rude and condescending toward her to the extent that it undermined her authority, especially in light of the fact that other people were present in the courtroom at the time on unrelated matters.

The sanction was imposed on consent, (Mike Frisch)

January 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 13, 2018

Empty Tank

The Altoona Mirror reported on a recent Pennsylvania consent to disbarment

Attorney Meghan Farrell Irwin, who narrowly lost a race for magisterial district judge in November, was disbarred Friday by the state Supreme Court.

The disbarment is “on consent” by Irwin, who has submitted her resignation, according to the court’s Disciplinary Board, which did not disclose the reason for disbarment.

The court disbarred her because of an allegation — not made by a client — in February 2017, that she performed with “lack of diligence on a matter,” Irwin said Friday.

The allegation was untrue, and she could have defeated it, she said. But she decided not to fight it because she is exhausted from the election campaign and her work as a lawyer, and because, if she lost the election, she was going to wind down her practice to focus on her family anyway, she said.

“In some ways, I feel relieved,” said Irwin, who has five children. “I feel like I don’t have anything left in the tank for a job I didn’t want to do anymore.”

The allegation was made to the court after she had announced her intention to run for election, and she believes it was made because of her campaign, Irwin said.

She declined to disclose who made the allegation, saying it was confidential.

If she had won the election, she could have served as a magisterial district judge despite the disbarment, she said, explaining that MDJs don’t need to be attorneys.

Asked why she didn’t fight the allegation, if only to clear her reputation, she said the public would still have known, “and people talk and form their opinions, no matter what my (actual) conduct.”

“I just wanted to end it,” she said.

The disbarment goes into effect Feb. 11, reflecting the standard 30-day grace period to enable disbarred lawyers to wrap up their practice, according to the Disciplinary Board.

Irwin has notified her outstanding clients about what has happened, referring them to her father, Tom, an attorney who practices in the same office.

She didn’t dismiss the idea of working again as a lawyer, saying she could apply for license reinstatement at some point, “if that’s what I want to do.”

“I wish it was not this way,” she said. “(But) I don’t have regrets.”

(Mike Frisch)

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

Illinois Potpourri

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

Among the cases resolved

Mr. Cardenas, who was licensed in 1995, was censured. He was convicted in the Circuit Court of Cook County of reckless conduct relating to an incident in which he removed his leather belt and used it to hit his then 14-year old daughter.

Ms. Cohen, who was licensed in 1978, was suspended for thirty days. During a four-year period when she had not registered to practice law and was thus removed from the Master Roll, she represented the City of Berwyn in approximately 100 different municipal ordinance proceedings before a hearing officer. The suspension is effective on February 2, 2018.

Mr. Meserow, who was licensed in 1985, was suspended for six months and until further order of the Court, with the suspension stayed in its entirety by a one-year period of probation. During a court proceeding, he shouted and criticized the presiding judge, then later filed a frivolous motion criticizing that same judge and falsely accused her of violating several provisions of the Code of Judicial Conduct.

Mr. Mora, who was licensed in 1968, was censured. While representing a client in a legal malpractice matter, he sought to sell his car and purchase a new one from a used car dealership. He entered into a business transaction with his client whereby Mr. Mora sold the old car to the client for its trade-in value, and the client agreed to co-sign Mr. Mora’s loan application for the new car so that he could obtain more favorable financing terms using the client’s better credit rating. Mr. Mora purchased the new vehicle with his client registered as a co-owner, and subsequently incurred various traffic tickets and late payments that led to an administrative judgment being entered against the client.

Mr. Niew, who was licensed in 1972, was censured. His wife, Kathleen Niew, an Illinois lawyer, was disbarred in 2013 for misappropriating $2.34 million belonging to a client who she represented in a real estate matter. After her disbarment, Mr. Niew failed to ensure that his wife no longer maintained a presence in their law office and he also failed to supervise his associate, to prevent that associate from aiding Ms. Niew in the unauthorized practice of law.

We had reported on the charges in the last listed matter. Mike Frisch)

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

The Free Talk

An  admonishment has been imposed by an Arizona Hearing Panel for a prosecutor's negligent failure to disclose Brady material

At all times relevant, Ms. Roubicek was licensed to practice law in Arizona, having been admitted to the State Bar of Arizona on October 24, 2003. [JPS at 2.] Ms. Roubicek began felony prosecution in 2012 when she became employed with the Pima County Attorney’s Office. This matter concerns the State prosecution of Ronald Johnson by Ms. Roubicek. She was not involved in the investigation or in obtaining the indictment.

After Johnson was indicted

On November 21, 2013, [co-defendant] Mr. Barstow engaged in a free talk with the State.  Mr. Barstow was present with his lawyer. [Sealed Ex. 1.] Ms. Roubicek, with two Tucson Police detectives also participated in the free talk. At the beginning of the free talk, Ms. Roubicek advised Mr. Barstow that the recording of the free talk may be provided to other defendants in the matter and that any exculpatory information would be disclosed. [JPS at 6.] Mr. Barstow provided information about a different source for at least some of the hashish, which was the basis for one of the charges against Mr. Johnson. Mr. Barstow’s free talk also included information showing that Mr. Johnson was not the individual who possessed the firearm which was the basis for another charge.

Mr. Barstow made statements regarding Mr. Johnson during the free talk. Mr. Barstow’s statements are accurately reproduced in the free talk transcript. At the time of Mr. Barstow’s free talk, Mr. Barstow was still a defendant in the same case as Mr. Johnson. Mr. Barstow made some exculpatory statements concerning Mr. Johnson. [JPS 7-9.]

Barstow pleaded guilty and 

On February 12, 2014, Ms. Roubicek moved to dismiss and/or amend the charges against Mr. Johnson that were impacted by the free talk. Ms. Roubicek moved to dismiss the charges of possession of marijuana, production of marijuana, and possession of a deadly weapon during a felony offense. Ms. Roubicek moved to amend the charge of possession of a  the court of the State’s non-objection to Mr. Johnson’s motion to sever his case from the other defendants. Mr. Johnson’s case was severed and set for trial on March 18, 2014, on the amended charges.

Trial was continued

On March 31, 2014, Ms. Roubicek disclosed the Barstow free talk. [2:11:30 p.m.] The SBA alleges that Ms. Roubicek disclosed the free talk on the day before the trial, which Ms. Roubicek refutes, showing that the trial was set for April 22, 2014, at the time of the afternoon disclosure rather, than April 1. The minute entry confirms the defense in that morning status conference also needed time to obtain an expert witness and the case was continued to April 22, 2014. [Id. at 2:12:09 p.m.; Ex. 25.]

Ms. Roubicek was unable to try the Johnson case due to a conflict with another case, and did not oppose the continuance. She then went back to her office after that status conference. [HT at 2:12:20 p.m.] She then discovered that the free talk documents had not yet been disclosed, and she immediately alerted her paralegal to disclose the free talk that day. [Id. at 2:13:29 p.m.] She was under the impression that once Mr. Barstow was locked into a plea agreement, she was to get the plea agreement, the documents, the audio, and the transcript together in a packet, so that it would all be disclosed together, and she believed that had all taken place. [Id. at 2:12:57 p.m.]

And the case was dismissed

On April 21, 2014, a status conference was held. There, defense counsel orally made a Motion to Dismiss due to the disclosure violation. The court then ordered defense counsel to file a formal written motion by April 25, 2014. Defense filed its Motion on April 28, 2014, which was granted. On June 30, 2014, there was a hearing set to consider the Motion to Dismiss. [JPS at 15; HT at 1:15:50 p.m.]

The court dismissed the matter with prejudice and found Ms. Roubicek’s conduct was unintentional error. [Sealed Ex. 3.] Ms. Roubicek told the court that she believed she had cured the issue over the exculpatory evidence by dismissing and amending certain charges on the indictment, and that she thought she had handled things correctly. [Id. at 2:16:32 p.m.] The Pima County Attorney’s Office did not take disciplinary action against Ms. Roubicek. [Id. at 2:26:50 p.m.]

The attorney testified in the bar hearing

During the evidentiary hearing held October 18, 2017, Ms. Roubicek testified that she had no prior training related free talks, no prior training related to the Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) reporting requirements,  and testified that she was unfamiliar with the Brady rule. [Hearing Testimony (“HT”) at 1:27:03 p.m.] She did, however, testify that she may have attended CLE courses that discussed the Brady rule. [Id. at 2:33:10 p.m.] Ms. Roubicek made a plea offer to Mr. Johnson on September 11, 2013, to a class 4 felony. [Id. at 1:32:09 p.m.; Ex. 12, Bates 132.] At that point, there was no free talk with Mr. Barstow. [Id.]

The panel rejected the State Bar's request for a suspension of six-months and a day. (Mike Frisch)

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

Friday, January 12, 2018

No Probation For Inappropriate Language Toward Prospective Client

Dealings with a prospective client have drawn a one-year suspension by the Kansas Supreme Court,

From the findings below

On April 27, 2016, A.J., a prospective client, called the respondent, seeking representation. During the telephone conversation, the respondent called A.J., 'baby,' which made A.J. feel uncomfortable. After the respondent called A.J. 'baby,' A.J. tape recorded the remainder of their telephone conversation. The respondent scheduled an office appointment with A.J. for the next day. The remainder of the telephone conversation went as follows:

'[By A.J.] You didn't forget about me, did you?

'[By the respondent] No, what do you need? With a voice like that, I can't forget that.

'[By A.J.] Okay.

'[By the respondent] So you want to bring your paperwork and come see me tomorrow at noon?

'[By A.J.] Yeah, that'll be fine.

'[By the respondent] Do you know where it's at?

'[By A.J.] No, I'm not really familiar.

'[By the respondent] Okay. So write this down. Okay?

'[By A.J.] Okay.

'[By the respondent] Tell me when you're ready.

'[By A.J.] I'm ready

'[By the respondent] 1919 North Amidon.

'[By A.J.] Uh-huh.

'[By the respondent] I'm on the third floor, Suite 312. When you get off the elevator on the third floor, you do a U-turn to your left.

'[By A.J.] Okay.

'[By the respondent] I'm down the hallway. Now, do you know that Amidon is up there at 21st and Amidon where Twin Lakes is?

'[By A.J.] Yeah, I know where—I know where that's at. You need me to bring you pretty much everything that I got.'[By the respondent] To show that you guys are married. Okay?

'[By A.J.] Okay.

'[By the respondent] And don't wear any under panties.'

A.J.'s nine year-old daughter overheard the respondent's request.

He then called three times leaving messages to confirm the appointment. She instead complained to disciplinary authorities.

Further

In his response as quoted above, the respondent stated that he ran into an old client at the courthouse, she offered him sex for legal services, he became angry, and, as a result of his prior experiences, he took out his anger on an innocent bystander. At the hearing, however, the respondent's testimony included many facts not included in his initial complaint.

He has practiced for 34 years, was cooperative with the process and sought help

The respondent sought treatment from Renee C. Fields, LSCSW. The respondent has been in continuous treatment with Ms. Fields since June 9, 2016. Ms. Fields diagnosed the respondent with adjustment disorder with disturbance of conduct. According to Ms. Fields, the respondent's conduct was situational, he has made improvements, and his prognosis is good...

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the office of the Disciplinary Administrator recommended that if the panel found the respondent attempted to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, with 90 days to be served, followed by probation; however, if the panel found that the respondent did not attempt to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, the suspension stayed, and the respondent placed on probation subject to the terms and conditions of his probation plan supervised by a licensed attorney. Respondent requested permission to supplement the record with a proposed probation supervisor and that he be disciplined by either published censure or probation. The panel unanimously recommended that respondent be disciplined by a one-year suspension and that, after serving 30 days, he be placed on probation for two years subject to the terms and conditions listed in the final hearing report.

But since then his compliance was less than stellar

This court agrees with the recommendation of the Deputy Disciplinary Administrator and holds that respondent's license to practice law in the state of Kansas be suspended for one year, that he not be granted probation, and that he undergo a reinstatement hearing pursuant to Rule 219(d). While Falk's affidavit explained respondent missed his August meeting with him because of "some urgent thing that was going on with" respondent's two minor sons, the respondent offered no explanation to this court for why he failed to reschedule for that month. He also offered no explanation for why he failed to formally meet with Falk during September and October, even though Falk's affidavit stated they saw each other at least once a week at the courthouse during those months—and Falk reminded "him that we needed to meet, on a formal basis, regularly, at least once a month." Chance meetings at the courthouse do not fulfill the probation condition that the meeting occur at respondent's law office so that Falk "can review the files he [respondent] is working on, his calendar, and talk to his legal assistant Vicky."

While respondent explained he missed the monthly Lawyers' Group meetings because they conflicted with his court-allocated visitation with his sons, he offered this court no explanation for why he did not instead eliminate the conflict by seeking modification of this probation plan condition. Nor did he explain why he waited until November 29 to notify his supervisor Falk that he was violating the terms of his proposed probation by missing the meetings.

Moreover, respondent did not address other compliance issues raised by Falk's December 6 affidavit. Specifically, respondent did not sign "the necessary information releases" for his therapist to speak directly with Falk until after their meeting on November 29—five months after he agreed to this condition. Per respondent's proposed plan, "Mr. Phillips will sign appropriate releases for his psychologist, Dr. Renee Fields to be able to talk to me [Falk] about her care and treatment of Mr. Phillips. . . . I will contact Dr. Fields at least once a month, to check on Mr. Phillips' progress in treatment." Additionally, at least as of December 1, Falk had not provided the Disciplinary Administrator any reports regarding respondent's "conduct while working this probation plan"—although the panel's recommended probation conditions required Falk to "prepare a quarterly report to the disciplinary administrator regarding the respondent's status on probation."

In short, respondent's post-hearing conduct has not shown this court he will fulfill the conditions of any probation plan in the future.

Oral argument video linked here. (Mike Frisch)

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Second Bite

An attorney who was disbarred in Florida received the lesser sanction of a three-year suspension by the New Jersey Supreme Court.

He must. however, secure Florida reinstatement to be able to seek reinstatement in New Jersey.

The Disciplinary Review Board found the conduct warranted "substantially different" discipline in New Jerse y because the record did not establish "knowing" misappropriation.

But there was other bad stuff per the DRB

In December 2006, respondent and Larry M. Webman launched an enterprise to sell parcels of land in Costa Rica, Central America. Respondent was aware that, in 1993, Webman had been convicted of felony wire fraud and engaging in a scheme to defraud, and that he had served eighteen months in a federal prison for those crimes. Additionally, respondent knew that, in March 2006, the Commodity Futures Trading Commission (CFTC), an independent federal agency that regulates futures and option markets, issued an order permanently enjoining Webman from any dealings with commodities futures sales or transactions.

Notwithstanding that knowledge, the attorney went forth with Webman.

It is true that we are bound by the facts contained in the Florida record. "A final adjudication in another court, agency or tribunal, that an attorney admitted to practice law in this state . . . is guilty of unethical conduct in another jurisdiction . . . shall establish conclusively the facts on which it rests for purposes of a disciplinary proceeding in this state." Rule 1:20-14(a)(5). Nevertheless, we are not bound by the Florida court’s legal conclusion that respondent had an overarching duty to maintain the deposit monies intact in his trust account by way of a constructive escrow agreement. Indeed, a portion of the Florida case that the referee cited in support of his finding of a constructive escrow, United American Bank of Central Florida v. Seliqman, supra, 5499, So.2d 1014, contains the following quoted language: "[i]n the absence of an express agreement, written or oral, the law will imply" certain duties of care upon the escrow agent, in this case, respondent.

Here, however, the parties had an express, written, and fully executed escrow agreement, as evidenced by paragraph six. Therefore, we cannot find clear and convincing evidence that respondent knowingly misappropriated purchasers’ deposit monies, either for himself or for another improper use.

Respondent, nevertheless, engaged in egregiously dishonest, fraudulent conduct, in violation of RPC 8.4(c). We find that he also assisted Webman in conduct that he knew was fraudulent, in violation of RPC 1.2(d), and ran afoul of Florida’s recordkeeping rules, equivalent to New Jersey R. 1:21-6 and RPC 1.15(d).

When respondent partnered with Webman and drafted the model purchase and sale agreement, he knew that Webman had been convicted of fraud in federal court, that Webman had spent time in a federal penitentiary for his crimes, and that a few short months before launching the PIPCR scheme, Webman had been banned for life from participating in the futures and commodities markets in the United States. Under such obvious circumstances, it was unconscionable, and perhaps deliberate, for respondent to draft such a lopsided escrow arrangement into the purchase and sale agreement.

It is also axiomatic that, in any purchase and sale agreement, the seller is presumed to own the property he is offering for sale. The facts here, however, suggest that the purchasers were not aware that PIPCR did not own the property when they turned over their deposits to secure the purchase price of their lots. But respondent knew that PIPCR and Webman did not own the Hardy property. He also knew that Webman would use those funds to purchase that very property and for other, unrelated purposes. Respondent also acted dishonestly by facilitating PIPCR’s $267,000 mortgage and loan for the Hardy property, which encumbered the property that he and Webman were actively marketing to the unsuspecting purchasers at the time.

(Mike Frisch )

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Worthy Addition To The District Of Columbia Bar

An order entered yesterday by the District of Columbia Court of Appeals

No. 17-BG-1437

IN RE: SHON ROBERT HOPWOOD,  M110434

Applicant.

BEFORE: Glickman and Thompson, Associate Judges; and Steadman. Senior Judge.

                                                                   ORDER

On consideration of the findings of fact, conclusions of law, and recommendation of the Committee on Admissions, and the record, it is

ORDERED that the applicant’s application for admission to the District of Columbia Bar is granted and the Committee on Admissions shall certify the applicant for admission to the District of Columbia Bar.

Shon's story - told on 60 Minutes, in his published autobiography Law Man, the New York Times, Washington Journal,  NPR and elsewhere - of his journey from convicted bank robber to respected advocate and law professor - has been recounted elsewhere.

I am honored to have represented Shon in this matter.

On a personal note, the participation of Senior Judge John Steadman carries a deep meaning for me.

Judge Steadman came to the Court as a Georgetown Law professor who had taught when I was a student there in the early 1970s. He joined the court shortly after I took the job of Assistant Bar Counsel in 1984.

One of the benefits of being an Assistant Bar Counsel (if one takes the job seriously) is the frequency of arguments before the Court. 

I suspect that I argued 35 or more disciplinary cases before Judge Steadman. I revere and respect him on a par with any appellate jurist I have ever appeared before.

There were giants in my days - the names of Judges Pryor, Belson, Mack and Schwelb come to mind - but given Shon and my Georgetown connections, having Judge Steadman on this order is sublime justice. (Mike Frisch)

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)