Monday, July 28, 2014

Interviewing With The Enemy

The District of Columbia Bar Legal Ethics Committee has a new opinion on an important real-world issue

When a lawyer is seeking employment with an entity or person adverse to his client, or with the adversary's lawyer, a conflict of interest may arise under Rule 1.7(b)(4) if the lawyer’s professional judgment on behalf of the client will be, or reasonably may be, adversely affected by the lawyer’s own financial, business, property, or personal interests (for purposes of this Opinion, a lawyer’s own financial, business, property, or personal interests are collectively referred to as a “personal interest conflict”). Both subjective and objective tests must be applied to determine whether a personal interest conflict exists.

There is no “bright line” test for determining the point during the employment process when a personal interest conflict arises, and that point may vary. There are a number of factors to consider in determining whether a personal interest conflict exists, including whether the individual lawyer is materially and actively involved in representing the client and, if so, whether the lawyer’s interest in the prospective employer is targeted and specific, and/or has been communicated to, and reciprocated by, the prospective employer.
 
Where the prospective employer is affiliated with, but separate and distinct from, the entity adverse to the job-seeking lawyer's client, there may be no personal interest conflict in the first instance, because the adversary and the prospective employer may be separate entities for conflicts purposes.

If a personal interest conflict arises, there are three possible courses of action that may be available to the individual lawyer, each of which is subject to applicable requirements of the D.C. Rules of Professional Conduct: (a) disclosing to the client the existence and nature of the personal interest conflict and the possible adverse consequences of the lawyer's representation of the client and obtaining the client's informed consent to the representation; (b) withdrawing from the representation; or, (c) discontinuing seeking employment with the client's adversary or the adversary's lawyer until all pending matters relating to that potential new employment have been completed.

The personal interest conflict of an individual lawyer in a law firm, nonprofit, or corporate legal department is not imputed to the other lawyers in the law firm, nonprofit, or corporate legal department, so long as the personal interest conflict does not present a significant risk of adversely affecting the representation of the client by such other lawyers. The imputation rule does not apply to a government agency.

A subordinate lawyer who discusses a potential personal interest conflict with his supervisory lawyer, and acts in accordance with the supervisory lawyer's reasonable determination of whether the subordinate lawyer has a personal interest conflict and follows the supervisory lawyer's recommended course of action, will not be held professionally responsible even if it is subsequently determined that the supervisory lawyer's determination of whether there was a personal interest conflict, and/or the recommended course of action, were incorrect under the Rules.

I have found this issue to arise with some frequency. Guidance always is helpful. (Mike Frisch)

July 28, 2014 in Hot Topics, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Worst Report Affirmed

In October 2012, I posted a comment about a report of a District of Columbia hearing committee that absolved four lawyers who I believe were proven to have engaged in serious misconduct involving the abuse of an elderly woman suffering from dementia.

The post was titled The Worst Hearing Committee Report in D.C. Bar History.

My take

The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.

After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.

The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.

Well, two years have passed and the Board on Professional Responsibility affirmed the findings last week.

The majority opinion calls the case one that is resolved by the hearing committee's "credibility" determinations, thereby absolving themselves of the work of actually studying the record and evaluating the wealth of evidence that the hearing committee simply ignored in aid of its steadfast desire to find no misconduct.

From the BPR majority opinion

We adopt the Hearing Committee’s findings of fact because we agree that they are supported by substantial evidence. Despite the quantity of evidence urged by Bar Counsel, when we account for the Hearing Committee’s qualitative credibility determinations, we agree that Bar Counsel has not clearly and convincingly proved the charges against Respondents. The facts argued by Bar Counsel certainly do not “produce … a firm belief or conviction” that the Hearing Committee got it wrong.

In other words, it's fine to ignore the findings of judges and the observations of a dozen witnessess if you accept the self-serving statements of the attorneys that they did not know that their so-called "client" was incapable of decision-making.

The concurring opinion would find that the attorneys were aware that their "client" was incapacitated and that her interests conflicted with those of her son. Somehow, those conclusions did not lead to findings of serious ethical violations.

The concurrence concludes

This is a sad case. It involves an unnecessary and bitter dispute between a brother and sister, neither of whom distinguished him or herself, over the financial affairs of their mother. Mrs. Ackerman was visually impaired, suffered from dementia, and was distressed by the dispute between her children. The dispute resulted in extensive litigation that was funded by the trust established to provide for Mrs. Ackerman in her later years. The costs of that litigation contributed to the depletion of the trust assets such that questions were raised as to the sufficiency of the trust to support Mrs. Ackerman.

It is also a difficult case. Attorneys retained to handle matters in situations such as this face difficult decisions concerning the capacity of elderly clients to make informed and educated decisions. As noted, the Rules of Professional Conduct provide little guidance for when a lawyer must decline the representation, or withdraw from the representation of a client, who is suffering from dementia and other disabilities that impair her ability to function. That is particularly true in situations such as this where the client retains social graces, has an outward appearance of understanding, at some level, of what is happening, and where, as here, the client is relatively clear as to her wishes, even if she does not fully appreciate the consequences of her actions.

I agree that this is a "sad case," but not for the reasons set forth. The case sadly reflects the inability of the BPR to deal meaningfully with a case in which the hearing committee entirely failed to do its job.

The disingenuous suggestion of the concurrence that the lawyers acted in a good-faith belief as to the mother's competence is belied by an overwhelming amount of record evidence.

And the false equivalence between brother and sister --the brother who tried (with the help of four lawyers) to loot his mother's estate and the sister who tried to protect her -- is deeply offensive to anyone who bothered to study the record of this sorry affair.

It's as if the BPR would find that the person who defends frivolous litigation is as blameworthy as the person who initiates it.

I expect Bar Counsel to appeal these dismissals to the Court of Appeals.

Regardless of the eventual outcome (and I have no optimism at this point) , the story of this case is Exhibit One to prove the failure of the volunteer disciplinary system in the District of Columbia.

In particular, this outcome serves as a warning to victims --don't bother to bring your concerns to the D.C.Bar, as you will only get attacked for your trouble.

To be fair, the hearing committee's gross and inexcusable failure to deal with the evidence put the BPR in a difficult position. One approach would have been to apply due diligence to study and learn the record; the other is the approach taken here --blow the whole thing off as a credibility contest and simply fail to deal with the evidence in a meaningful way.

These so-called guardians of the public trust should be thoroughly ashamed of themselves. In a just world, what happened to Fran Abbott (the complaining daughter) would happen to them.

The BPR report can be found at this link under the names Szykmowicz, Szymkowicz, Silverman and King. (Mike Frisch)

July 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, July 26, 2014

Death Be Not True

The Illinois Administrator has filed a complaint alleging that an attorney made false representations in response to a motion for sanctions.

The attorney was assigned by his law firm to defend a personal injury action.

A motion for sanctions was filed by plaintiff's counsel for a discovery lapse. The attorney sent unverified responses after the motion was granted.

Then

Prior to October 27, 2011, Respondent telephoned the office of [plaintiff] Jackson's counsel and spoke to Jennifer Vermillion, a paralegal, regarding Jackson's September 7, 2011 motion to compel...and Respondent's failure to respond to that motion. Respondent explained to Ms. Vermillion that he had been out of the office due to his mother having been killed in an automobile accident.

On October 27, 2011, Respondent filed a response to Jackson's motion for sanctions and for default judgment...in which Respondent admitted that he "could have done a better job responding to the discovery in this case," but requested that Jackson's motion be denied. In that response, Respondent made the following statements:

" 11. As Plaintiff's counsel was told several times, on September 9, 2011, the undersigned's single mother was killed in a violent car accident in the state of Colorado.

12. The violence of the car accident was not what killed her, instead it was the fire and smoke inhalation from the resulting conflagration.

13. She died intestate with a lease, bills, car and pets and no family in the state where she resided.

14. The undersigned was left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted."

18. Respondent's statements described in paragraphs 16 and 17, above were false, and Respondent knew they were false, because:

  1. Respondent's mother had not been killed in a car accident, nor had she been involved in a car accident at that time;

  2. Respondent's mother was alive; and

  3. Respondent was not "left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted.

No report on whether the mother will be called as a witness. (Mike Frisch)

 

July 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Frequent Flyer

An attorney convicted of seven misdemeanors was suspended by the New York Appellate Division for the Second Judicial Department for three years.

The attorney failed to report the convictions.

As to sanction

In determining an appropriate measure of discipline to impose, we note that the respondent failed to appear for the hearing, despite multiple adjournments at his request. Counsel for the respondent represented that his client was out of state, and was financially unable to return to New York. Ostensibly, the respondent was attempting to borrow money, and/or utilize mileage points accrued by a friend. However, he was unsuccessful. The Special Referee found, and we agree, that these explanations for the respondent's failure to appear are unavailing, given that he had ample opportunity to appear. Moreover, despite representations by the respondent's counsel that his client was in a treatment program, and that he had been involved with the Lawyer's Assistance Program prior to leaving New York, the same was not proved. Indeed, the Special Referee found that no mitigation by way of testimony, affidavit, or letter was received from the respondent, or anyone else on his behalf. Ultimately, we are troubled by the multiplicity of crimes, several of which are alcohol-related offenses.

(Mike Frisch)

July 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Attorney Charged With Lawyering While Intoxicated

The Illinois Administrator has filed a two-count complaint alleging misconduct by an attorney.

The first count charges him with leaving an accident scene. He allegedly drove seven miles to his home after the collision and parked his damaged vehicle in his garage.

He had, however, left some incriminating evidence at the scene - his bumper with the license plate still affixed.

After arriving at the accident scene, Lee County Sheriff’s Officers located Respondent’s address from the license plate and bumper left behind at the scene. After finishing their reports at the scene, the officers proceeded to Respondent’s home. Upon their arrival at Respondent’s home, the officers were able to see Respondent’s vehicle parked in the garage by looking through a window in the garage. The officers witnessed the damage to the front end of Respondent’s vehicle that was consistent with the information they witnessed at the accident scene.

Shortly after arriving at Respondent’s home, the Lee County Sheriff’s Officers rang Respondent’s door bell and knocked on the door. Respondent did not answer the door. The officers then looked into Respondent’s window and saw Respondent slumped in a chair in the kitchen with numerous beer cans around him. The officers knocked on the window and shined a flashlight at Respondent but Respondent did not awaken.

The attorney pleaded guilty to misdemeanor leaving the scene.

Count two charges, in essence, lawyering while intoxicated:

Between May 2010 and October 2011, the Administrator of the ARDC received correspondence from various judges presiding in the 15th Circuit, Lee County, Illinois, with concerns that Respondent was impaired and smelled like alcohol during various court appearances he made on behalf of clients in the Circuit Court of Lee County.

On October 26, 2011, Respondent appeared on behalf of Peggy Goldie for a prove-up in a dissolution of marriage matter entitled, In re the Marriage of Peggy Goldie v. Charles Goldie, 11 D 50 (Lee County Circuit Court). During the court appearance on October 26, 2011, the Honorable Jacquelyn D. Ackert, and other courtroom personnel, smelled alcohol on Respondent. Judge Ackert and the courtroom personnel also observed that Respondent was unsteady and had difficulty formulating appropriate questions for the court proceeding. Judge Ackert determined that Respondent was impaired and unable to properly proceed on the prove-up and continued the case to November 1, 2011.

After the court appearance, described in paragraph 10 above, the Honorable Ronald M. Jacobson and Judge Ackert, met with Respondent in Judge Ackert’s chambers. The Judges asked Respondent to submit to a breathalyzer test, but Respondent refused.

The complaint contends that the above course of conduct prejudiced the administration of justice. (Mike Frisch)

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Common Interest, A Common Privilege

In a matter involving the application of the common interest rule in attorney-client privilege law, the New Jersey Supreme Court has held that

The common interest rule is designed to permit the free flow of information between or among counsel who represent clients with a commonality of purpose. It offers all parties to the exchange the real possibility for better representation by making more information available to inform decision-making in anticipation of litigation. Although the Court recognizes that any privilege, including the attorney-client privilege and work-product protection, restricts the disclosure of information and may intrude on the fact-finding function of litigation, the Court finds that the rule recognized in LaPorta strikes an acceptable balance of competing interests. The Court, therefore, expressly adopts the common interest rule as articulated in LaPorta. Common purpose extends to sharing of trial preparation efforts between attorneys against a common adversary. The attorneys need not be involved in the same litigated matter or anticipated matter. The rule also encompasses the situation in which certain disclosures of privileged material are made to another attorney who shares a common purpose, for the limited purpose of considering whether he and his client should participate in a common interest arrangement. (pp. 33-37)

The protected attorney work product disclosed by Sufrin to the municipal attorney remained privileged pursuant to the common interest rule. Sufrin and Longport shared a common purpose at the time of the disclosure because Longport had defended many civil actions filed against it by O’Boyle and anticipated further litigation from O’Boyle, and Sufrin was attempting to defend a civil action commenced by O’Boyle arising out of one client’s official position and others’ participation in civic affairs. Sufrin also disclosed his work product in a manner calculated to preserve its confidentiality. There is no evidence that the municipal attorney shared the material with anyone else, including O’Boyle. Once the municipal attorney declined to enter a joint defense strategy, he returned the privileged material, thereby minimizing even an inadvertent disclosure. Finally, although privileges may be overcome by a showing of particularized need under the common law right of access, O’Boyle failed to demonstrate a particularized need for the privileged material supplied to the municipal attorney. (pp. 37-39)

The holding

...we expressly adopt the common interest rule as previously articulated in LaPorta, supra, 340 N.J. Super. at 254, 262-63. We also hold that Sufrin, who represented a former municipal official and private residents in litigation filed by O’Boyle, shared a common purpose with Longport at the time he disclosed work product to the municipal attorney. Therefore, the joint strategy memorandum, and the CDs containing documents obtained and produced by the private attorney were not government records subject to production in response to an OPRA request by O’Boyle. Finally, O’Boyle failed to articulate a particularized need as required by the common law right of access to obtain the work product of the private attorney.

The litigation involved access to public records. (Mike Frisch)

July 21, 2014 in Privilege | Permalink | Comments (0) | TrackBack (0)

Revocation Too Severe For Conversion

The Wisconsin Supreme Court rejected a call for license revocation from the Office of Lawyer Regulation and imposed a suspension of 18 months for an attorney's misconduct as a guardian.

The recreation of Attorney Voss's trust account showed that, during the period of time he served as J.K.'s guardian, Attorney Voss converted at least $48,791.73 of J.K.'s funds either for his own use or to cover expenditures for other client matters.  Since Attorney Voss repaid $46,103.88 to J.K.'s estate, the OLR's audit revealed that Attorney Voss still owes $2,077.18 in restitution to J.K.'s estate.

But revocation is too severe, according to the court

Revocation of an attorney's license to practice law is the most severe sanction this court can impose, and is reserved for the most egregious cases.  While Attorney Voss's misconduct is serious, we do not agree that it rises to the level of warranting revocation.  The cases cited by the OLR in support of its argument that revocation is an appropriate sanction are distinguishable...The conduct here simply does not rise to that level...

Wisconsin does adhere to a system of progressive discipline.  Attorney Voss has been licensed to practice law in Wisconsin for nearly four decades.  His disciplinary history consists of one private reprimand and one public reprimand.  After careful consideration, we conclude that an eighteen-month suspension of his license to practice law is an appropriate sanction.  We agree with the referee that Attorney Voss should be required to pay additional restitution in the amount of $2,077.18 to J.K.'s estate and that he be assessed the full costs of this proceeding.  We further agree with the referee that, as a condition of the reinstatement of his license, Attorney Voss be required to demonstrate that he has in place a proper trust account consistent with supreme court rules.

The referee had proposed a one-year suspension. (Mike Frisch)

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Helping Niece Gets Lawyer Disbarred

The Maryland Court of Appeals has disbarred a solo practicioner who practiced immigration and corporate law

This attorney discipline proceeding concerns a Maryland lawyer who, among other things: (1) represented her niece in an annulment/divorce matter in Virginia even though she was not licensed to practice law in Virginia and even though a conflict of interest existed due to the lawyer’s representation of her niece’s husband in an immigration matter; (2) provided incompetent representation and advanced a ground for annulment without conducting adequate research or speaking to her niece; (3) authorized co-counsel to sign settlement agreements on behalf of her niece despite failing to advise her niece of the agreements and to obtain her consent; (4) misrepresented her niece’s ability to communicate in English and her consent to the terms of the settlement agreements; (5) held herself out as specializing in immigration and corporate law; and (6) concealed her role in her niece’s representation from the trial court.

A concurring/dissenting opinion noted the absence of a selfish motive and would impose an indefinite suspension. (Mike Frisch)

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

What We Had Here Was A Failure To Communicate

The New Jersey Supreme Court has admonished an attorney who had failed to communicate to a client that her medical malpractice case had been dismissed.

The attorney gave as the reason

Respondent also testified about [client] Reilly’s psychiatrist, Maryn F. Beirne, M.D., who began treating Reilly for post-traumatic stress syndrome (PTSD), after Reilly’s State Police service, but before the accident, beginning in 2002. After a conversation with Beirne, respondent came away believing that she should not relay to Reilly any bad news about the case, should it occur. Thus, respondent claimed, she purposefully kept from Reilly the dismissal of the complaint. Respondent denied that she had failed to communicate with Reilly.

The Disciplinary Review Board's analysis

Respondent admitted that she did not advise her client, Reilly, about virtually every important event in the malpractice case, starting roughly in June 2006, when motions to dismiss began to surface. In August 2010, Reilly learned, on her own, that in 2008 her case had been dismissed, with prejudice. Respondent’s defense was that Drs. White and Beirne had cautioned her not to give Reilly bad news about the case, because Reilly could not handle such news. Both doctors, however, flatly rejected respondent’s version of the events, each stating that they had merely expressed their desire that respondent keep them informed about the case, especially about bad news, so that they could prepare Reilly for it and treat her accordingly.

If respondent truly felt that she could not advise her client about the actual events that transpired in the case, either out of a fear for Reilly’s own safety or for the safety of others, her recourse was to withdraw from the case. Instead, she allowed the matter to take its course, remained silent about setbacks, and never dealt with the consequences of her silence. That Reilly might become upset on hearing unfavorable developments in the case did not relieve respondent of her responsibility to keep her client adequately informed about its posture.

The DRB found a number of mitigating factors, including that the client suffered no financial harm. (Mike Frisch)

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Accused Of Impregnating Defendant

Kentucky.com has this story

Wayne County Commonwealth's Attorney Matthew Leveridge started a two-month sexual relationship with and impregnated a Wayne County woman whom he prosecuted for felony drug trafficking and who remains on probation through 2016, according to allegations raised in two court cases. According to the allegations, the affair began in January.

Leveridge filed a motion June 12 to revoke the probation of Latisha Lashley Sartain and send her to prison after she ended their affair and revealed her pregnancy to Leveridge's wife, according to court records. Leveridge's wife is suing him for divorce and sole custody of their child, alleging the affair with Sartain and other women, mental and physical abuse, and a history of bipolar disorder and alcohol abuse by her husband.

The allegations against Leveridge are contained in records in two court proceedings — the divorce case and motions filed by Sartain's attorney in her criminal case.

Leveridge cited a pending misdemeanor shoplifting charge as his reason for revoking Sartain's probation. After filing the revocation motion, Leveridge disqualified himself and handed the case to Wayne County Attorney Thomas Simmons, who withdrew the motion this week.

"I'm not gonna comment," Simmons said Thursday. "That's those people's personal lives, and I'm not going to get into it."

Sartain's attorney, Larry Rogers, said Leveridge was wrong to start an affair with a criminal defendant. Given Leveridge's friendships in the local justice system, Sartain — whose baby is due around late October — doubts she can expect fair treatment "with a five-year prison sentence still hanging over her head" until February 2016, Rogers said.

"If you're a prosecutor, you're not even supposed to talk to a defendant without her attorney being present, much less — well, this," Rogers said. "Universally, I think everyone would agree this is a big, big, big no-no."

Leveridge declined to discuss the allegations Thursday.

"I'm not gonna have any comment on anything," he said. "I'll have things to say in the appropriate forums before the appropriate people."

Leveridge, 41, has prosecuted felonies in Wayne and Russell counties since 2007, including an unsuccessful manslaughter case against the father of a 20-month-old boy who drank drain cleaner allegedly used to make methamphetamine.

Leveridge pleaded guilty in 2009 to drunken driving in Somerset and paid a $200 fine. Three years later, Attorney General Jack Conway presented him with an award as 2012's outstanding commonwealth's attorney.

"Matthew never turns down a special prosecution and is a tremendous asset to the prosecutorial system and to the residents of Russell and Wayne counties," Conway said at the time.

His office would not comment Thursday on the current allegations against Leveridge.

"If there are ethical violations, those would fall under the Kentucky Bar Association," said Conway spokesman Daniel Kemp.

"The Prosecutors Advisory Council and the Office of the Attorney General may take action to begin the removal from office of a prosecutor if he or she is indicted on felony charges," Kemp said. "If criminal misconduct is alleged, those charges could be investigated by Kentucky State Police, the Office of the Attorney General or the Federal Bureau of Investigations. Our office neither confirms or denies the existence of an investigation or lack thereof."

The state's professional conduct rules prohibit lawyers from "commit(ing) a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" or "engag(ing) in conduct involving dishonesty, fraud, deceit or misrepresentation."

Leveridge's wife, Bernadette, has filed for divorce and sole custody of their child in Russell Family Court. In her court filings, she alleges that in addition to "numerous" extramarital affairs, Matthew Leveridge suffers from "a serious history of mental illness" and has threatened repeatedly to kill himself or hurt others.

"Matthew has repeatedly engaged in seriously inappropriate conduct for which he could be disbarred," Bernadette Leveridge, also a lawyer, wrote in an affidavit Monday.

"I am concerned for my safety and that of our child," she said in her affidavit. "He has his guns, is continuing to drink alcohol, often uses abusive language during telephone and in-person conversations, and has stated that he discontinued treatment for psychological problems after I filed for separation."

Bernadette Leveridge also included a purported transcript of a telephone conversation she had this year with Sartain about the woman's affair with her husband. During the call, Sartain said she broke the news about her pregnancy to Matthew Leveridge by text message.

"He goes, 'I'm gonna get sick,'" Sartain told Bernadette Leveridge, according to the transcript in the divorce file. "I told him I was so sorry, and he says, 'It's not your fault, I guess I should've kept it in my pants.'"

Rogers, Sartain's attorney, said he had copies of extensive text message exchanges between his client and Matthew Leveridge.

Hat tip to Richard Underwood for sending this to us. (Mike Frisch)


Read more here: http://www.kentucky.com/2014/07/17/3341076/prosecutor-had-affair-with-impregnated.html?sp=/99/322/&ihp=1#storylink=cpy

July 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2014

No Dishonesty, Lesser Sanction

The Maryland Court of Appeals has imposed an indefinite suspension with the right to reapply in six months in a case involving misappropriation of entrusted funds.

As is often the case, the fighting issue before the court was the level of the attorney's intent. The court affirmed the hearing judge's conclusion that the attorney was negligent.

The court also affirmed the finding that the attorney's conduct did not violate Rule 8.4(c)(conduct involving dishonesty).

A concurring opinion by Judge Harrell, joined by Judge Battaglia, expressed concern about the state of the record on the dishonesty issue

I join reluctantly the Court’s opinion. Although I can find no fault with the opinion, I write separately to note that, on this record, although no MLRPC 8.4(c) violations were proved, I am left to wonder whether such a violation occurred. Under the circumstances, to doubt is to affirm the hearing judge. Nonetheless, I wish to highlight the basis of my mixed emotions for consideration in the prosecution of future cases.

Judge Harrell noted the dearth of evidence presented by the parties concerning the circumstances of three cash withdrawals from escrow, which he concludes were "highly suggestive" of intentional misappropriation.

...we are left to swallow the hearing judge’s Findings of Fact and Conclusions of Law that inferentially the cash withdrawals were just another result of the pervasive negligent conduct of Mungin in this case. Thus , I am constrained to concur in the Court’s opinion that Bar Counsel failed to prove the alleged MLRPC 8.4(c) violations, as the hearing judge concluded.

(Mike Frisch)

July 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Former Prosecutor Suspended After Guilty Plea

The Pennsylvania Supreme Court has suspended a former Philadelphia assistant district attorney in the wake of her guilty plea to a misdemeanor offense.

Philly.com had the story

For 22 years, Lynn Nichols prosecuted offenders as a Philadelphia assistant district attorney.

On Friday, she left the Criminal Justice Center on probation after pleading guilty to a misdemeanor criminal mischief charge arising from a bad breakup.

Nichols, 47, declined to comment after her guilty plea before Municipal Court Judge James M. DeLeon. DeLeon sentenced her to one year of nonreporting probation and restitution of $884 in towing fees to her ex-boyfriend.

"Lynn Nichols is an outstanding person who spent 20 years of her life fighting for the victims of crime," said her attorney, Brian J. McMonagle.

Senior Deputy Attorney General Susan DiGiacomo declined to comment on the negotiated plea agreement, in which the state prosecutor dismissed more serious charges of obstruction of justice and false reports. The state prosecutor handled the case because District Attorney Seth Williams recused his office from the conflict of prosecuting one of its own.

Nichols, assistant chief of the Homicide Unit when she was fired in October, was accused of using her influence as a prosecutor to have a stolen vehicle report removed from a police database in October 2012 to help her then-boyfriend. The 2005 Ford F-150 had been reported stolen by the boyfriend's ex-girlfriend.

When Nichols and her boyfriend split up a year later, authorities said, Nichols sought revenge by having the pickup again reported stolen.

The attorney had resigned from the DA's officeafter charges were filed. (Mike Frisch)

July 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

What's In A Law Firm Name?

The New Jersey Supreme Court has called for comments on a report of an Ad Hoc Committee that reviewed issues relating to law firm trade names.

The report concludes

...the Ad Hoc Committee recommends that there be no mandatory registration or pre-approval of law firm trade names by the Committee on Attorney Advertising. The Ad Hoc Committee recommends that the legal community be provided enhanced guidance on permissible and prohibited law firm names and that the Committee on Attorney Advertising monitor, regulate, and enforce the amended RPC.

 Comments are due by August 20, 2014. (Mike Frisch)

July 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Attorney Suspended Based On Deposition Concessions

An attorney facing charges that he diverted fees due to his firm has been suspended on an interim basis by the New York Appellate Division for the First Judicial Department.

The suspension was based on his admissions in the bar proceedings

At his September 25, 2013 deposition before the Committee, respondent, who was represented by counsel, admitted that between 2010 and 2011 he diverted approximately 10 payments (via checks) totaling approximately $83,000 made by a client, which were intended as payments of legal fees to his law firm in connection with a zoning matter respondent had been handling for the client. Rather than remit the funds to his firm, respondent used the funds for his own personal purposes, mostly for expenses related to his Parkinson's disease. Respondent also admitted that he failed to declare the $83,000 as taxable income because he considered it to be more in the "nature of a loan" which he intended to pay back.

Respondent's firm was unaware that the client had paid respondent directly, and in May 2012 the firm filed a motion asking to withdraw as attorney of record in another matter it was handling for the client in light of his total unpaid balance for legal fees and disbursements. The firm only learned of the client's payments to respondent in July 2012 after the client had commenced an action against respondent and the firm for, inter alia, legal malpractice, at which time the firm confronted respondent. Shortly thereafter, respondent left the firm and self-reported his diversion of legal fees to the Committee. In December 2012, respondent reimbursed the firm in full.

The attorney contended that interim suspension should not be imposed

Respondent acknowledges the seriousness of his conduct, but urges this Court not to impose an interim suspension because he contends that he does not pose an immediate threat to the public interest. In support of this argument, he recounts that: (1) he made full repayment to his law firm; (2) he self-reported his conduct to the Committee; (3) he is 76 years old, suffers from Parkinson's disease, and has a limited practice with only two active clients; (4) he does not intend to take on new clients; and (5) he will continue to cooperate with the Committee and will appear for a hearing once formal charges are filed. In addition, respondent argues that this Court has declined to impose interim suspensions in similar, and even more serious, matters. Respondent further contends that the majority of interim suspensions imposed by this Court have been in instances in which attorneys failed to cooperate with Committee investigations, which is not the case here, or where the conduct was flagrant and ongoing. Respondent has also submitted two character references and a letter from his psychotherapist who opines that she believes "the circumstances that took place ([respondent's] Parkinson's combined with the economic stress) sorely affected [his] judgment", respondent is not "a threat to society", nor "would [he] do anything to harm the public or a client."

The court rejected these contentions. (Mike Frisch)

July 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Another Day, Another Delay

This is the time of year when the small universe of people who follow District of Columbia bar discipline matters hold our breath to see if some of the not-so-golden oldies actually get decided and move forward.

The Board on Professional Responsibility likes to push out as many decisions as possible before resuming its work in September with newly-appointed members. This should be particulary true this summer because the term of the present board chair will come to an end.

The very worst offender in the overdue hearing committee reports is In re Rohde, a case in that involves a felony hit and run conviction.

On March 16, 2006 (more than eight years ago), the Court of Appeals referred the conviction to the board for a moral turpitude determination.

The board in turn sent the matter to a hearing committee for a recommendation. The committee held hearings in late December 2007 and early January 2008, more than six years ago.

And then... silence.

Notably, the court had departed from its usual practice and declined to impose an interim suspension of the attorney. Thus, this inexcusable delay has allowed the attorney to practice in good standing as a convicted felon for over eight years (assuming he paid his annual membership dues).

I'll let you know if a decision in the case is ever issued. (Mike Frisch)

July 17, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Split Ohio Supreme Court Indefinitely Suspends Convicted Judge

Kathleen Mahoney has this report on the web page of the Ohio Supreme Court

The Ohio Supreme Court today  indefinitely suspended the law license of Bridget M. McCafferty, formerly a  judge on the Cuyahoga County Court of Common Pleas.

In August 2011, McCafferty was  convicted on 10 counts of making false statements to federal law enforcement about  phone conversations she had with former Cuyahoga County Auditor Frank Russo and  local businessman Steve Pumper regarding cases in her courtroom. Federal  officials had intercepted more than 40,000 calls as part of a federal  investigation into countywide corruption.   After some counts were merged, the federal court sentenced McCafferty to  the maximum term of 14 months in prison with three years of supervised release,  150 hours of community service, and a $400 fine. Following her conviction, the  Supreme Court suspended McCafferty’s license to practice law on an interim  basis.

In a 4-3 decision today, the  court found that the former judge had violated multiple professional and  judicial conduct rules.

Justice William M. O’Neill, who  authored the court’s majority opinion, noted that McCafferty’s misuse of her  judicial position was not charged in the federal criminal complaint against the  judge, so that conduct was not part of the disciplinary case before the Supreme  Court.

In considering whether to disbar  McCafferty, Justice O’Neill explained that the Supreme Court has sometimes  determined that permanently prohibiting a judge from practicing law is  appropriate when the judge is convicted of a felony, but the court has not  always disbarred judges for dishonest conduct.

“Certainly McCafferty’s conduct  warrants a severe sanction,” Justice O’Neill wrote. “She was convicted on  multiple counts of lying to FBI agents about conversations with people who were  the subject of a county-wide corruption investigation. In addition, McCafferty  was deceptive about the nature of those conversations, most particularly that  those conversations included matters that had been before her in court.  Notwithstanding, the conduct that led to the criminal convictions and rule  violations occurred during a single impromptu conversation with FBI agents,  rather than as a pattern of premeditated criminal conduct. Thus, we agree with  the [Board of Commissioners on Grievances & Discipline] that imposition of  the system’s most severe sanction is not warranted in this case.”

“But we also do not believe that the  appropriate sanction is a fixed-term suspension,” he continued. “Despite  McCafferty’s cooperative attitude during the disciplinary proceedings, we are  troubled by the contradiction between McCafferty’s assertion that she accepts  full responsibility for her actions and her statement that she believed that  she had answered the agents’ questions as truthfully as she could. She clings  to this claim, despite its utter implausibility in the face of the recorded  conversations. Thus, we determine that an indefinite suspension without credit  for time served [under the interim suspension] is the appropriate sanction for  her misconduct.”

McCafferty’s interim suspension  will continue until she completes the terms of her federal sentence. Her  supervised release will end on September 17, 2015, as long as she commits no  parole violations. Her indefinite suspension from practicing law will begin  after she is discharged from the federal court.

The majority opinion was joined  by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy. Justice  Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen  O’Connor and Justice Judith L. French.

The dissenters would have  disbarred McCafferty.

“I do not see how the majority  can square a sanction of a mere indefinite suspension with its statements that  ‘[t]his court has stated that judges are held to the highest possible standard  of ethical conduct,’” Justice Lanzinger wrote. In her view, the case deserved  the full measure of the court’s disciplinary authority.

“The majority focuses solely on  McCafferty’s conversation with FBI agents and paints her conduct as a one-time,  brief lapse in judgment,” Justice Lanzinger continued. “This narrow  characterization is simply untrue; McCafferty’s misconduct was more prolonged  and more egregious than the majority admits. Months before she ever spoke to  the FBI, McCafferty was swaying judicial outcomes for political associates and  giving special consideration to high-ranking politicians. There can be no  dispute that this conduct occurred. McCafferty’s criminal indictment outlined  her involvement with [then-Cuyahoga County Commissioner James] Dimora and  Russo, and she stipulated, at her disciplinary hearing, to engaging in the  conduct described in the indictment.”

Two of McCafferty’s disciplinary  rule violations relate to her involvement with Russo and Dimora and the abuse  of her judicial office, so that misconduct is part of the case before the  court, Justice Lanzinger contended.

“If the primary purposes of  judicial discipline are to protect the public, guarantee the evenhanded  administration of justice, and to bolster public confidence in the institution,  then nothing short of disbarment should be imposed in this case,” she  concluded.

2013-0939. Ohio  State Bar Assn. v. McCafferty, Slip  Opinion No. 2014-Ohio-3075.

(Mike Frisch)

July 17, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Waterloo

The New York Court of Appeals has suspended the recently-indicted acting village justice of Waterloo.

The Finger Lake Times reported on the charges

Acting Village Justice Roger Barto is facing nine charges, five of which are felonies, related to a reported attack last summer authorities now say  he fabricated.                                                                                

The nine-count grand jury indictment was unsealed Monday afternoon in Seneca County Court. It charges Barto with felony counts of third-degree grand larceny, fourth-degree corrupting the government, third-degree insurance fraud, first-degree falsifying business records and defrauding the government.

Barto also has been charged with misdemeanor counts of third-degree falsely reporting an incident, official misconduct and petty larceny. The latter charge stems from Barto allegedly stealing gasoline in April while serving as sexton for the village cemetery.

The felony counts are related to an incident the night of Aug. 31, 2013, when Barto told police he was assaulted while locking up the village court following an arraignment. The court is in the village’s municipal building on West Main Street.

Barto told police he was approached from behind by one or two people, and that the assailant or assailants placed an object around his neck and hit him over the head with a toilet tank lid left outside the building due to renovations.

The suspension is with pay. (Mike Frisch)

July 17, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

A Ripening Position Does Not Amount To An Ethics Violation

A Louisiana Hearing Committee found no misconduct in a case where an attorney allegedly made a false representation to a court.

The attorney sought to withdraw his client's guilty plea in a criminal case.

The prosecutor, who could not be present for a morning session of court, had signed a document reflecting that he did not oppose the motion. After signing the pleading, the prosecutor told the attorney he was getting flack from his boss about his position but did not indicate that he had retreated from his consent.

The attorney told the court that the motion was unopposed. The court nonetheless declined to rule in the prosecutor's absence.

When court resumed, the prosecutor advised the court that "negative feedback [from his superior] had ripened into flat out opposition to the motion."

The committee found that these circumstances did not establish that the attorney made a false representation concerning the position of the prosecutor. (Mike Frisch)

July 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

Sex In Jail Charges Lead To Consent Disbarment

The Oklahoma Supreme Court has accepted a consent disbarment of an attorney who has been charged with criminal offenses.

Fox 25 reported on the criminal charges, initiated after a report by a female inmate at the Oklahoma County jail

Sheriff Whetsel said the investigation revealed the [attorney] Kirk only pretended to represent the woman who was in jail on drug charges.  She discovered the ruse when the public defender's office contacted her about her case.  That's when the woman talked to deputies and agreed to assist in the investigation.

Investigators say the woman met with Kirk inside the jail and he is heard on audio tape making advances towards her.  The sheriff's office says the woman was told to use the phrase "my pants are too tight" to signal deputies to enter the room.  "During his visit, Kirk furnished her with lubricating jelly and a sex toy and as this began our investigators opened the door and arrested Frank Kirk immediately."

According to court documents the female inmate told investigators that Kirk coerced her into performing sexual acts while he watched at least four times. 

Deputies found a cell phone with Kirk after his arrest.  Bringing a cell phone into the jail is a felony.  Kirk is now facing charges of possession of contraband and multiple counts of offering to engage in an act of lewdness.

"The sex toys and lubricant and stuff like that I can't imagine in a million years any lawyer would do anything like that and hopefully there's been a misunderstanding but it doesn't seem that way to me," said defense attorney Scott Adams.

(Mike Frisch)

July 16, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Partnership Ends In Death And Disbarment

An attorney's self-report of misconduct led to his disbarment by the South Carolina Supreme Court.

The self-report took place in late 2012, when the attorney learned that his law firm's trust account was being investigated by the Office of Disciplinary Counsel.

The attorney admitted that he had been aware of trust account shortfalls for six years and that his partner had a solution of robbing Peter to pay Paul and keep the account afloat.

Respondent did nothing to prevent the implementation of this plan and, as a result, the firm began the self-perpetuating cycle of misappropriation of client funds. Respondent actively participated in this process.

The self-report came in the wake of a client complaint over his partner's misappropriation of the proceeds of a personal injury settlement. The partner committed suicide the next day.

The attorney was placed on interim suspension within a few days of the self-report. He was convicted of mail fraud and confessed to a judgment of over $1.2 million.

Here, he consented to the disbarment.

The Palmetto State reported with respect to the partner

In Schurlknight’s case, after he committed suicide, his clients learned that he had gambled away their money and, not only that, had taken out a life insurance policy that paid money to his bookie to reimburse the bookie for his gambling losses, according to lawsuits on file in the Florence County Court of Common Pleas.

Read more here: http://www.thestate.com/2013/09/14/2980775/when-sc-lawyers-steal-clients.html#storylink=cpy

The partner's estate is the subject of a class action lawsuit initiated on behalf of former clients, according to SC Now.com:

The suit alleges that between 2007 and 2012 while practicing personal injury law that Schurlknight on many occasions settled client’s personal injury claims without their knowledge, forged their signatures on the settlement checks and kept the money for himself, while lying to clients that their case was ongoing. There are also allegations that he took out fraudulent loans in his clients’ names as well.

In addition to the allegations that he operated his law practice as “the Schurlknight family piggy bank,” the suit also said that Schurlknight not only kept the funds, but settled for far less than their actual harm.

The suit tallies up $4,262,484 that the plaintiffs say he stole, but claims the ultimate total could be between $6 million and $10 million

While the case will require analysis of the allegations of stolen money prior to Schurlknight’s death, it also hinges on claims that the defendants hid investment-grade life insurance policies from the court after he died.

The plaintiffs allege that the Schurlknight family, while represented by legal counsel, approved an inventory of the late Schurlknight’s assets that was inaccurate, and left out the insurance money that was specifically required by the probate court’s form, even though it is technically not part of the estate and in theory should have been exempt from creditors per South Carolina law.

The suit claims the purpose of the falsified inventory was “luring creditors into believing that pursuing any type of claim against the estate or its beneficiaries was hopeless as there were no funds or other assets of any kind to pursue.”

Since then the $1.5 million, which was deposited in Lee Schurlknight’s account and has been partially transferred to Malinda Schurlknight, was used to purchase three new cars and to pay $80,000 to a creditor, who the suit does not name.

(Mike Frisch)

July 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)