Tuesday, March 28, 2017

The English Teacher

The Oklahoma Supreme Court has  disbarred an attorney

Caroline Drummond was employed as counsel for Michael Ross Kettles in connection with Tulsa County District Court Case No. CF-2013-4788. Kettles was incarcerated in the David L. Moss Criminal Justice Center. The pair had an existing relationship, which originated in 1997, when Drummond was Kettles' English teacher at Skiatook High School. In early 2015, the two reconnected on social media and their relationship became more personal.

According to Drummond, Kettles began requesting access to a cell phone. After multiple requests from Kettles, Drummond finally relented. After obtaining a phone from her carrier, Drummond scheduled a meeting with Kettles at the Tulsa County jail facility. As an attorney, she was permitted to have direct contact visits with clients. During their conference Drummond, covertly supplied Kettles with the cell phone and charger. The phone was placed in Drummond's legal file and transferred to Kettles by handing him the folder. Drummond also provided Kettles with cigarettes. The illicit items were subsequently discovered by detention officer Jessica Harris on May 15, 2015. During her confiscation of the contraband, Kettles assaulted Officer Harris to prevent her from confiscating the items.

Tulsa County Sheriff employee Corporal Bradley Philpott initiated an investigation to determine the source of the smuggled objects located in Kettles' cell. Corporal Philpott subpoenaed records from AT&T and had a forensic expert examine the contents of the phone. He also requested an interview with Drummond. After delaying for several weeks, Drummond finally met with Corporal Philpott on June 8, 2015. She confessed to providing Kettles with all of the contraband.

On July 30, 2015, a criminal matter was filed against Drummond in State of Oklahoma v. L. Caroline Drummond, Tulsa County District Court Case No. CF-2015-3921. The district attorney charged her with one felony count of bringing contraband into a penal institution in violation of 57 O.S.Supp. 2012 § 21. On February 23, 2016, Drummond pled guilty to the felony. An order deferring sentencing for two years was filed the following day. Review of the matter is scheduled for February 12, 2018.

The attorney continued to practice law in violation of the interim suspension imposed as a result of the conviction and

while the Rule 7 case was pending in this Court, the OBA filed a second proceeding against Drummond. The new case was brought pursuant to Rule 6 and asserted multiple violations of the Oklahoma Rules of Professional Conduct, including, but not limited to: failing to act with reasonable diligence and promptness; failing to properly communicate with her client; commingling client funds with her operating account; misappropriating client funds for her own personal use; failing to maintain a client trust account; acting with dishonesty, deceit and misrepresentation; failing to sufficiently cooperate and respond to the OBA grievances; and engaging in the unauthorized practice of law. The allegations of misconduct in the Rule 6 Complaint occurred prior to Drummond's guilty plea and deferred sentence.

The court

Drummond's handling of client funds in this case was deplorable...

We also conclude the record contains clear and convincing evidence Drummond engaged in the unauthorized practice of law following her March 2016 interim suspension. Testimony from TPD Officer Brad Blackwell established that on May 5, 2016, Drummond appeared at the scene of a drug arrest. She presented an OBA card to Officer Blackwell and his partner and informed the pair that she represented one of the detained suspects. She also inquired about the officers' probable cause for an arrest. When cross examined about the incident, Drummond's answers were evasive and unbelievable.  We find the testimony of Officer Blackwell more trustworthy than Drummond's self-serving denial. Although she admitted displaying her OBA card, she testified that it was not her intent to hold herself out as an attorney. This explanation is entirely implausible. The evidence was clear and convincing that Drummond's actions violated ORPC Rule 5.5(b)...

The record before this Court is more than sufficient to establish violations of Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. We conclude the appropriate discipline for Respondent Drummond is disbarment.

(Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Undergraduate

The Oklahoma Supreme Court reversed the decision of its Board of Bar Examiners and allowed a California attorney who does not have an undergraduate degree to sit for the Oklahoma bar exam

The story

Mr. Harlin graduated from homeschool high school in Muskogee in July of 2003. After working for approximately a year, he applied for admission to the Juris Doctor program at Oak Brook College of Law and Public Policy in California. Oak Brook is a four-year program recognized by the State Bar of California, but is not accredited by the American Bar Association. In California, students who attend non-accredited ABA institutions are required, after their first year of study, to sit for and pass a bar exam called the First Year Law Students' Exam. The exam is a seven-hour test that consists of four essay questions and 100 multiple choice questions styled after the Multi-State Bar Examination. Mr. Harlin took California's First Year Law Students' Exam in October of 2006 and passed on his first attempt.

In December of 2009, he graduated cum laude from Oak Brook with a Juris Doctor degree. In February of 2010, Mr. Harlin sat for the California bar exam and passed on his first attempt. In June of 2010, he was sworn into the State Bar of California where he remains in good standing. Upon admission to the State Bar of California, Mr. Harlin began doing contract work with two different firms in the San Francisco area while living in Muskogee. His practice included assisting with several jury trials, arbitrations, mediations, appeals, and depositions primarily in the areas of personal injury and employment law. Mr. Harlin is also admitted to practice before the Ninth Circuit Court of Appeals, the U.S. District Courts for the Northern and Central Districts of California, and the U.S. District Courts for the Western and Eastern Districts of Oklahoma.

After practicing for a year in California, Mr. Harlin contacted the Oklahoma Board of Bar Examiners (Board) and inquired about admission to practice law in Oklahoma. Mr. Harlin spoke with the Administrative Director of the Board, who informed him that under the RGAP he could not be admitted to practice in Oklahoma unless he obtained a law degree from an ABA accredited law school.  During this conversation, there was no discussion regarding Mr. Harlin's lack of an undergraduate degree and whether such would be an impediment to seeking admission to the practice of law in Oklahoma. Pursuant to his discussion with the Administrative Director, and his understanding of the RGAP, Mr. Harlin applied to and was accepted to Oklahoma City University School of Law and began attending classes in the fall of 2012.

Oklahoma City University School of Law was aware that Mr. Harlin did not have an undergraduate degree. However, Oklahoma City University School of Law admitted Mr. Harlin pursuant to Standard 502(b) of the ABA Standards for Approval of Law Schools, which allows a law school to admit an applicant who does not have a "bachelor's degree, or successful completion of three-fourths of the work acceptable for a bachelor's degree" in "an extraordinary case."

During his time at Oklahoma City University School of Law, Mr. Harlin sought to perform licensed legal intern work under the supervision of an Oklahoma attorney. Thus, on October 15, 2013, he registered with the Board as a law student to become a Licensed Legal Intern.  On November 19, 2013, the Administrative Director contacted Mr. Harlin by e-mail and advised him that "[o]ne of the requirements to register as a law student and for taking a bar exam is that an applicant has a certificate of graduation with a Bachelor's degree from a college whose credit hours are transferable to an Oklahoma law school." On November 20, 2013, Mr. Harlin replied to the Administrative Director and confirmed he did not have an undergraduate degree and that his degree was from the Oak Brook College of Law and Public Policy. The Administrative Director replied to Mr. Harlin that same day and notified him that she had not yet processed his application but that he could submit a statement to the Board explaining how he met the admission requirements of Rule 4.

 On March 5, 2014, Mr. Harlin submitted a statement to the Administrative Director via e-mail wherein he set forth why he believed he satisfied the requirements of Rule 4 of the RGAP. On April 9, 2014, Mr. Harlin received a letter from the Board, notifying him that the "Board has determined that you do not meet the necessary filing requirements for a Law Student Registration application." The letter also advised Mr. Harlin that if he wished to apply and take the bar exam, he could "submit an Exam Application by Attorney prior to February 1, 2015."

On December 2, 2014, Mr. Harlin submitted an Exam Application by Attorney along with the $1,000.00 application fee. Unlike Mr. Harlin's law student registration application, the Board processed the Exam Application by Attorney and accepted the fee. On March 31, 2015, Mr. Harlin received a letter from Patrick Kernan, general counsel for the Board, notifying him of the Board's denial of his Exam Application by Attorney and his right to appeal such decision under Rule 11 of the RGAP. On April 15, 2015, Mr. Harlin timely requested a hearing under Rule 11 of the RGAP.

The Rule 11 hearing was held before the Board on November 4, 2015. At the hearing, Mr. Harlin argued that the Board had erred in denying his Exam Application by Attorney because under Rule 4, § 1 he was not required to satisfy the law student registration requirements of Rule 4, § 2, specifically the requirement that he obtain an undergraduate degree. On November 19, 2015, Mr. Harlin received a letter from the Board notifying him that the Board had again denied his application. The letter advised him that the Board had found that even as an attorney applying under § 1 of Rule 4, Mr. Harlin had to comply with all of the requirements of law student registration found in § 2, including obtaining an undergraduate degree.

Mr. Harlin timely appealed the decision of the Board to this Court on December 18, 2015. Briefing was completed on April 25, 2016, and the cause was assigned to this office on April 26, 2016. We note that during the pendency of the proceedings before the Board, Mr. Harlin graduated summa cum laude from Oklahoma City University School of Law in May of 2015 where he served on the Oklahoma City University Law Review and was voted by the faculty as the Most Outstanding Graduate of the Class of 2015.

The court

We conclude that Mr. Harlin, as an attorney licensed to practice law in a non-reciprocal jurisdiction, has met the requirements of Rule 4 for admission to the practice of law in Oklahoma by examination and no outstanding requirements remain. The decision of the Board is reversed, and Mr. Harlin shall be allowed to take the Oklahoma bar exam.

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Parking Tickets Guy

A motion for interim suspension was granted by the Tribunal Hearing Division of the Law Society of Upper Canada in a matter involving a paralegal license

Mr. Low received his P1 licence to provide legal services on November 20, 2013. He is the owner of a website called parkingticketguys.com.  Between 2011 and October 19, 2016, he used the website to advise people that he could defend their City of Toronto parking tickets.

The website was connected to Parking Ticket Guys (“PTG”) a federally incorporated company solely owned by Mr. Low, who is its sole director.

 Between inception and October 19, 2016, Mr. Low used three business models with different fee structures but some common features:

•                     The person with the ticket would submit information regarding the ticket on the website.

•                     No one met with most clients in person at the time of retainer.

•                     The client was told to ignore any Notice of Trial as someone would attend to 'fight' the ticket.

•                     The client paid money in advance of any defence of the ticket or other assistance.

•                     If all went well with the intake process, a paralegal would file the ticket and a paralegal would attend at the court on the day of trial.

•                     The client would not attend with the paralegal on the day of trial and, absent a fatal flaw in the ticket, or the failure of the officer to appear, Mr. Low or the attending paralegal would 'offer a plea'.

•                     None of the advances paid was ever held in a trust account.

•                     No accounts were sent to any of the clients once the matter was complete.

The differences in the three business models related to the fees charged. From 2011 until about March 2016, Mr. Low provided a guarantee that he would save at least 50% on each City of Toronto parking ticket submitted to him. The client paid 50% of the value of the ticket as soon as the ticket information was submitted to the website. If Mr. Low lost the case, he promised to pay the fine.

From about March 2016 to about June 2016, Mr. Low charged a flat fee of $10 per ticket and again, if he was unable to win the case, he promised to pay the fine.

From June 2016 until the interim interlocutory suspension on October 19, 2016, Mr. Low charged a flat fee of $10 per ticket for filing the required notice and defending the ticket. If Mr. Low was unable to win the case, the client was required to pay the fine rather than Mr. Low.

In late 2013, the Law Society began receiving complaints regarding Mr. Low. The complaints concern failures to communicate or improper communication, failures to provide any services, and failures to honour the promises made.

Some of the complainants say they have been obliged to pay higher fines for their parking tickets when no one appeared at the trial. Some of the complainants say they were unable to renew their motor vehicle licence plate stickers, due to outstanding parking tickets they thought had been dealt with long before. Some of the complainants have been told by Mr. Low that they were committing a criminal offence by indicating they would complain to the Law Society about him.

Disposition

The panel considered whether making an order was required, or whether an order restricting the manner in which Mr. Low may provide legal services might suffice.

One element of this matter concerns the proper handling of client monies. Mr. Low adamantly maintains that he is not required to maintain a trust account, despite being cautioned and provided with the text of By-Law 9, s. 7 in a letter from the Law Society dated November 30, 2015. Mr. Low did not change his behaviour in response to the caution.

Mr. Low admits that some clients have not been paid or refunded monies which, under his first two business models, he had obligated himself to pay. If he had properly deposited client monies into a trust account, there would at least be some money available to refund to those clients.

This raises questions about Mr. Low's integrity which, again, are not for this panel to decide. In this panel's view, however, public confidence in the ability of the Law Society to regulate its licensees would be shaken if any order other than an interlocutory suspension were made. Further, the panel considers that potential harm to members of the public is not sufficiently mitigated by anything less than an interlocutory suspension. It is significant that the risk of harm to members of the public and to the public interest in the administration of justice is ongoing. We do not have a basis to conclude that the ongoing harm will end absent an interlocutory suspension.

(Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Another Smoking Gun In D.C. Bar Disciplinary Dysfunction

A District of Columbia Ad Hoc Hearing Committee recently issued a report that would be unremarkable save for two facts.

The first fact

An evidentiary hearing was held on May 9 and 10, 2012, and August 10, 2012.

Yes. the hearing was held five years ago. Reports are due within 120 days of the close of the record.

Second and equally lamentable is the fact that Disciplinary Counsel had brought a second matter against the same respondent.

That matter was assigned to a separate hearing committee which filed its report last month concluding

the Committee concludes that Disciplinary Counsel has established a violation of Virginia Rules 1.1 and 1.3(a) in that Respondent did not adequately prepare before filing the Complaint, prejudiced his client’s case by filing on the statutory deadlines, and did not pursue discovery with sufficient diligence once he filed. We also find that he violated Rules 3.3(a) and 8.4(c) in asserting in the Fourth Circuit Court of Appeals that Dr. Davis had an office at Central State when the record in this case showed that the doctor did not. We recommend that he be suspended for a period of forty-five days.

Here the hearing committee found misconduct and recommends a public censure

Respondent, Gregory L. Lattimer, Esquire, is charged with violating Rule 1.4(a) of the District of Columbia Rules of Professional Conduct (the “Rules”), in each of three separate client matters. The Hearing Committee finds clear and convincing evidence that Respondent violated Rule 1.4(a) in the course of his representation of two clients, and recommends that Respondent receive a public censure for his misconduct. The Hearing Committee finds that Disciplinary Counsel did not establish a violation of Rule 1.4(a) in the third client matter.

But understand this.

Because the two matters were not joined, this committee was blissfully unaware of the other serious matter.

In 2006, Respondent was issued an informal admonition for conduct that took place in 2003 involving his failure to properly distribute the proceeds of a settlement, in violation of Rules 1.1(a) (competent representation), 1.1(b) (skill and care), 1.5(e) (failure to advise client in writing of division of fees and responsibilities of co-counsel), and 1.15(a) and (b) (failure to safekeep and properly disburse client funds). Respondent has no other disciplinary infractions.

Both matters are now before the Board on Professional Responsibility, which is obligated to treat the matters in tandem.

The two reports are In re Gregory Lattimer and can be accessed here. (Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 27, 2017

The Full Ginsburg

The New York Commission on Judicial Conduct has censured a Supreme Court Justice who gave three interviews in one day about a mistried murder case.

Crimesider reported on the eventual dismissal of the charges brought against a former Cornell student accused of murdering his father.

Tan was charged in February after sheriff's deputies called to the family's home in an upscale neighborhood in Pittsford, a Rochester suburb, found his father dead from multiple shotgun wounds. The elder Tan owned an imaging technology company in nearby Canandaigua.

Prosecutors said Charles Tan killed his father because he was abusive to his wife. The younger man was enrolled at Cornell University in Ithaca, New York, at the time of the slaying.

The judge's decision to dismiss the charges incensed Gargan and District Attorney Sandra Doorley. Gargan said Piampiano failed to look at the evidence presented during the trial. Doorley said her office is researching whether the decision can be appealed, she said.

During the trial, prosecutors said Charles Tan called a high school friend in early February and had him purchase a shotgun at a Wal-Mart in Cortland, near Ithaca. Authorities said Tan's mother, Qing "Jean" Tan called 911 on Feb. 9 to report that her son had shot her husband.

When deputies arrived, they discovered Jim Tan had been shot as he sat behind a desk in the second-floor office of the family home he also shared with his wife and their younger son. Charles Tan was arraigned on second-degree murder charges the next day.

The order tells the story of the judge's star turn.

...on or about October 8, 2015, at a time when he was a candidate for election to the Supreme Court, respondent gave three separate media interviews during which he made prohibited public comments about People v Charles J Tan, a pending murder case over which he was presiding in Monroe County Court.

...after [a] mistrial was declared, respondent was contacted by personnel from three media outlets: WHEC-TV, Channel 10, the NBC-affiliated television station in Rochester; WHAM-TV, Channel 13, the ABC-affiliated television station in Rochester; and the Democrat & Chronicle, a daily newspaper in Rochester. Respondent agreed to engage in one-on-one interviews about People v Tan in his chambers with reporters from each of the three media outlets.

On or about October 8, 2015, at approximately 4:00 PM, respondent met in his chambers with a reporter from WHEC-TV, Channel 10. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at http://www.whec.com. 

On or about October 8, 2015, at approximately 4:30 PM, respondent met in his chambers with a reporter from WHAM-TV, Channel 13. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at http://13wham.com/. 

On or about October 8, 2015, respondent met in his chambers with a reporter from the Democrat & Chronicle. The resulting interview was recorded and portions of it were posted on October 8, 2015, on the newspaper's website at http://www.democratandchronicle.com/. The audio portion of the interview was posted at the website https://soundcloud.com/democrat-and-chronicle/judge-james-piampianointerview-oct-8-2015.

And in court

On or about November 5, 2015, while presiding over a post-trial proceeding in People v Charles J Tan, during which respondent granted the defense motion for a trial order of dismissal, respondent, as set forth below, failed to be patient, dignified and courteous when he denied Monroe County Assistant District Attorney William T. Gargan's attempt to be heard and threatened to have Mr. Gargan arrested if he spoke.

MR. GARGAN: Judge, may I briefly speak?

RESPONDENT: No, you may not. If you speak I'm going to put you in handcuffs and put you in jail.

The Commission

Although respondent's comments indicate that he was aware of the ethical prohibition (at one point he stated, "I'm not at liberty to discuss the prosecutor's remarks or this case in particular") and he was also aware that there would be further proceedings in the case, including a potential re-trial, he granted three one-on-one media interviews in which he proceeded to discuss the case at length. While he often responded to the reporters' questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic. His statements, however, went well beyond general explanations of the law. He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury's deliberations. Especially troubling is his description of the defendant as a "sympathetic" figure. Even if viewed in the context of the reporter's question about the "possible impact" of the defendant's "supporters," his comment could convey an appearance that respondent viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice. This is especially so since the case was still before him and since, a month later, he granted the defense motion for a trial order of dismissal. The fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns...

It was also improper for respondent, in a post-trial proceeding a month later, to threaten to have the prosecutor placed in handcuffs and put in jail when the attorney asked to speak as respondent was announcing his decision on the defense motion to dismiss. (The record indicates that respondent had previously afforded the prosecutor an opportunity to be heard on the motion.) By asking to speak, the prosecutor was simply doing his job, and even if respondent believed that the attorney was interrupting or speaking out of turn, his response was a substantial overreaction to the attorney's conduct...

In accepting the jointly recommended sanction, we note that respondent has admitted that his conduct was inconsistent with the ethical standards and has pledged to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

The commission's determination is linked here.

WHAM Rochester had a recent story on the appeal of the dismissal in the Tan case. (Mike Frisch)

March 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Botched Bankruptcy Leads To More Violations And Suspension

A year and a day suspension (requiring proof of present fitness for reinstatement) has been imposed by a Colorado Hearing Board.

Braham mishandled his clients’ bankruptcy case and electronically filed several documents that his clients had neither reviewed nor authorized to be filed. After his clients terminated his representation, Braham sent two emails to the bankruptcy trustee and others in which he disclosed confidential information that he had learned during the course of representation.

The clients

In November 2013, the Kellys considered filing for Chapter 13 bankruptcy to seek relief from a large tax debt that they were unable to pay.  That month, they sought general information about filing for bankruptcy from a legal website, and received a response from Respondent. Respondent emailed Ms. Kelly a packet of information along with a list of documents to collect, including pay stubs for the past six months.

They retained the attorney after a face-to-face meeting. The matter was mishandled and eventually dismissed. 

The attorney's effort to shift the blame to the client did not persuade

We reject Respondent’s contentions that Ms. Kelly was responsible for the delays in her case or its ultimate dismissal. The exhibits and testimony all point to Respondent’s lack of diligence as the cause of delay and dismissal. Ms. Kelly made every effort to expedite the filing of her case, including completing a detailed bankruptcy worksheet; providing Respondent the family’s tax returns, monthly bill statements, credit reports, and some of her paystubs by April 24, 2014; and giving him their remaining income-related information by August 27. Whenever Respondent requested additional information from Ms. Kelly, she promptly complied. And in May 2014, Respondent failed to send the Kellys a draft petition to review or to file their case by early May.

Respondent did not then diligently work on the petition and plan between June and August 2014. In fact, he did not have the case ready to file by August 8 and again asked Ms. Kelly to postpone their filing because he needed additional time to finalize information. Ms. Kelly believed Respondent would file the case on August 15. Over the next few days, however, Respondent failed to contact Ms. Kelly, and she was forced to seek an update from him on August 15. Rightfully concerned about the delay in the case and the garnishment of her wages, Ms. Kelly insisted that Respondent file the petition and plan that day. He did, but he filed a nearly blank petition and plan. As a result of these deficient filings, the court issued a missing document notice. Respondent failed to give the Kellys a copy of this notice and neglected to file these documents with the court, even though he knew such inaction would lead to the petition’s dismissal.

Respondent did not send the Kellys a draft plan to review until September 6, 2014, and this document contained substantial errors. Ms. Kelly corrected these errors, believing Respondent would make the edits and file an amended plan with the court. Instead, Respondent filed a second amended plan, which contained almost none of the Kellys’ revisions. He could not satisfactorily explain why this was so. The Kellys’ bankruptcy case was dismissed and he did not refile the case.

And

we determine that when Respondent submitted the bankruptcy filings with the Kellys’ electronic signatures on August 15, September 6, and October 1, 2014, he knowingly engaged in dishonest conduct and made misrepresentations to the court that the Kellys had reviewed and signed these documents under penalty of perjury, when they had not done so.

Messing up the bankruptcy case is bad. Trying to blame the client worse.

But this

On September 20, 2015, almost one year after the Kellys terminated Respondent, he sent an email to Paul Moss, a trial attorney with the office of the bankruptcy trustee who was handling the Kellys’ Chapter 7 bankruptcy, as well as to Parnell, the Kellys, Bershenyi, and the People’s attorneys Marie Nakagawa and [Regulation Counsel] Vos.

He took the offensive and violated confidentiality

I have been am currently handling a frivolous bar complaint from Nance Kelly from a totally biased OARC. My research from mid October 2014 right after receiving Nancy Kelly’s demand letter, would suggest a possible Whistleblower retaliation case here. I have tried to be fair to OARC, but they want to go the long way around...

It came to my attention this evening that Nance Kelly did not drop out of law school in San Fran to tend to her sick children, she is actually an inactive California attorney. Wow. Wasn’t there something about Texas in the petition? Weirdo...

I was given a sweetheart diversion that I turned down because I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband. It also seemed from that meeting with Marie and Karen that they were not being truthful and acting with full disclosure. Why would they help Nnace hide the bar complaint and the filing from me. How could this not be consider exculpatory to my defense?

Two emails to Regulation Counsel Vos were treated as an aggravating factor.

Respondent testified that he sent th[e] “Valentine’s Day” email to Vos because he was infuriated with the People’s investigation. By then, he said, he had learned that Vos’s wife, Matt Samuelson (Chief Deputy Regulation Counsel), and the husband of Lisa Frankel (the People’s intake attorney) all had graduated from St. John’s College, and Respondent was alarmed that “everyone went to St. John’s.” He also found out that Vos’s wife had worked for a creditor’s firm and thus believed he was denied an “impartial” investigation of his case. 

The second email

 “Your next move might be to call me anti-Semitic for mentioning Silverman B, a low-rent dog-dirty creditors law firm. Couldn’t [your wife] have got a job with a real law firm like M & J, at least?”

 “It’s 6am, I’m in great spirits, I am SOBER, and I wanted to say to you that if this is a personal attack, well then you’re wife has a gross pieface and Judge Sabino Romano’s niece, my wife, is HOT. Roof roof! :)”

 “Maybe Karen can investigate it, well by investigate, I mean do nothing and collect a statutory salary. I worked at the law library in your building, so KNOW I’ve got the research on you, amigo.”

 “Paddy cake, paddy cake, rich kid. You won’t like me when we take off the white gloves off...................and I’ve sat on my hands for too long.”

As to sanction

after learning the Kellys had refiled their bankruptcy petition, Respondent reacted to the news by sending emails to Moss and others in which he revealed client confidences, questioned the Kellys’ motives in filing a complaint against him, and again accused them of committing bankruptcy fraud.  The tone and tenor of those emails evinces a complete unwillingness to accept responsibility for his conduct. As example, Respondent made statements like, “Wasn’t there something about Texas in the petition? Wierdo” and “I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband.” These emails, much like his other communications, were riddled with conspiracy theories and attempts to shift the blame from his conduct, including that attorney Frankel was married to a creditor’s attorney yet investigated a complaint against Respondent’s former employer. Last, we are very concerned about the aggressive emails Respondent sent to Vos in February 2016. Respondent’s threats of violence are not warranted under any circumstance and demonstrate a complete lack of remorse. Accordingly, we weigh this aggravating factor heavily.

The attorney did not claim mitigation based on mental health issues

We do find, however, a causal link between Respondent’s personal and emotional problems and the two emails he sent to Moss in which he breached client confidences. In his report, Dr. Stevens opined that Respondent’s pre-existing agitation, coupled with his doubled dose of Lexapro and the stress and humiliation associated with the People’s complaint, caused him to “‘go off the rails’ and to organize an understanding of the investigation as being a profound existential threat. . . .” Accordingly, we apply significant weight to this factor, though only to mitigate Respondent’s Colo. RPC 1.6 violation. As a whole, then, this mitigator warrants average weight.

Thus

Respondent knowingly made misrepresentations to the court and violated the most basic client-centered duties: to be diligent and truthful with his clients about the representation. He also disregarded his duty of confidentiality, a fundamental principle in the lawyer-client relationship. Respondent’s failure to observe these duties justifies a one year-and-one-day suspension, with the requirement that he undergo an IME before petitioning for reinstatement.

(Mike Frisch)

March 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Menacing

A criminal conviction led to an attorney's disbarment in Colorado.

On October 25, 2013, two Colorado Springs police officers came to Respondent’s residence to assist another person in removing her property from the residence. That day, Respondent called 9-1-1 on more than one occasion and threatened to shoot police officers if they did not leave the area. He also told one of the police officers who came to his home that he was going to get a gun, and that it would not be pleasant for the officer if the officer was still there when Respondent returned.

Based on this conduct, Respondent was charged with one count of menacing, a class three misdemeanor under C.R.S. section 18-3-206, in El Paso County District Court. On February 13, 2014, Respondent pleaded guilty to the charge.  As set forth in his plea agreement, the elements of menacing are: that the defendant, in El Paso County, at or about the date and place charged, by threat or physical action, knowingly placed or attempted to place another person in fear of imminent serious bodily injury.

He had failed to notify disciplinary authorities of the conviction as required.

Pluses and minuses

Three aggravating factors are present here. First, Respondent was suspended from the practice of law for two years on June 24, 2013, under case number 13PDJ050.10 The conditional admission of misconduct in that case provided that Respondent pleaded guilty in 2010 to violating a Maryland protection order; that he pleaded guilty in 2011, also in Maryland, to second-degree assault; that he did not notify the People of either of those convictions; and that he pleaded guilty in 2013 to felony menacing, this time in El Paso County. The other two aggravating factors here are that Respondent has substantial experience in the practice of law and that his underlying conduct was illegal.

 The Court is aware of but one mitigator: Respondent faced other penalties and sanctions based on his menacing conviction.

The minuses won. (Mike Frisch)

March 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, March 26, 2017

Ontario Admits Disbarred Florida Attorney

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

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

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

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

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

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

We have reviewed the dissenting reasons of Mr. Cooper.

For reasons that follow, we allow the application.

The crimes

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

The majority found he satisfied the criteria for admission

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

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

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

Paul Cooper dissented

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

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

(Mike Frisch)

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

Saturday, March 25, 2017

Waste Not

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

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

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

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

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

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

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

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

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

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

Silver Linings Playbook

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

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

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

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

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

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

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

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

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

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

The commission claims Cooper's comments violated a professional conduct rule barring lawyers from making false statements "concerning the qualifications of a judge."

Reason.com notes that he views his role as"proudly over-crowding our prisons" and had the story of a 2011 incident

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

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

 (Mike Frisch)

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

Friday, March 24, 2017

No Right For Firms To Accept Outside Investments

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

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

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

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

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

Risky Business

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

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

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

Sanction

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

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

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

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

Protecting Vulnerable Hoosiers: State May Sue Foreclosure Defense Law Firms

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

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

The story

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

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

The court found the claims were properly brought 

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

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

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

Thursday, March 23, 2017

As Sober As A Judge

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

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

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

He objected to the supervision and the sobriety requirement.

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

The Lexington Herald Leader reported on the ethics case.

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

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

A Cavalier Attitude In The Bluegrass State

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus

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

(Mike Frisch)

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

False Statements In Federal Disciplinary Matter Draws New York Suspension

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

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

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

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

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

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

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

Sanction

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

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

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

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

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

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

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

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

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

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

Then

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

The clients sued and the bar got involved.

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

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

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

(Mike Frisch)

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

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

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

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

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

 (mike Frisch)

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

Out Of Trust

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

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

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

It began with trust overdrafts

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

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

(Mike Frisch)

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