Friday, December 9, 2016

Let No Good Deed Go Unpunished

The Georgia Supreme Court accepted a petition for voluntary discipline of a Review Panel reprimand of an attorney who had provided financial assistance to a needy client from an earned fee that he held in his escrow account.

In May 2010, the clients told [attorney] Ralston that one of them had become unemployed and that they were having difficulty meeting the basic necessities for themselves and their minor child, including paying rent and paying for prescription medication; they asked Ralston to advance them money to be repaid from the proceeds of a settlement or trial. Ralston, believing that the clients were truly in dire financial need, advanced to them funds at no interest from an earned, but undisbursed, fee of $24,050.09 remaining in his IOLTA (Interest on Lawyer Trust Account) from an unrelated matter; between May 26, 2010, and October 31, 2011, he made 12 disbursements totaling $22,000 to the clients. A certified public accountant conducted a review of Ralston’s trust account for the time period in question, determined that no defalcation occurred, and verified that the earned but undisbursed fee was the source of funds advanced to the clients.

The State Bar dropped some charges but

With regard to the Rule 1.8 (e) violation, Ralston states that he was unaware of that rule when he made the advances and did not intentionally violate it; he was forthcoming with the State Bar in disclosing the advances and providing evidence of them; he obtained no financial gain from advancing the funds at no interest; he is not seeking reimbursement for the $22,000 advanced; and he has released any claim to a fee from the settlement of the case. With regard to the Rule 1.15 (II) (b) violation, Ralston admits that he made the advances to his clients from earned fees in his trust account and states that he was unaware that his actions violated Bar Rules, but he has since established safeguards to prevent any commingling of client and personal funds or retention of earned fees in his trust account.

The special master found the following factors in mitigation: absence of a prior disciplinary record; absence of a selfish or dishonest motive; full and free disclosure to the disciplinary authority and cooperative attitude toward the proceedings; remorse; and Ralston’s lengthy career in public service as a legislator and legislative leader. The sole aggravating factor found by the special master is Ralston’s substantial experience in the practice of law.

He is the Speaker of the State House of Representatives.  

AJC.com had the story when the proposed disposition was sent to the court last month.  (Mike Frisch)

December 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Voluntary Reprimand Where Attorney Makes Misrepresentation

The Georgia Supreme Court rejected a petition for voluntary discipline of a reprimand because the attorney's statement regarding restitution was untrue

Shahab was admitted to the Bar in 2009, and admits that in 2013 and 2014, he was retained to assist two clients in separate immigration matters, but failed to pursue the clients’ matters in a timely manner; failed to notify one of the clients of a court hearing, which led to the client being issued a notice of deportation for failure to appear; failed to respond to requests for information from the clients; and failed to refund any fees when the clients ultimately retained new counsel. Both clients have obtained fee awards through the State Bar’s fee arbitration program. 

Shahab states that he is unable to make significant payments toward satisfaction of the fee awards, but has sent both clients a $50 payment and has committed to making additional payments of $50 per month, and as much more than that as he can, until the awards are paid in full. In mitigation, Shahab recites the existence of personal and emotional problems arising out of family circumstances; his own health issues; sincere remorse; good character and reputation; and lack of a dishonest or selfish motive.

The State Bar opposes the petition, stating that it has confirmed with Shahab’s clients that he has not made any payments towards satisfying the fee arbitration awards and that he is currently administratively suspended for failure to pay his Bar dues. Given the misrepresentations made, we hereby reject the petition for voluntary discipline.

(Mike Frisch)

December 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Recommendation Comes Over Eight Years After Client Complained

Whenever you look at a disciplinary case in the District of Columbia, it is useful to consider the timeline of events.

In other words, how long is the process taking?

An Ad Hoc Hearing Committee filed a report yesterday that recommends disbarment of an attorney for dishonesty and negligent misappropriation.

As to the dishonesty

Respondent reconstructed a final invoice relating to [her client] Ms. Manago’s case to include time entries that had not appeared on previous invoices that she had provided to Ms. Manago. Respondent also claimed in that invoice to have met with Ms. Manago for 45 minutes on a day that she could not have – when Ms. Manago was at a doctor’s appointment – and on days that her own records expressly stated that a meeting did not occur. Respondent submitted this false document to Disciplinary Counsel, to the ACAB, and to the Superior Court in the lawsuit she filed against her client to vacate the ACAB award. (citations to record omitted)

As to the timeline.

The case involves a single client complaint.

That complaint was received by the Office of Bar Counsel (the name has since been changed to protect the guilty) on April 24, 2008.

The respondent attorney filed a timely response.

Bar Counsel issued a subpoena on December 9, 2008.

Nothing of consequence appears to have happened until charges were approved on March 4, 2015 (note that the charges may have sat unreviewed at the Board of Professional Responsibility office for some period of time).

Hearings were held over several days in September and October 2015 and the recommendation came out on December 8, 2016.

A single complaint. Eight and a half years and counting. Business as usual.

The case is In re Olekanma A. Ekekwe-Kauffman and can be found at this link.  (Mike Frisch)

December 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Don't Mess With Akron

The Ohio Supreme Court has imposed a stayed one-year suspension of an attorney who engaged in dishonesty in connection with a City of Akron tax bill

The parties’ stipulations, which are hereby incorporated by reference, show that the city of Akron filed a civil action against Champion for the collection of $544.36 in delinquent municipal income taxes plus interest and costs. In response, Champion repeatedly made false statements claiming that he had paid the taxes and submitted to the city a fraudulent copy of a canceled check that purported to show partial payment of the taxes he owed.

Following an extensive investigation, Akron’s tax department concluded that the check that Champion had submitted to prove payment of his taxes had been altered. After the city confronted him with its evidence, Champion acknowledged that the check he had provided as evidence of his payment had been altered. Champion subsequently remitted a check to the city for the full amount of the taxes owed plus additional costs of collection incurred by the city. The city demanded that Champion self-report his conduct to relator. Champion failed to self-report his misconduct, and the city’s attorney filed a grievance against him. 

On sanction

The board acknowledged that we typically require attorneys who have engaged in illegal and dishonest conduct to serve an actual suspension from the practice of law...Having considered Champion’s misconduct, the applicable aggravating and mitigating factors, and the sanctions imposed for comparable misconduct, we agree that a one-year suspension, fully stayed on the condition that Champion engage in no further misconduct, is the appropriate sanction in this case. 

With a dissent

O’NEILL, J., dissents and would remand the cause to the Board of Professional Conduct to consider increasing the severity of the sanction imposed upon the respondent.

(Mike Frisch)

December 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 8, 2016

An Inheritance Of Buttons

The Illinois Administrator has charged an attorney with having an elderly client name her as a beneficiary in violation of general conflict of interest rules and drafting an instrument that made the attorney the client's beneficiary

 In or around the spring of 2006, Elizabeth S. Hewitt ("Ms. Hewitt") retained Respondent, for the purpose of updating Ms. Hewitt's 1996 Revocable Trust (the "1996 Trust"). Ms. Hewitt's financial advisor, Jack Dunk ("Mr. Dunk"), had introduced Respondent to Ms. Hewitt after Ms. Hewitt advised him that she wanted to update her 1996 Trust. At the time of the introduction, Ms. Hewitt, a widow with no children, was in failing health.

Pursuant to the terms of the 1996 Trust, other than her home and her button collection, which were left to a church and a friend, respectively, all of the assets of the 1996 trust, both real and personal, were to be distributed by designated shares to six personal friends and fourteen established not-for profit organizations.

Respondent prepared the Restatement of the Elizabeth S. Hewitt Revocable Trust (the "2006 Trust"), after meeting with Ms. Hewitt and Mr. Dunk and reviewing and discussing the changes Ms. Hewitt had noted on a copy of the 1996 Trust. Ms. Hewitt signed the 2006 Trust on April 12, 2006.

The terms of the 2006 Trust provided that Respondent was to become the successor trustee, but not a beneficiary. As successor trustee, Respondent was to distribute outright Ms. Hewitt's home and button collection, by offering them for sale to a church and two friends, with the proceeds added to the assets of the trust estate and the assets distributed, by designated shares, to six personal friends and thirteen established not-for-profit organizations.

At the time that Respondent prepared the 2006 Trust, she was unaware of the extent of the assets of the trust which were largely under the supervision of Mr. Dunk, who was employed by Ameriprise. Over the next few years, however, Respondent befriended Ms. Hewitt, driving her to appointments and generally spending time with Ms. Hewitt. In so doing, Respondent came to know that Ms. Hewitt had assets exceeding one million dollars. These included Ms. Hewitt's home and personal belongings, including her valuable button collection, as well as her brokerage accounts, checking and savings accounts.

Respondent continued to act as Ms. Hewitt's attorney, regularly meeting with her following the preparation of the 2006 Trust. Ms. Hewitt told Respondent that she had a will that she was unable to locate and asked Respondent to prepare a new will. Respondent agreed to prepare a new will and, in 2008, Respondent prepared a pour-over will for Ms. Hewitt, naming the successor trustee of the 2006 Trust (Respondent), as executor of the 2008 will.

 In 2009, when Ms. Hewitt was 94 years old, with the encouragement of Respondent and some friends that Ms. Hewitt knew from her years as a collector of buttons, Ms. Hewitt decided to revise her 2006 Trust to provide, inter alia, for the establishment of a button museum and to make changes to the recipients of the assets of the trust estate. Respondent agreed to prepare a revised trust.

Respondent prepared the Second Amendment to the Restatement of the Elizabeth S. Hewitt Revocable Trust (the "2009 Trust"), which Ms. Hewitt signed on April 13, 2009. Respondent remained the successor trustee under the terms of the 2009 Trust. The terms of the 2009 Trust, changed the distribution of assets from shares to specific bequests to three individuals, in the total amount of $75,000, and four charitable, religious and community organizations in the total amount of $285,000. The 2009 Trust eliminated distributions to eleven other individuals and charitable institutions that had been named in the 2006 Trust. The 2009 Trust provided for a distribution of $100,000 to Mr. Dunk, which he later declined. The 2009 Trust also provided that Respondent was to become a 1/3 beneficiary of the remainder of approximately $1,000,000 (the "Residuary"), in her individual capacity, and 1/3 beneficiary as the director of a "button museum" that was to be established. The final 1/3 of the Residuary was to be distributed to Ms. Hewitt's neighbor, Gary Campbell. Respondent never advised Mr. Dunk of the changes made to the 2009 Trust.

After the changes

In November of 2010, when Ms. Hewitt was 95, was in hospice care and was suffering from internal bleeding that required frequent transfusions, Respondent arranged for a road trip to New York with Ms. Hewitt to visit one of the oldest button shops in the country. On November 25, 2010, inside a hotel room in Ohio, on the way back from New York, Ms. Hewitt died in the presence of Respondent.

Following Ms. Hewitt's death, Respondent gathered the assets of the estate, valued at 1.4 million dollars. Respondent issued checks to the specific beneficiaries named in the 2009 Trust. In addition, Respondent distributed 2/3 of the approximately one million dollars of the Residuary to herself and 1/3 to Gary Campbell. The distribution of the Residuary included over $400,000 that Respondent spent to establish, fund and run "The Button Room" museum, including the purchase of property that was deeded to Studer-Hewitt, LLC, a limited liability company controlled by Respondent.

In 2012, certain beneficiaries of the 2006 Trust brought an action in Lake County, Illinois to rescind or set aside the 2009 Trust based upon theories of undue influence and breach of fiduciary duty, and ordering Respondent to file an accounting and repay all money spent or lost as a result of the 2009 Trust and further seeking to have Ms Hewitt's estate be divided and distributed in accordance with the 2006 Trust. (Neiman and McGovern, v. Leslie Klocek, et al. 12 P 978, Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois). That lawsuit was settled on February 1, 2016 and the lawsuit was dismissed on February 11, 2016.

Pursuant to the terms of the settlement, Respondent was removed as trustee of the Elizabeth S. Hewitt Revocable Trust, the 2009 Trust was set aside and rescinded, and the Elizabeth S. Hewitt Revocable Trust was to be administered in accordance with the 2006 Trust, except that no further distribution was to be made to Gary Campbell. The property purchased by Studer- Hewitt was to be conveyed to the new trustee of the Elizabeth S. Hewitt Revocable Trust and Respondent was to turn over specific personal property to the new trustee, including Ms. Hewitt's diamond ring and jewelry, and all buttons from Ms. Hewitt's residence and the Button Museum.

(Mike Frisch)

December 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"A Symbolic Act Of Professional Suicide"

A three-year suspension has been imposed by the New Jersey Supreme Court based on conduct described in the report of the Disciplinary Review Board.

From 1970 to 1983, respondent was employed as a probation officer for Essex County. After obtaining his law degree, respondent served as an assistant prosecutor at the Essex County Prosecutor’s Office, from 1983 to 2001. During his tenure as a prosecutor, respondent supervised the arson and homicide units. Following his retirement from the prosecutor’s office, until his temporary suspension in 2014, respondent maintained a law office in his Maplewood residence, focusing primarily on criminal defense work in New Jersey state courts. On May 28, 2014, respondent was arrested in connection with the federal criminal charges underlying this matter.

...before the Honorable Mary L. Cooper, U.S.D.J., respondent entered a guilty plea to the information. During his allocution, respondent admitted that, between August 2013 and May 2014, he had engaged in a scheme to smuggle marijuana and tobacco to federal inmates in the ECCF. Respondent’s role was planned and coordinated as part of a conspiracy with his codefendants, V.S. and M.S. Respondent would meet with V.S., who was not incarcerated, to obtain the packages of contraband, which he would then smuggle into the ECCF. M.S., V.S.’s brother, a federal inmate, was detained at the ECCF during the relevant time frame of the conspiracy. Respondent admitted that he used his status as an attorney to secure meetings with the inmates who were part of the scheme, that he delivered the marijuana and tobacco to the inmates inside of an attorney conference room, and that he was paid approximately $500 in cash for each instance of smuggling. He admitted that he had smuggled contraband into the ECCF on eight occasions, in return for cash payments totaling $5,000 to $6,000.

 The attorney sought a one-year suspension

In urging a one-year suspension, respondent points to several factors in mitigation, which, he contends, provide a background for his otherwise aberrational conduct. Specifically, respondent’s wife had been diagnosed with breast cancer in 1994. Although she initially went into remission, she suffered relapses on numerous occasions and received treatment for approximately twenty years, until her death in December 2013. In the period leading up to her death, her cancer had spread to her bones, making movement about their house difficult. Respondent, therefore, made costly renovations to his home to accommodate his wife’s needs and limitations.

During the same period, respondent’s son developed an addiction to cocaine and began to steal from the family. He also opened credit cards in respondent’s name, thereafter incurring debt in the amount of tens of thousands of dollars. Because respondent did not want to burden his wife with their son’s problems, he kept them from her and "tried to take care of everything himself."

 A psychological examination led to a conclusion that the conduct was a "symbolic act of ’professional suicide,’ motivated by overwhelming feelings of desperation and loss associated with his wife’s death, bitterness over his [personal and financial] situation, and not caring what happened anymore due to clinical depression."

(Mike Frisch)

December 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Hard To Find Attorney Gets Lengthy Suspension

The Florida Supreme Court rejected as unduly lenient a referee's proposed sanction and ordered an attorney's suspension for one year.

 ...we reject Picon’s challenges to the sufficiency of the referee’s report and approve the referee’s findings of fact and recommendations of guilt. However, we disapprove the referee’s recommended discipline as too lenient  in light of the number of acts of client neglect committed by Picon and her prior disciplinary record. We instead impose a one-year suspension from the practice of law.

 The misconduct took place in three criminal matters and involved multiple failures to appear.

The referee also found that Picon frequently failed to notify the court and opposing counsel of conflicts in her schedule. Opposing counsel often attempted to reach Picon by phone to ascertain her whereabouts and whether or not she planned to attend a scheduled hearing. Such attempts, however, were often unsuccessful and voicemail messages could not be left for Picon because her inbox was routinely full. Also, judicial assistants and other court personnel would often go to great lengths to determine Picon’s whereabouts and whether she would be attending a hearing. Such lengths included court deputies utilizing the intercom system to contact each other in an attempt to ascertain Picon’s whereabouts and whether she would be attending a hearing.

The court rejected this contention

Picon argues that the report of referee in this case does not reflect the referee’s independent judgment and that the referee merely adopted the Bar’s proposed report of referee verbatim. As a general rule, a referee’s findings and recommendations must demonstrate independent decision-making. A referee is not precluded, however, from adopting one party’s proposed report of referee if the record reflects that the referee exercised independent decision-making in doing so.

The referee's proposed 91-day suspension was insufficient

...Picon’s misconduct is particularly egregious in that it resulted in a bench warrant being issued in the Jennings case for her client and her client’s incarceration for several days. In Fla. Bar v. Gass, 153 So. 3d 886 (Fla. 2014), an attorney, among other things, advised his clients to not comply with a subpoena to attend a deposition, failed to attend a scheduled deposition and court hearing on behalf of his clients, and failed to inform his clients that an order directing them to show cause why they should not be held in contempt had been issued. Id. at 888-90. The attorney’s misconduct ultimately resulted in a bench warrant being issued for his clients and the incarceration of his clients for three days. Id. The Court disapproved the referee’s recommended sixty-day suspension and, noting the particularly egregious nature of the attorney’s misconduct, imposed a one-year suspension. Id. at 892-93.

(Mike Frisch)

December 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Malpractice If Attorney Limits Representation

The Ohio Supreme Court reversed a denial of summary judgment for the defendant in a legal malpractice case

The issue on appeal in this case is whether the trial court’s grant of summary judgment in favor of an attorney and his law firm in a legal-malpractice action was appropriate. For the reasons that follow, we conclude that it is clear from the evidence that the attorney refused to undertake representation of the clients on the matter at issue and therefore he did not commit malpractice with respect to the matter. Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s judgment. 

Some background

The facts of the underlying case paint a tale of caution for all real estate investors...

Appellees Lorna B. Ratonel and her company Carmalor, Inc., entered into an agreement to purchase an apartment building known as Holden House in August 2007. Attorney Gail Pryse and her law firm, Keating, Muething & Klekamp, P.L.L. (collectively, “KMK”) represented Ratonel and Carmalor during that transaction. Ultimately, Ratonel, Carmalor, and Carmalor Ohio, L.L.C., which is also an appellee herein, engaged appellants, Mark Ropchock and his law firm, Roetzel & Andress, L.P.A, to file a legal-malpractice claim against KMK, based largely on Ratonel’s allegation that KMK failed to ensure that Holden House was inspected prior to the purchase. Ratonel also wanted appellants to pursue a legal malpractice suit against KMK relating to French Village, a building in Nebraska she had purchased.

The original complaint filed by Ropchock against KMK contained a paragraph that mentioned French Village, but a later-filed amended complaint did not mention French Village. Although the record reflects that Ratonel and Ropchock frequently discussed French Village, Ropchock did not file a legal malpractice claim relating to that property. The court directed a verdict in favor of KMK, and Ratonel engaged new counsel to represent her, Carmalor, and Carmalor Ohio in a legal-malpractice claim against appellants based in part on appellants’ failure to assert a legal-malpractice claim against KMK relating to French Village.

The court held that the representation was properly limited as allowed by Rule 1.2

To prove that an attorney owed a duty to a plaintiff with regard to a specific legal matter, the plaintiff must establish that the scope of the attorney-client relationship included the specific legal matter.

Here

Viewing the evidence most strongly in favor of Ratonel, we come to the same conclusion as the trial court. There is significant evidence in the record that Ratonel wanted Ropchock to represent her in asserting a legal-malpractice claim relating to the French Village transaction. There is also significant evidence that Ropchock seriously considered and investigated asserting a French Village claim. But there is clear evidence that he ultimately determined that such a claim was not viable and that he communicated to Ratonel that he was not going to represent her in asserting it.

We note that it is common for a client and counsel to discuss multiple potential claims and then later, after the attorney gathers evidence, agree to have the attorney pursue only those claims he believes are viable...

It is clear to us that the engagement letter limited the scope of representation in conformity with Prof.Cond.R. 1.2(c). It is equally clear that nothing in the letter indicates an intention on the part of appellants to represent Ratonel and her companies with respect to the alleged malpractice regarding the purchase of French Village. Nevertheless, the record is replete with references by both Ratonel and Ropchock to French Village. We will now examine the references relied upon by the parties and determine whether the initial scope of representation was expanded to include French Village.

(Mike Frisch)

December 8, 2016 in Clients | Permalink | Comments (0)

Robbing Peter To Snort Coke

The South Carolina Supreme Court accepted the consent disbarment of an attorney for misconduct in several matters, some of which are highlighted below.

One count involved admitted misuse of entrusted funds

At an interview in September 2015, respondent admitted misconduct in this matter. With regard to the settlement funds, respondent clarified that he deposited the money from the settlement into his trust account then used the funds to buy cocaine. He explained he had another case that he believed would settle for a significant amount of money and he intended to reimburse the Client B ledger when that happened. Respondent stated that Client B received the proceeds from the settlement, but that he failed to pay Dr. Arnold.

In another matter he received and stole a settlement

New Attorney informed Client C's president. Client C's president was shocked to learn that respondent had received payment of $15,000 and that the judgment had been satisfied. Respondent did not remit payment to Client C. On February 20, 2015, New Attorney filed a complaint with ODC.

Respondent did not respond to the Notice of Investigation, Notice to Appear, and Subpoena for Client's C's file and trust account records sent by ODC on February 20, 2015. At the September 25, 2015, interview, respondent admitted the conduct described above and stated he retained the money in his trust account and, over time, removed the funds to purchase drugs. He further admitted he signed the Satisfaction of Judgment and misappropriated the settlement funds.

And

During his September 25, 2015, interview, respondent admitted to three additional matters of misconduct that were not the subject of disciplinary complaints. It is believed that the three clients discussed below are unaware of respondent's handling of their settlement proceeds.

The court

We accept the Agreement for Discipline by Consent and disbar respondent from the practice of law in this state, retroactively to March 6, 2015, the date of his interim suspension.

(Mike Frisch)

December 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 7, 2016

Sore Feet

An Illinois attorney has filed a motion for consent disbarment in the wake of her September plea in the United States District Court for the Eastern District of Missouri to a health care fraud involving foot treatment.

The indictment alleged 

The Medicare Program reimburses health care providers, including podiatrists, for certain medically necessary foot care services provided to eligible beneficiaries. Medicare pays providers directly or pays the employer, if the provider has assigned the payments to the employer.

The Medicare Benefit Policy Manual (hereafter Medicare Manual) sets forth the Medicare rules for what services are covered and will be reimbursed by Medicare. With few exceptions, the Medicare program does not pay for routine foot care. The Medicare Manual states that the "services that normally are considered routine and not covered by Medicare include the following:

• The cutting or removal of corns and calluses;

• The trimming, cutting, clipping, or debriding of nails; and

• Other hygienic and preventive maintenance care, such as cleaning and soaking the feet, the use of skin creams to maintain skin tone of either ambulatory or bedfast patients, and any other service performed in the absence of localized illness, injury, or symptoms involving the foot. 

The conspiracy involved alteration of treatment records to falsely reflect reimbursable services, such as

On November 10,2011, the DON of Parkside Care Center complained to Aggeus' marketer lL. about the podiatry notes from the October visit. The DON stated: "The statement concerning patient M.M. being alert and oriented x3 is not true on any day. She cannot put words together to complain about toenails."

On February 21,2012, Dr. A.B. treated C.B. and created a progress note that falsely stated that the patient presents ambulatory. The note further falsely stated "the patient or staff request treatment because the nails are painful to such a degree as to affect ambulation and balance."

On April 25,2012, Dr. J.D., another Aggeus podiatrist, treated C.B. and created a progress note that falsely indicated C.B. presented ambulatory. The note further falsely stated that "the patient or staff requested treatment because the toenails are so painful as to affect ambulation or balance."

On May 8, 2012, 13 days after his previous visit, Dr. J.D. treated C.B. and created a progress note that falsely stated the patient presents ambulatory. The note further noted "the patient or staff requested treatment because the toenails are painful as to affect ambulation and balance."

From the motion

On September 14, 2016, Movant entered into a voluntary plea of guilty to Count One, which charged that from January 1, 2009 through September 25, 2015, Movant, her husband Dr. Yev Gray (“Gray”), and a former CEO and manager James Sayadzad (“Sayadzad”) conspired to defraud health care benefit programs, in violation of Title 18, United States Code, Section 371. Movant’s sentencing before United States District Court Judge Ronnie L. White is scheduled for December 15, 2016.

As part of that plea agreement, Movant admitted that her husband was a licensed doctor of podiatric medicine, a provider in the Medicare program, and president of Aggeus Healthcare, P.C. (“Aggeus Healthcare”) and Aggeus Healthcare, LLC (“Aggeus Global”) Sayadzad was the chief executive officer of Aggeus Healthcare and manager of Aggeus Global. Both Gray and Sayadzad owned Aggeus Healthcare and Aggeus Global (“Aggeus”)

Movant admitted that she was the director of corporate and legal affairs for Aggeus Healthcare, and that she supervised the company’s billing, finance, and accounts receivable departments.

In her plea agreement, Movant acknowledged that she knowingly joined an agreement to defraud the Medicare program and to make materially false, fictitious and fraudulent statements with respect to the Medicare program, in violation of Title 18 United States Code, Section 371.

In that plea agreement, Movant acknowledged that she and the other codefendants and their employees and contract podiatrists at their direction, created and caused the creation and use of false and fraudulent patient medical records and other documents.

Specifically, Movant admitted that Aggeus contracted with skilled nursing facilities to provide podiatric services to residents of long term care or assisted living facilities in at least 16 different states. In Missouri, Aggeus provided podiatric services to residents in at least eleven facilities, that Aggeus contracted with podiatrists to provide the podiatric services, that Movant’s co-defendants encouraged and pressured those podiatrists to provide services that were medically unnecessary. Movant and Gray also established an electronic medical record system that they knew would sometimes produce inaccurate progress notes to increase the likelihood of receiving Medicare reimbursement for services.

Movant also admitted that she, Gray and Sayadzad, and their employees and contractors, submitted and caused the submission of false and fraudulent reimbursement claims to Medicare; and that they either did not disclose, or actively concealed, that Aggeus had billed and been paid for services that were not provided or were not covered by Medicare, and did not return the overpayments to Medicare.

Although Movant acknowledged that the loss amount attributable to her participation in the conspiracy was difficult to determine, she stipulated that the amount of restitution was $990,061.

That's a lot of feet. (Mike Frisch)

December 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Censure Proposed For False Statement To Grocery Store Manager

An Illinois Board has proposed a censure of an attorney whose only proven misconduct was a false statement to a grocery store manager

The Administrator filed a Complaint against the Respondent on December 31, 2015. An Amended Complaint was filed on May 27, 2016. Count I of the Amended Complaint alleged that Respondent committed the crime of Disorderly Conduct, which reflects adversely on his honesty, trustworthiness, or fitness as a lawyer; and engaged in dishonesty by making a false statement to a grocery store manager. Count II alleged that Respondent committed the crime of Intimidation, which reflects adversely on his honesty, trustworthiness, or fitness as a lawyer; and used means that had no purpose other than to embarrass, delay or burden a third person.

The grocery store incident did not prove a Rule 8.4(b) violation

In this matter, we find that there is clear and convincing evidence that Respondent committed the criminal offense of Disorderly Conduct. Assistant State's Attorney Siena testified that she negotiated with Respondent in regard to a plea of guilty to the disorderly conduct as charged in a Criminal Information. (Adm. Ex. 1 at 2). She filled out a Plea of Guilty and Order on Plea of Guilty documents which she discussed with Respondent before he signed them. The Order Respondent signed states that the plea "was voluntarily arrived at" and "is supported by a factual basis." (Adm. Ex. 2 at 1-2). The Order, which was signed by the judge also states the "defendant is found guilty." Siena's testimony sufficiently showed that Respondent knew the nature of the charge to which he was pleading guilty and that his plea was voluntary. Thus, we find that Respondent's knowing and voluntary plea of guilty to disorderly conduct was an admission that he did, in fact, commit that offense, and the judge's Order shows there was a judgment of guilty grocery store incident led to a disorderly but not theft conviction.

 The same rule was not violated in emails to his mother's condo association

Ms. Delaney testified via telephone that she is 59 years of age and is a Senior Secretary at Presence Resurrection Medical Center, where she has been employed for 20 years. She has resided at Birch Tree Manor #6, a condominium in Chicago, since it was built about 37 years ago and has been the president of the condominium association board since about 1990. The treasurer of the association is Alfredo Velasco. In her position as president, Delaney, has contacted people about problems or issues to be addressed, receives complaints from tenants, and receives information about property damage and maintenance matters. (Tr. 104-109).

In January 2012, Delaney exchanged e-mails with the Respondent in regard to a leak in the condominium of Respondent's deceased mother. Delany has never met Respondent and her only contact with him has been through the e-mails. On January 14, 2012, Delaney received an e-mail from Respondent that stated:

Alfredo advised me he contacted you about a new leak . . . Please contact these assholes upstairs and tell them if they want to avoid spending the next two years in court with me they need to do 2 things, pronto:

1)    Fix the leaks. Our insurance company is already filing suit against them, so tell them to spend some money and fix the problem-maybe this time it is their water heater-whatever.

2)    Control their kid, [he] was driving up and down the floor with his bike or whatever until I left for the airport at midnight. This is not a problem for us, but the new owner and they are going to come to blows, a prediction I guarantee. Ignorant pollacks.

(Adm. Ex. 3 at 1-2).

Delaney said that after reading the above e-mail, she sent it to the condominium association attorney, Jill Rose Quinn, and sought advice on how to proceed. (Adm. Ex. 3 at 1). After receiving advice from Ms. Quinn, Delaney sent the following e-mail to Respondent on January 17, 2012:

In answer to your email, it is not the Board's responsibility to intervene in disputes between owners. Contact [the other owner] at the address/telephone number you were provided previously.

(Adm. Ex. 3 at 3).

Delaney sent a copy of the above e-mail to the association treasurer, and to a brother and sister of the Respondent. (Tr. 109-15).

On January 17, 2012, Respondent sent another e-mail to Delaney. This e-mail stated:

Is no problem, I will sue them and the Association and then you can see these assholes in person at the courthouse and you can tell them, look you 2 ignorant jerks, you are a pain in the Ass'n' ass and you are costing us money. Figure it out. That's why they have courts. Adios.

(Adm. Ex. 3 at 4).

Delaney said she was "shocked" when she read the above e-mail and she had no idea how to respond to it. She then sent the e-mail to attorney Quinn. (Adm. Ex. 3 at 4). Later on January 17, 2012, Respondent sent Delaney another e-mail, in which he stated:

Further, if you really want me to solve this on my own, your asshole co-board member who you are protecting is going to get a crowbar over his head. Maybe in the legs because his head is too hard, he won't get the point.

(Adm. Ex. 3 at 5).

Delaney sent the e-mail to attorney Quinn. Delaney explained that the e-mail "scared" her and she "felt threatened for herself and for Alfredo." She added: "I realized that his law offices were right down the street from us, near his mother's condo [and] I was afraid that he would come down and carry out what he had said." Delaney called Alfredo and told him what occurred. She added that she "wanted to pick up the phone and call the police." (Tr. 115-22).

No violation

There is no allegation in the Amended Complaint that the Respondent was representing a client when any of his conduct alleged in Count II occurred. Respondent was clearly attempting to have a leak in the condominium unit of his deceased mother repaired. The specific charge, set out above, does not refer to Respondent representing a client.

Additionally, we believe that Respondent had a valid basis for sending the e-mails to Ms. Delaney. That is, he wanted the condominium association to assist him in getting the owner of the unit from which the water was leaking to stop the leak. While we do not approve of some of the language he used in the e-mails, he was addressing an issue to the president of the association. Ms. Delaney testified that, in her position as president of the association, she receives complaints about property damage and other problems and issues that tenants want to be addressed...

Clearly the charge of intimidation against Respondent did not involve fraud, dishonesty, moral turpitude, personal morality, breach of trust, serious interference with the administration of justice, or a pattern of minor offenses. Although, intimidation may be considered a "crime of violence" the fact remains that there is no charge or evidence that Respondent engaged in, or took any steps to commit, any act of physical violence against anyone. See U.S. v. Unthank, 109 F.3d 1205, 1209-10 (1997).

Based upon the above, we find that the Administrator did not prove by clear and convincing evidence that the Respondent committed a criminal act, intimidation (720 ILCS 5/12-6(a)(1)) that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.

Result

In this case, the Administrator requested the sanction of suspension for six months and until further order of the Court. (Tr. 138). We note that the Administrator's recommendation was based upon all of the charges of misconduct, and we have found that only one of the charges was proved.

We find this case to be highly unusual in that the aggravation is more egregious than the misconduct. The only misconduct charged and proved was that Respondent engaged in dishonesty by knowingly making the false statement to Phillip Munoz, a grocery store manager, that Respondent "had paid for the groceries in his cart." The false statement did not enable Respondent to remove the items from the store. Also, the misconduct did not occur while Respondent was representing a client, and did not involve any false statement to a client, court, or other attorney.

In aggravation, the Respondent failed to fully cooperate in his disciplinary proceedings. By failing to fully cooperate, Respondent caused the Administrator to file motions that otherwise would have been unnecessary. The Respondent's failure to return and participate in the hearing following a short recess demonstrated a lack of respect for the disciplinary process of the Supreme Court. Also in aggravation, the Respondent engaged in dishonesty by leaving the Hy-Vee without paying the $6.44 he owed for a meal he ate.

There is also mitigation in this case. The Amended Complaint shows that Respondent was licensed to practice law in 1980, and it was stipulated that he has not been previously disciplined. Thus, Respondent has had a lengthy legal career of more than 35 years without having been previously disciplined. Also, Respondent did not engage in a pattern of misconduct, but rather his misconduct involved a single statement during a single incident. Additionally, the false statement Respondent made to the grocery store manager was not planned in advance, but was a spur of the moment statement made without any significant time for reflection. Thus, it was a "single, quick, and unreasoned failure of judgment." In re Thebeau, 111 Ill. 2d 251, 256, 489 N.E.2d 877 (1986).

(Mike Frisch)

December 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Scenes From A Non-Traditional Marriage

The Maryland Court of Special Appeals agreed with the lower court that a child's grandparents should have custody

After a five-day custody merits hearing, the Circuit Court for Montgomery County granted physical and legal custody of the sole minor child ("Child") of Natasha Burak ("Wife") and Mark Burak ("Husband") to Husband’s parents (individually, "Grandfather" and "Grandmother," and, collectively, the "Grandparents"). After a merits hearing relating to property distribution, the circuit court determined that money the Grandparents had contributed toward the purchase of Wife and Husband’s marital home was a gift conditioned on Husband and Wife’s continued marriage and use of the home, for the sole benefit of the Child, and because the divorce violated that condition, the Grandparents were entitled to recover those funds. After a child support hearing, the court ordered Husband and Wife to pay child support to the Grandparents. Wife challenges all of these decisions; Husband does not, and apparently has decided to align his interests with his parents. We dismiss one of Wife’s challenges for failure to provide a transcript, reverse the judgment in favor of the Grandparents as to the marital home proceeds, and otherwise affirm.

 The story

Husband and Wife were married on October 7, 2006, and Child was born on June 24, 2008. Husband testified at the custody hearing that one week before the wedding, Wife told him that she had been diagnosed with multiple personality disorder. On June 20, 2011, Husband and Wife, using $131,000 from the Grandparents as a down payment, purchased a $355,000 home in Silver Spring.

During the marriage, Husband and Wife were involved in a polyamorous relationship with a woman we’ll call M.  Husband and Wife met M in late 2008 when they all lived in the same apartment building. Husband testified that about two weeks after meeting M, he and Wife talked to her about beginning a sexual relationship with her. M testified that as part of this discussion, Wife told her that she had dissociative identity disorder or multiple personality disorder. Wife, however, testified that the sexual relationship with M started "[b]y [Husband] introducing it." Husband, Wife, and M met "[a] couple . . . to a handful [of] times a month" until M moved into the family home in 2012.

From September 2012 through February 2013, Husband, Wife, and M participated in counseling because Husband wanted M to stay in the house while Wife wanted M to leave. The sexual relationship between M and Wife had ended in December 2012. Wife testified at the custody hearing that she felt coerced by Husband, but offered no other evidence that Husband was coercing or influencing her to have a relationship with M. Husband and M testified that Husband never forced Wife to have a sexual relationship with M. 

During their marriage, Husband and Wife smoked marijuana and used several other drugs together and with M. They scheduled their drug use to allow Husband and Wife to coordinate care for the Child by the Grandparents at the Grandparents’ home. These sessions occurred "[a]nywhere from every other weekend to once a month, to sometimes it would be a few months." Wife testified that she only used drugs at Husband’s insistence, but offered no other evidence that Husband "coerced" or "influenced" her. Wife kept a calendar that indicated when she was "tripping." Both Husband and M testified that Wife was never forced to use drugs, and Husband testified that it was Wife’s idea that they use cocaine.

A footnote 

Wife also had a long-term sexual relationship with another man during the marriage. We have hesitated somewhat to include these details, since the divorce itself is uncontested. Ultimately, though, as we explain later, the chaos and instability of Child’s home environment mattered to the custody decision (although not the parents’ sexual preferences or orientations), and we need to paint an accurate picture of his circumstances.

The court affirmed as to custody

At the conclusion of the custody merits hearing, the court made several findings, then concluded from those findings that both Wife and Husband were unfit parents and that exceptional circumstances justified consideration of third-party custody. The court identified and relied on the McDermott standard, which states the presumption that parents should have child custody unless they are unfit or exceptional circumstances exist which make such custody significantly detrimental to the child. Wife disagrees, but we find that the record supports the court’s conclusions.

The court began by finding that Wife and Husband were "extremely selfish" and neglected the Child. The court found that Wife lied throughout the case about her drug use and testing, her relationship with M, her mental health, and Child’s school attendance following the Crisis Center referral, and that she failed to take responsibility for her actions. The court found "that [Wife] still takes [drugs] or she’s still ready to take them." And the court cited Wife’s unconcerned attitude about Child’s volatile and violent behavior, noting that she left Child with Grandmother after the September 4 incident at his school rather than engaging directly, and that she had failed to make any adjustments to meet Child’s needs. In particular, the court noted that it "didn’t see any real[] love or total attachment" between Wife and Child.

(Mike Frisch)

December 7, 2016 | Permalink | Comments (0)

Privilege Assertion Subject To Immediate Appellate Review

Kathleen Maloney and Dan Trevas summarize another Ohio Supreme Court decision

A court order compelling the production of materials, which would allegedly breach the confidentiality guaranteed by attorney-client privilege, is a final, appealable order, which can be subject to immediate review by an appellate court, the Ohio Supreme Court ruled today.

The Court also drew the same conclusion today in a second case with similar discovery issues but involving grand jury proceedings rather than civil actions.

In the civil case, the Court determined that because the Cleveland Clinic and Cleveland Clinic Health System “plausibly alleged” that attorney-client privilege would be violated by the release of a hospital report about a 2012 slip-and-fall incident, the trial court’s decision compelling disclosure was a final, appealable order. Allowing an appeal only after the document is disclosed and the trial court issues final judgment in the case would not provide an adequate remedy, the lead opinion written by Justice Judith Ann Lanzinger stated.

However, claims during discovery asserting certain other protections – such as attorney work-product doctrine – may require more than a mere statement that materials are privileged and instead may require a showing that an adequate remedy is not available after a court’s final judgment, Justice Lanzinger wrote.

Justice Sharon L. Kennedy and two other justices concurred only in the Court’s judgment that the trial court’s order to provide the hospital incident report was final and appealable. In a concurring opinion, Justice Kennedy disagreed with the distinctions made in the lead opinion between attorney-client privilege and attorney work product. In her view, a court order requiring the release of allegedly privileged documents, whether believed to be protected by attorney-client privilege or by attorney work-product doctrine, is always a final, appealable order because the release of the document is an action that cannot be undone.

As the lone dissenter, Justice Paul E. Pfeifer countered that the Court has improperly characterized the hospital incident report a product of attorney-client privilege, when it was simply a business record.

Woman Sues After Fall in Hospital, Requests Report
In March 2014, Darlene Burnham filed a civil lawsuit against the clinic and some of its employees, alleging that she slipped and fell in July 2012 in her sister’s hospital room. Burnham claimed that a clinic employee poured liquid on the floor and did not alert her to the hazard.

Among other information, Burnham asked during discovery for the incident report the clinic had created after she fell. The clinic maintained the report was shielded from discovery based on various protections, including attorney-client privilege.

The trial court reviewed materials filed under seal, including the hospital report and briefs from both sides on the issue, and then ordered the clinic to provide the report to Burnham.

The clinic appealed to the Eighth District Court of Appeals, which dismissed the matter because it concluded it had no jurisdiction to review the appeal based on the 2015 Ohio Supreme Court decision Smith v. Chen. The Eighth District stated the appeal was not made from a final, appealable order because the clinic had not established that it would be harmed by the disclosure of the incident report in the manner stated in R.C. 2505.02(B)(4). The statute explains when orders are final and can be appealed.

The hospital filed an appeal with the Ohio Supreme Court, which agreed to consider the issues.

Court Clarifies Chen
Justice Lanzinger noted that the Court accepted this case in part to clarify Chen, in which the Court reviewed a provision in R.C. 2505.02(B)(4) to decide whether a discovery order involving a surveillance video described as attorney work product was final and appealable.

She reasoned that the Court’s ruling in Chen was limited because Chen did not meet the requirement of R.C. 2505.02(B)(4)(b), which states an appellant must establish that he “would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.”

“As some confusion seems to exist over the breadth of that decision, we limit it solely to its facts,” she wrote. “We see no need to overrule the case altogether despite the impassioned arguments within the lengthy concurring opinion.”

She explained that the Chen decision was not broad or expansive, but instead dealt only with the attorney work-product doctrine.

“We now clarify that Chen did not apply to the attorney-client privilege,” she stated.

Attorney-Client Privilege vs. Attorney Work-Product
Justice Lanzinger wrote that differences between the attorney-client privilege and the attorney work-product doctrine also explain why Chen does not control the outcome of this case. She explained that the main purpose of the attorney-client privilege is to promote open communication between attorneys and clients, while work-product protections “prevent an attorney from taking undue advantage of his adversary’s industry or efforts,” citing a court rule for discovery in civil cases.

Unless a waiver or exception applies, attorney-client privilege gives complete protection. However, based on judicial rules and common law, the work-product doctrine may provide protection from discovery, Justice Lanzinger wrote. Although the privilege and the doctrine could apply to the same material, the protections do not overlap fully, she noted.

“Exposure of the information that is to be protected by attorney-client privilege destroys the confidentiality of possibly highly personal or sensitive information that must be presumed to be unreachable,” she explained.

“But the same guarantee of confidentiality is not at risk with an attorney’s work product,” she continued. “[A]ny harm from disclosure would likely relate to the case being litigated, meaning that appellate review would more likely provide appropriate relief. … [I]t does not necessarily involve the inherent, extrajudicial harm involved with a breach of the attorney-client privilege.”

She added that trial courts should explain their reasons when ordering materials to be produced in discovery because parties may claim many types of privilege when arguing against disclosure.

In this case, “[b]ecause the [c]linic raised a colorable claim that its report was protected by the attorney-client privilege, the court’s order compelling disclosure of that report was a final, appealable order,” Justice Lanzinger wrote. The Court returned the case to the court of appeals, ordering it to evaluate whether the trial court’s decision to release the hospital incident report was made in error.

“Contrary to the dissent’s view, we are not characterizing the requested material as being covered by the attorney-client privilege, but are merely requiring appellate review of the trial court’s decision,” Justice Lanzinger noted.

Concurring Justices Dispute Work-Product Distinction
Justice Kennedy explained that she agrees that the trial court’s order to give Burnham the hospital report was a final, appealable order. However, she described the lead opinion’s analysis as “incomplete and disingenuous.”

The lead opinion “manufactures an artificial distinction” between the attorney-client and work-product privileges, then creates a new rule and distinguishes Chen to try to salvage that decision, she maintained.

Justice Kennedy stated that the lead opinion’s conclusion fails to “recognize the common-law origins of the work-product doctrine and that some of the protection provided by the work-product doctrine exceed the protection of [the Civil Rules]. The conclusion also elevates statutory privileges over the work-product doctrine set forth in [the Civil Rules], even though the Civil Rules are promulgated pursuant to the authority conferred upon the court by the Ohio Constitution.” 

She wrote that the myopic nature of the lead opinion has diminished the status of the work-product privilege, which is essential to protecting the attorney-client relationship.

“With this decision, the court opinion systematically declares that a document allegedly privileged under the work-product doctrine does not meet the standard established in R.C. 2505.02(B)(4)(b) unless some special showing is somehow made,” her concurring opinion stated. “Given that Civ.R. 26 provides protection to a broad class of documents and materials, the release of privileged documents necessarily puts the party protecting these materials into the category of those ‘not … afforded a meaningful or effective remedy by an appeal following final judgment.’ A released document never regains privileged status. The ‘proverbial bell cannot be unrung.’”

Justice Kennedy added, “Limiting Chen as applying only to an asserted privilege for work-product materials and not to materials covered by attorney-client privilege is without basis, and the folly of that exercise will been seen in the litigation that is sure to follow.”  Therefore, she stated that the Court should overrule Chen and restore the stability and predictability to the law as it existed before that ruling. 

Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion.

Dissent Maintains Report Was Not Privileged
In his dissent, Justice Pfeifer described this lawsuit as a “run-of-the-mill, wet-floor, slip-and-fall case.” He took issue with the Court’s elevation of the hospital’s incident report to a document protected by attorney-client privilege – “to protect the Cleveland Clinic from what exactly — the disclosure of its top-secret ratio of water to Mop & Glo?”

He noted that the trial court reviewed the report in camera and decided it was not privileged. Describing the report as a business record that involved no interaction between the hospital and its counsel, he concluded the trial court decision can be reviewed through the typical appeals process.

2015-1127. Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.

Video camera icon View oral argument video of this case.

GRAND JURY PROCEEDINGS
Court Also Addresses Grand Jury Orders

The Court also addressed the appealability of orders compelling document production in the context of grand jury proceedings.

In a separate opinion authored by Justice Lanzinger, the Court found that an order enforcing a grand jury subpoena and ordering the production of allegedly privileged information is a final order that can be appealed.

The decision resolves a conflict among a recent Eighth District Court of Appeals decision and opinions from 2002 and 2003 by the Fourth and Tenth District appellate courts. All the documents in the Eighth District case are sealed, and none of the parties are identified.

Company Seeks to Shield Documents from Grand Jury
A Cuyahoga County grand jury issued subpoenas to individuals associated with the appellants in the case. The recipients moved to quash the subpoenas, which sought documents and testimony, arguing the information was protected by attorney-client privilege, the “attorney work-product doctrine,” and the “common-interest doctrine.” The trial court overseeing the grand jury denied the motions, finding the materials were no longer or never were protected by a privilege.

The recipients appealed to the Eighth District, which declined to address the matter. The appellate court reasoned that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3) and that an order requiring the production of privileged information is not a “provisional remedy” subject to appeal under R.C. 2505.02(B)(4). The Eighth District also certified its decision was in conflict with the Fourth and Tenth districts and the Supreme Court accepted the case to resolve the conflict.

Grand Jury Order Subject to Appeal 
Justice Lanzinger explained the term “action” is not defined in R.C. 2502.02. To determine the meaning of the term, the Eighth District turned to the definition of “action” in R.C. 2307.01, which defines it as a proceeding that ends with a judgment or decree. Because grand jury proceeding are investigatory with no judgment or decree, the Eighth District concluded they are not actions that can be appealed.

Justice Lanzinger noted R.C. 2307.01 pertains to civil cases and not criminal proceedings. She wrote the Fourth and Tenth districts took a different approach, finding the motion to quash a grand jury subpoena is an “ancillary action”that aids a grand jury. That reasoning implies that a grand jury proceeding is a “provisional remedy” under the law, which then subjects the proceedings to the test in R.C. 2505.02(B)(4) to determine if an affected party can appeal.

While the Ohio Supreme Court has never addressed whether grand jury proceedings are actions, Justice Lanzinger cited the Court’s 1980 Bernbaum v. Silverstein decision, which found grand jury proceedings are “ordinary proceedings” similar to the proceedings of criminal courts.

“The proceedings involve the regular process of our criminal procedure and end in the grand jury’s production of either a no bill decision or true bill decision, which will then result in a judgment for either the defendant or the state. Under the broader definition of ‘action’ supplied in Bernbaum, a grand jury proceeding constitutes an action,” she wrote.

Justice Lanzinger also noted the Court’s decision applies only to claims of documents protected by attorney-client privilege, and not to claims of work product or common-interest doctrine.

“Our conclusion that an order enforcing a grand jury subpoena and ordering of allegedly privileged information is final and appealable thus fits within the framework of our criminal procedure, for the only way to prevent grand juries from potentially violating a privilege and forcing parties to disclose privileged information is to allow those parties the opportunity to appeal before divulging that information,” she concluded.

Chief Justice O’Connor and Justices Pfeifer and O’Neill joined Justice Lanzinger’s opinion. Justice O’Donnell concurred in judgment only and noted that he concurred in the conclusion that the order enforcing a grand jury subpoena for the production of allegedly privileged information is a final order.

Concurring Justice Maintains Ruling Will Cause Confusion
Justice Kennedy issued a separate concurring opinion in judgment only, stating she agreed with the majority that the grand jury proceeding constitutes an action. However, she maintained the majority relies on the Burnham decision, which distorts the significance of the attorney work-product doctrine, and will cause confusion for trial courts and attorneys.

Justice Kennedy stated that the court’s opinion continues the disservice to the bar and bench begun in Chen: “As a result of this new legal architecture, trial courts must now consider materials protected by attorney-client privilege in a separate framework from those protected by work-product privilege, based on the source to the privilege.” 

She also wrote that the majority’s broad syllabus language raised many questions. For example, does a litigant merely need to allege that the material sought contains privileged information? Does a trial court need only determine whether the privilege was adequately “alleged”? 

In again concluding that Chen should be overruled, Justice Kennedy stated that “the parsing of the term ‘privilege’ in Burnham typifies the problem we have brought upon ourselves by failing to recognize that Chen was wrongly decided

Justice French joined Justice Kennedy’s opinion.

2015-1181 and 2015-1182. In re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.

Video camera icon View oral argument video of this case.

(Mike Frisch)

December 7, 2016 in Privilege | Permalink | Comments (0)

Ohio Judicial Candidate Suspended: Ad Suggested Incumbant Served Whiskey To Minors

Dan Trevas has his usual excellent summary of a discipline decision on the web page of the Ohio Supreme Court

An unsuccessful candidate for judge of the Eleventh District Court of Appeals today was suspended by the Ohio Supreme Court from the practice of law for one year with six months stayed for committing misconduct during his 2014 race.

Ronnie M. Tamburrino of Rock Creek violated the Ohio Judicial Code of Conduct including two infractions of “knowingly or with reckless disregard” disseminating false information about his opponent, incumbent Judge Timothy P. Cannon, in two televised campaign commercials.

Justice Judith Ann Lanzinger in writing for a majority of the Court held that Tamburrino’s statements were false and “impugned the integrity of his opponent as a jurist and public servant.” The majority concluded that his actions endangered the independence of the judiciary and required an actual license suspension.

In a dissenting opinion, Justice Judith F. French wrote that states have the right to regulate judicial elections differently than other political elections, but the political speech of judicial candidates still receive the highest First Amendment protections. While she found Tamburrino’s statements “distasteful,” she maintained the ads were reasonably susceptible to truthful interpretations and protected by the First Amendment.

The Campaign Commercials
In the last weeks of his campaign, Tamburrino broadcast two campaign ads challenged by the Cannon campaign as false. One commercial stated: “Cannon won’t disclose his taxpayer funded travel expenses.” The second commercial criticized Cannon’s concurring opinion in the Eleventh District’s 2008 State v. Andrews case.

Because Cannon’s travel expenses were readily available as public record and no one asked Cannon to “disclose” his expenses, Cannon’s campaign notified Tamburrino that the first ad was false. In the second commercial, a faceless, robed judge stands at a courtroom bench pouring Jack Daniels whiskey and serving it to children. A voice states: “Everyone knows that a judge would never serve alcohol to kids in a courtroom. But appellate Judge Tim Cannon did something almost as bad. In the case State versus Andrews, Cannon ruled that cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn’t a serious crime. Cannon doesn’t think teenage drinking is serious. What else does he think isn’t serious?  We can’t afford Tim Cannon’s bad judgment. Elect Ron Tamburrino to the Eleventh District Court of Appeals.”

In Andrews the Eleventh District ruled police needed to obtain a warrant to enter a house without a homeowner’s consent and search a party where underage drinking occurred. The court concluded there were no “exigent circumstance” that required immediate intrusion by the police, noting the noise from the party had stopped, the scene around the house was secure, no one was attempting to escape, evidence of the alcohol would not be destroyed, no one appeared to be in danger, and the homeowner was complying with a request for identification when the police officer forced his way past the homeowner.

Cannon stated: “While I emphasize that I do not wish to impede an officer’s duties to enforce the laws against underage drinking, there was not enough evidence of ‘exigent circumstances to validate a warrantless forced entry and search of [the] home.’ ” His opinion also noted that the crime of giving alcohol to minors is not among the serious or violent crimes that constitute exigent circumstances in and of themselves. He noted the problems with contributing to underage drinking, but recognized that individuals must be afforded their Fourth Amendment rights under the U.S. Constitution to be secure in their homes.

The commercials aired throughout the campaign despite the request of Judge Cannon’s request to stop due to their falsity.

The Disciplinary Action
Five days before the election, Paul Malchesky, Cannon’s attorney and campaign treasurer, filed a grievance with the Board of Professional Conduct. The board chose not to act on it because of the pending election, but forwarded it to the Office of Disciplinary Counsel. After completing its investigation disciplinary counsel filed a complaint with the board in December 2015, and a three-member board panel heard the case in May 2016.

The disciplinary panel found the teenage-drinking and expense-disclosure statements patently false and determined that Tamburrino made the statements either knowing that they were false or with reckless disregard of their falsity. The panel recommended that Tamburrino be suspended from practicing law for six months, fully stayed on the conditions that he not commit further misconduct, and  attend a six-hour continuing legal education course regarding judicial campaigns.

The full board adopted the panel’s findings but recommended a one-year suspension with six months stayed, noting that Tamburrino also refused to acknowledge any inappropriateness of the content of the false commercials. The board warned of the chilling effect such ads could have on judicial independence and the ability of judges to freely express views in court opinions.

Constitutional Challenges
Tamburrino objected to the finding that the statements were false, but contended the board’s decision is unconstitutional because it punishes misleading rather than false speech. He argued his sanction violated his First Amendment free speech rights and cited In Re Judicial Campaign Complaint Against O’Toole, a 2014 Supreme Court decision.

Justice Lanzinger explained that in O’Toole, the Court struck down the portion of the judicial campaign rule regarding misleading speech as unconstitutional but noted that because Tamburrino was charged with false speech, the O’Toole decision does not apply. She also noted that the U.S. Sixth Circuit Court of Appeals clarified that federal rulings relied upon by Tamburrino do not apply to judicial-conduct rules like those in Ohio.

Court Concludes Statements Were False
In response to the claim that the statement “Cannon doesn’t think teenage drinking is serious” is true, Justice Lanzinger remarked that Cannon’s opinion in the Andrews cased does not state that teenage drinking is not serious. Cannon was stating the crime of contributing to the delinquency of minors by serving them alcohol was not an emergency condition that met the emergency standard of “exigent circumstances” that justifies a warrantless search of property.

“Although he implied that teenage drinking is not an emergency situation that requires immediate action, he neither stated nor implied that it is not serious,” Justice Lanzinger wrote.

She noted that the statement “Cannon doesn’t think teenage drinking is serious,” by itself, is false, and information would have to be added to make the statement true, which the commercial failed to do. Cannon made other statements in his opinion indicating he took underage drinking seriously, and Justice Lanzinger concluded that Tamburrino was at least acting recklessly about the statement’s falsity.

With respect to the travel expenses statement Tamburrino said he meant that Cannon had not posted the expenses as part of a detailed budget and expense summary on the court’s website. Justice Lanzinger noted that the statement “Cannon won’t disclose his taxpayer funded travel expenses” by itself is false and that “an enormous amount of information would needed to be added to make the statement true in a way that Tamburrino claims.” She also rejected characterization of his statement as merely an opinion about what he thinks Cannon would do in the future if asked to produce documentation of travel expenses.

Sanction to Protect Public
When considering an appropriate sanction for Tamburrino, Justice Lanzinger noted the O’Toole decision stated the purpose of sanctioning judicial candidates “is not to punish the offender, but to protect the public.” The Court finds the sanctions serve as a deterrent to similar violations by candidates in future elections, she added.

The board found Tamburrino had no prior disciplinary record and was cooperative in the proceedings, but it also found he committed multiple violations of the rule by airing two commercials and timing them to deprive Cannon of the opportunity to counter their effect. The Court agreed with the board’s finding that Tamburrino lacked remorse for his actions.

“The problem is not that Tamburrino denied the charges that he crossed the line into knowing falsehoods; it is that Tamburrino denied that he even came close to the line and attacked those who said otherwise,” Justice Lanzinger wrote.

Justice Lanzinger observed that after Cannon’s committee complained about the teenage-drinking commercial, Tamburrino accused Cannon and the judge who wrote the majority opinion in the case of making up facts. He attacked the Ohio State Bar Association’s Board of Governors’ Government Relations Committee when it issued a letter criticizing the teenage-drinking commercial.

Tamburrino argued he should not be penalized but maintained that if he is, any sanction should not exceed previous sanctions imposed on past judicial candidates. The Court rejected the argument, finding that Tamburrino’s actions exceeded the behavior of other candidates in the prior cases. The Court imposed the one-year suspension with six months stayed on the conditions that he does not commit further misconduct and attends the course on judicial campaigns.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William O’Neill joined Justice Lanzinger’s opinion. Justice Terrence O’Donnell concurred in judgment only.

Dissent Argues Ad Claims Protected Speech
In her dissent, Justice French noted that while the O’Toole decision recognizes a compelling state interest in regulating judicial elections differently from other political elections, the free-speech rights of judicial candidates still commands the highest level of First Amendment protection. 

She wrote that Tamburrino’s statements must be given “breathing space” under the First Amendment because reasonable readers or listeners to the statement could interpret them as true. She noted Cannon wrote in his separate concurring opinion that: “I would want nothing in this decision to deter an officer from exercising his duty if he clearly observes a serious misdemeanor offense or an offense of violence, or if he has other good cause to make an intrusion.”

Justice French noted that Cannon’s opinion uses the word “serious” to make a distinction between a “misdemeanor charge” and “a serious misdemeanor offense or an offense of violence.”

“In Judge Cannon’s view, the misdemeanor charge in Andrews for contributing to the delinquency of a minor did not justify the warrantless entry, but a ‘serious misdemeanor offense’ would provide sufficient justification. A reasonable reader could conclude that Judge Cannon did not consider the charged offense to be a ‘serious misdemeanor offense,’ ” she wrote.

While the ad did not explain the full context of Cannon’s opinion, Tamburrino’s statement was readily susceptible to truthful or differing interpretations and therefore did not violate the judicial-conduct rule prohibiting false campaign statements, she maintained.

Regarding the expense disclosure ad, Justice French wrote that Tamburrino suggested that Cannon did not post his travel expenses on the website even though Cannon was campaigning on the issue of posting judges’ salaries and expenses on court websites. She noted Cannon at some point arranged to post a summary of the Eleventh District’s expenses on the court’s website, but did not post his travel expense report.

“When viewing Tamburrino’s expense-disclosure ad in this context, a reasonable viewer of the ad could have construed Tamburrino’s statement as true,” she wrote.

Rather than penalizing candidates for their speech, Justice French advocated that the matter should be resolved by letting the candidates themselves publicly debate the truthfulness of their statements.

“I give no credence to Tamburrino’s statements about his opponent, and neither, apparently, did the voting public, who re-elected Judge Cannon in 2014. But we must protect speech even when—and, perhaps, especially when—we dislike it,” she concluded.

Justice Sharon L. Kennedy joined Justice French’s opinion.

2016-0858. Disciplinary Counsel v. Tamburrino, Slip Opinion No. 2016-Ohio-8014.

Video camera icon View oral argument video of this case.

December 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Immutable Fact Sinks Malpractice Claim In Maritime Litigation

An order dismissing a legal malpractice action was affirmed by the New York Appellate Division for the First Judicial Department.

In this legal malpractice action, plaintiff Optical asserts that its former attorneys, Rubin, Fiorella and Friedman, mishandled the litigation of a maritime action in which it sought to recover damages caused when its submarine fiber optical cable was struck and destroyed by an anchor inadvertently released from a cargo vessel owned by Marbulk Canada, Inc. Rubin Fiorella, on behalf of Optical, brought a maritime action in federal court against the vessel and Marbulk. In the maritime action, Optical alleged that the vessel dropped its anchor in an area designated for laying cable, and that Marbulk was therefore liable. The parties agreed that Marbulk would be liable only if the vessel was located in the designated cable area when its anchor dropped.

Marbulk successfully moved for summary judgment dismissing the complaint in the maritime action. The district court found, inter alia, that sonar data evidence submitted by plaintiff Optical showed that the vessel was outside the boundaries of the designated cable area (Optical Communications Group, Inc. v M/V Ambassador, 938 F Supp 2d 449 [SD NY 2013] [Optical I], affd. 558 Fed Appx 94 [2d Cir 2014] [Optical II]). The conclusion was also supported by evidence submitted by Marbulk, specifically, a screen shot of Simplified Vessel Data Radar (SVDR) data that pinpointed the location of the vessel outside the boundaries of the cable area. As indicated, that decision was affirmed on appeal by the Second Circuit.

In the instant action, plaintiff alleges that, as noted by the Second Circuit in Optical II, Rubin Fiorella failed to preserve an objection to the SVDR data submitted by Marbulk in support of its motion, and also failed to renew a discovery motion that had been denied without prejudice to renewal. Optical alleges that but for these failures, it would have defeated the motion for summary judgment and ultimately prevailed in the maritime action.

The motion court properly found that the Second Circuit's order in Optical II, affirming [*2]Optical I, is documentary evidence within the meaning of CPLR 3211(a)(1), and that its holding flatly contradicts the legal conclusions and factual allegations in the complaint (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014]; Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78 [1st Dept 2003], lv denied 100 NY2d 512 [2003]).

Even assuming that Rubin Fiorella had successfully challenged the admissibility and authenticity of the SVDR data proffered by Marbulk, the district court found that plaintiff Optical's own sonar data evidence, submitted through its expert, indicated that the vessel was outside the cable field when it released its anchor. Thus, plaintiff's evidence submitted in the maritime action refutes its allegations in this action that, but for Rubin Fiorella's negligence, it would have prevailed in the maritime action (see e.g. Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

The district court's decision also refutes Optical's allegation that, but for Rubin Fiorella's failure to conduct further discovery, it would have prevailed in the maritime action, since that court found that the record with respect to the location of the vessel was "immutable and complete" so that "further discovery will not recreate the events underlying the anchor drop or enhance the existent evidence in any meaningful way" (Optical I, 938 F Supp 2d at 464; see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]).

December 7, 2016 in Clients | Permalink | Comments (0)

Aggravating Factor: Calling Disciplinary Proceedings A "Witch Hunt"

The Indiana Supreme Court imposed at least an 18-month suspension without automatic reinstatement

We find that Respondent, Divina K. Westerfield, committed attorney misconduct by improperly soliciting employment, failing to refund unearned fees, and engaging in the unauthorized practice of law in Florida. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

Details

During relevant times, Respondent was admitted to practice law in Indiana. However, she was not licensed to practice law in Florida, where the conduct at issue occurred. In 2011, Respondent began associating herself with a non-lawyer marketing representative named Wayne Tope, who advertised quiet title actions as a strategy for homeowners to gain leverage against mortgage holders and/or to obtain “free and clear title” of a house. On behalf of Respondent, Tope signed up several homeowners for legal representation by Respondent. Through Tope, those homeowners executed flat fee contracts for legal representation and paid the entire fee up front by providing Tope with a series of post-dated monthly installment checks payable to Respondent, which Respondent deposited into an IOLTA account that she alone controlled.

For several months, Respondent was the only attorney associated with her law firm, which was located in Indianapolis. In February 2012, Respondent registered her firm as a limited liability company with the Florida Secretary of State, and thereafter Respondent entered into a series of successive partnership agreements with various attorneys licensed in Florida, under which Respondent would retain 90% of profits from fees billed to Florida clients and the partner would retain 10% of profits from those fees. None of those partnership agreements complied with the dictates of Florida law governing the operation of an interstate law firm...Respondent also hired a suspended Florida attorney to work as a paralegal. Each of these successive partners left the firm in short order after having performed little or no work.

In November 2012, Respondent notified her clients she was closing the Florida office of her firm and that, for the clients who had paid a flat fee, she would pay another attorney to perform the work. However, about two months later, that attorney decided to discontinue work on the cases referred to him by Respondent.

Aggravating factors

We also note several other aggravating factors found by the hearing officer. During her testimony in this matter Respondent was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from his actions despite ample evidence Tope was soliciting and signing up clients for legal representation at her behest. Further, in addition to the flat fees Respondent charged her clients, Respondent’s representation agreements also provided that the client would owe Respondent a 50% contingency fee of any reduction in mortgage principal, to be secured with a lien against the property. Finally, Respondent has not acknowledged any wrongdoing and described these disciplinary proceedings in her testimony as a “witch hunt.”

Justice David dissented and would impose a more severe sanction. (Mike Frisch)

December 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 6, 2016

Permanent Disbarment: Prosecutor Got Signed Saints Hat, Bikes, Clothes And Cash

A former assistant district attorney has been permanently disbarred by the Louisiana Supreme Court for his participation in a scheme to profit from favorable treatment in drunk driving matters

In order to qualify for the “immediate 894 plea,” the district attorney required that the charged individual complete all legal prerequisites prior to entering the plea, including community service, a substance abuse program, and a driver safety program. The individual cases selected for “immediate 894 pleas” were withheld from, or removed from, the normal DWI docket, and special court sessions were held to handle these cases. Respondent served as the prosecuting attorney for all cases disposed of by “immediate 894 plea.” The DWI defendant, at the time of the “immediate 894 plea,” would appear with certifications that he/she had completed the community service requirements, the substance abuse program, and the driver safety program. The documents would be filed into the court record at the time of the guilty plea. Pursuant to La. Code Crim. P. art. 894, the judge would then immediately grant the 894 motion dismissing the conviction, which served as an acquittal, thereby allowing the DWI defendant to have his/her driving privileges immediately reinstated.

The scheme

Beginning in 2010, respondent became aware that personnel in the District Attorney’s Office and a non-lawyer by the name of Robert Williamson were utilizing the “immediate 894 plea” sessions to provide favorable dispositions of DWI cases for defendants willing to pay Mr. Williamson. Respondent was aware that the individuals who were being allowed to plead in the “immediate 894 plea” sessions were paying Mr. Williamson, and he also knew that Mr. Williamson had never been licensed to practice law. In 2010 and 2011, respondent accepted a series of gifts and a cash payment from Mr. Williamson, “intending to be influenced and rewarded in connection with” the DWI scheme. The gifts included an autographed New Orleans Saints hat, bicycles for respondent and his family members, and clothing for respondent, ranging from shoes to business suits. In December 2011, Mr. Williamson gave respondent a cash payment of $500.

He pled guilty to federal charges of conspiracy to commit bribery

It has been established through respondent’s guilty plea, the nature of his charge and various other charges against other individuals involved with the scheme that there were benefits given through the actions of respondent that inured to the benefit of others. It was also established at the hearing that respondent did not have any relationship with Mr. Williamson, the one who provided the gifts and cash payment to respondent, and who ushered clients through the “expedited 894” proceedings in which respondent represented the 15th JDC. There was no evidence of any social or professional relationship with Mr. Williamson in respondent’s private practice.

Despite his assertions that he did not know he was doing or intended to do anything wrong, and was not aware that there was any benefit being given, respondent’s written consent to the charges establishing just the opposite belies his assertions. Respondent presented testimony through one witness that sought to place blame for his actions on District Attorney Michael Harson, who has never been charged with any wrongdoing. Moreover, and as previously discussed, respondent made no attempt whatsoever to bring any of the activity to the attention of Mr. Harson.

The court looked to prior cases in imposing permanent disbarment.

Indreporter's Leslie Turk reported on the criminal case. (Mike Frisch)

December 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A "Special Circumstance" Exception To Privity Requirement In Legal Malpractice Case

The dismissal of portions of a legal malpractice claim has been reversed by the New York Appellate Division for the First Judicial Department

Defendant Pryor Cashman LLP represented nonparty David Lichtenstein in a transaction in which Lichtenstein was to purchase $10 million worth of stock in nonparty Park Avenue Bank. Before the transaction could close, nonparty Savings Deposit Insurance Fund of the Republic of Turkey (SDIF) sued the holder of 99% of the bank's shares and obtained a restraining order preventing any transfer of the shares (Deep Woods Holdings, L.L.C. v Savings Deposit Ins. Fund of the Republic of Turkey, 745 F3d 619, 621 [2d Cir 2014], cert denied __ US __, 135 S Ct 964 [2015]).

On June 22, 2004, Lichtenstein and SDIF entered into a stipulation, pursuant to which Lichtenstein had the right to exercise a call option to buy shares of stock in the bank for a specified sum, provided Lichtenstein exercised his right within 45 days after SDIF was able to deliver the shares. SDIF was able to deliver the shares on July 12, 2005, but Pryor Cashman did not exercise Lichtenstein's call option until November 2, 2005 (Deep Woods, 745 F3d at 623), and SDIF then refused to honor it.

Thereafter, Pryor Cashman recommended to Lichtenstein that he, together with nonparties Donald Glascoff, chairman of the bank, and Charles Antonucci, form plaintiff Deep Woods Holdings LLC, and that Lichtenstein assign the call option to Deep Woods, which would then sue SDIF to exercise the call option. In or about 2007, Pryor Cashman organized Deep Woods, drafted the assignment, and insisted on acting as counsel for Deep Woods in the litigation against SDIF. The assignment read in its entirety: "In consideration of the issuance to David Lichtenstein ("Assignor") of a 75% interest in Deep Woods Holdings LLC, a Delaware limited liability company ("Deep Woods"), as described in the Deep Woods Operating Agreement dated February 6, 2007, the Assignor hereby assigns, transfers and delivers to Deep Woods his entire right, title and interest in and to the option contained in Paragraph 8 of that certain Stipulation dated June 22, 2004 between the Assignor and [SDIF]." Pryor Cashman did [*2]not draft the assignment so as to specifically assign any tort claims Lichtenstein might have in connection with the exercise of the call option to Deep Woods.

According to Mr. Glascoff, when Pryor Cashman formed Deep Woods and prepared the assignment, it acted on behalf of Lichtenstein, the other members of Deep Woods, and Deep Woods itself. Mr. Glascoff further alleges that, during this process, Pryor Cashman was silent on the issue of whether the assignment transferred tort claims, but that it was Mr. Glasscoff's understanding that it did, and, if he had understood that it did not, he would have insisted on adding any necessary language so that it did.

At the trial level, Deep Woods won $25.3 million in damages. However, the Second Circuit reversed, finding that the call option had not been not exercised in a timely manner (Deep Woods, 745 F3d at 620).

After the U.S. Supreme Court denied certiorari, Deep Woods brought the instant action against Pryor Cashman, alleging, inter alia, malpractice based on Pryor Cashman's failure to exercise the call option in a timely manner. On February 11, 2016, the motion court issued the order appealed from, granting Pryor Cashman's motion to dismiss so much of the malpractice claim as was based on the failure to timely exercise the call option. The motion court found that, because the assignment Pryor Cashman had drafted did not specifically assign Lichtenstein's tort claims, and because the malpractice alleged occurred while Lichtenstein owned the call option, Deep Woods did not have standing to sue Pryor Cashman. Deep Woods now appeals.

Holding

 The motion court correctly found that the subject assignment, which merely transferred the assignor's "entire right, title and interest in and to the [call] option contained in Paragraph 8 of" another contract, did not explicitly assign tort claims (see e.g. Commonwealth of Pennsylvania Pub. Sch. Employees' Retirement Sys. v Morgan Stanley & Co., Inc., 25 NY3d 543, 550-551 [2015]; Dexia SA/NV v Morgan Stanley, 135 AD3d 497 [1st Dept 2016]). Unlike the assignment in Banque Arabe et Internationale D'Investissement v Maryland Natl. Bank (57 F3d 146 [2d Cir 1995]), this assignment did not, by its terms, transfer rights to a transaction. The assignment is not ambiguous; even if it were (and if we therefore considered parol evidence), an unexpressed understanding does not suffice (see Commonwealth of Pennsylvania, 25 NY3d at 551).

However, accepting plaintiff's affidavit in opposition to defendants' motion as true, we find that plaintiff sufficiently pleaded that defendants should be equitably estopped from arguing that the assignment did not assign tort claims. Contrary to defendants' contention, estoppel can be based on silence as well as conduct (see e.g. Rothschild v Title Guar. & Trust Co., 204 NY 458, 462 [1912]). Under these circumstances, where defendants drafted the assignment at a time when it represented both Lichtenstein and plaintiff, and that interpreting the assignment to exclude tort claims would mean that neither the assignor nor plaintiff, the assignee, would be able to sue defendants for malpractice for failing to exercise the call option in a timely manner, we find that the "special circumstances" exception to the privity requirement applies (see [*3]generally Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010]; Good Old Days Tavern v Zwirn, 259 AD2d 300 [1st Dept 1999]). To do otherwise might insulate defendants from liability for their alleged wrongdoing.

(Mike Frisch)

December 6, 2016 in Clients | Permalink | Comments (0)

Disbarment Proposed For Attorney Who Claimed Earlier Order Was Invalid

The California State Bar Court Review Department has recommended disbarment of an attorney who failed to comply with an earlier discipline order.

Reiner appeals. He contends that Reiner I is invalid and unlawful, and that, therefore, so is this "derivative" matter. We find no merit to his position, and in any event, disobedience is not the proper mechanism for challenging a final, binding, and enforceable court order...

We reject his attempt to collaterally attack the Supreme Court’s prior imposition of discipline—it is long since final and binding (In re Rose (2000) 22 Cal.4th 430, 441-442), and we are without authority to set aside an order of the Supreme Court. (Cal. Rules of Court, rule 9.10; In re Applicant B (Review Dept. 2004) 4 Cal. State Bar Ct. Rptr. 731, 733.)

Moreover, "[r]egardless of [Reiner’s] belief that the order was issued in error, he was obligated to obey [it] unless he took steps to have it modified or vacated." (In the Matter of Klein (Review Dept. 1994) 3 Cal. State Bar. Ct. Rptr. 1, 9, fn. omitted; see also In the Matter of Boyne (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 389, 403-404].) If Reiner wanted to seek review of Reiner I, the appropriate avenue of relief was with the United States Supreme Court. (McKay v. Nesbett (9th Cir. 1969) 412 F.2d 846, 846 ["orders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court"].) The record does not indicate whether Reiner sought such review, but his time to do so has since expired, and Reiner I is now final and unchallengeable. (Maltaman v. State Bar (1987) 43 Cal.3d 924, 952 ["no plausible belief in the right to ignore final, unchallengeable orders one personally considers invalid"].)

Sanction

Reiner’s misconduct in both Reiner I and Reiner II involves disobedience of court orders. The Supreme Court has harshly criticized attorneys who willfully violate court orders, deeming it difficult to imagine conduct more unbefitting an attorney. (See Barnum v. State Bar (1990) 52 Cal.3d 104, 112.) "Disobedience of a court order, whether as a legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relate to an attorney’s fitness to practice law and serve as an officer of the court." (In re Kelley (1990) 52 Cal.3d 487, 495-496 citing Maltaman v. State Bar, supra, 43 Cal.3d at p. 951.) When an attorney disobeys a court order based on an unreasonable interpretation not made in good faith, public discipline is necessary to send a clear message to the bar, the courts, and the public that serious consequences will ensue.

In assessing the appropriate level of discipline for Reiner’s violation of rule 9.20, the rule itself calls for strong disciplinary measures—disbarment or suspension. (Cal. Rules of Court, rule 9.20(d).)4 Case law also supports significant discipline. Decisions by the Supreme Court reflect the view that disbarment is generally the appropriate sanction for a willful rule 9.20 violation. (Bercovich v. State Bar (1990) 50 Cal.3d 116, 131; Powers v. State Bar (1988) 44 Cal.3d 337, 342; Lydon v. State Bar, supra, 45 Cal.3d at p. 1188.)

 (Mike Frisch)

December 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, December 5, 2016

Interim Suspension Of Attorney Who Stalked Professor

The Louisiana Supreme Court has granted a joint petition for interim suspension of an attorney

While the order does not specify the bar allegations, the New Orleans Advocate (John Simerman) had this story from November 2015

A New Orleans lawyer who was caught inside a married couple’s Uptown home in October 2013 while they were on a trip, prompting a criminal complaint and revelations of a tryst between the two women, pleaded guilty Friday to misdemeanor counts of stalking and violating a protective order.

Trisha Ward, 37, received a six-month suspended sentence and two years of probation. She was ordered to undergo counseling and steer far clear of the couple, ending a two-year legal saga.

Because of her conviction, Ward also could face state sanctions against her law license.

 Ward, who was admitted to the bar in 2008, picked up another charge last month when she was accused of making three purchases through Amazon.com using the female victim’s credit cards more than a year after her arrest. It was allegedly part of a pattern of misbehavior by Ward against the victim, a local university professor, after the initial charges were filed along with a stayaway order.

Ward had once been close to the couple, even baby-sitting for them, and she had a key to the couple’s home.

The New Orleans Advocate is not naming the victim.

She sat Friday in the courtroom with her husband as Ward sought to assure Criminal District Court Judge Tracey Flemings-Davillier she wouldn’t pester them. She told the judge she has left the city to avoid a chance run-in.

“I will stay as far away as possible,” Ward said.

 As part of the deal, Ward will undergo a psychological evaluation and counseling.

In a legal filing last year, Ward claimed she entered the couple’s home clandestinely so she could repay the professor without the husband learning about their fling.

“It was during her effort to return the money that Ward encountered another housekeeper,” Ward’s attorney wrote, claiming the professor chose to press charges rather than admit the tryst to her husband.

District Attorney Leon Cannizzaro’s office agreed to reduce the illegal entry charge, a felony, to stalking, a misdemeanor, while dropping a count related to the online purchases.

(Mike Frisch)

December 5, 2016 in Bar Discipline & Process | Permalink | Comments (1)