Wednesday, September 2, 2015

Voice Mail Racial And Religious Abuse Alleged As Ethics Violations

The Illinois Administrator has charged an attorney with harassing communications to a client and a third party and misconduct in attempting to collect fees over an agreed flat fee

In a criminal defense matter

In or about the summer of 2014, despite the fact that Respondent and Buchanan had previously agreed that Respondent would represent Buchanan’s son, Leon, for a $3,500 flat fee...Respondent began requesting that Buchanan pay him an additional $500 in legal fees to continue representing Leon in case number 12CR0848701. As a result, Buchanan paid Respondent an additional $200 in legal fees. However, Respondent demanded that Buchanan pay him an additional $300. Respondent left Buchanan several voice mail messages, in which he made the following statements:

  1. "You are a piece of garbage. All black people are alike. You’re slovenly, ignorant."

  2. "You better give me my money or your son’s case is going to be delayed."

  3. "I’m sick of you, you piece of shit."

  4. "I don’t know who’s the biggest bitch. You or [family]. I’m going to lock you up."

  5. "Low class n-----s. I’m going to have you all locked up."

  6. "You call me with stupid shit. Wait until next court date."

  7. "You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I’ll withdraw. I already told the State’s Attorney to writ your son over."

  8. "You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer."

  9. "You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your son."

  10. "Help your son. Pay. Stop delaying case."

At no time did Respondent advise Leon and/or Buchanan to consult with independent counsel before Buchanan paid Respondent additional legal fees over the original $3,500 flat fee agreement between Respondent and Buchanan. At no time did Respondent explain to Leon and/or Buchanan that Respondent’s receipt of additional legal fees was contrary to the agreement to pay Respondent a flat legal fee and that they had no obligation to agree to pay Respondent additional legal fees.

At no time did Respondent explain to Leon and/or Buchanan that his interest in obtaining additional legal fees was in conflict with Leon and/or Buchanan’s interest in maintaining the $3,500 flat fee agreement, nor did Respondent obtain Leon and/or Buchanan’s consent after disclosure.

Voicemail  in a power of attorney matter to the administrator of the facility that had housed the client

You know, I tried to be academic, intellectual, and community-minded and everything else with you. What you’re supposed to do as a nursing home, you piece of [shoe or Jew] garbage. You put my girl out in the street and didn’t give a fuck, and didn’t let her come back, and know that she is mentally challenged. Are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don’t know what that is—called violation of fiduciary capacity. And that’s what you’ve done in this, with your stupid Jew ass. Mother-fuck you, how you fucked my girl. Okay, I’m going to sue you, a federal law-- I’ll sue you, sue the fuck out of you. You should’ve knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She’s schizophrenic, hyper-paranoid schizophrenic, you piece of shit.

 He also is charged with neglect of a criminal appeal and failure to cooperate with the disciplinary process. (Mike Frisch)

September 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Violation Of Suspension Order Draws Call For Disbarment

The Illinois Review Board has recommended disbarment of an attorney found to have failed to comply with an order of suspension.

He had continued to practice law in several matters after suspension

Following his suspension, Respondent arranged with his brother-in-law, Robert Rothstein, to work with him during his suspension. Respondent testified that he contemplated that he would act as a "paralegal" for Rothstein and would be paid $100 an hour for his services. This arrangement admittedly violated Supreme Court Rule 764. Despite the arrangement, Respondent acted as an attorney, rather than as a paralegal for Rothstein. The Hearing Board found that Respondent continued to hold himself out as an attorney and practiced law after his suspension...

While Respondent argues that his mental state following the Court's order of suspension prevented him from understanding the import of the Court's order, we note that he was able to render advice to clients and negotiate with counsel during this time period. His conduct was aggravated by his actions in asking his brother in law to assist him in the unauthorized practice of law. The Court has stated that the unauthorized practice of law after a Court order imposing discipline "is a serious offense because it gives the impression that our system of attorney discipline is ineffective and that the public is not being protected from unethical attorneys." See, In re Kuta, 86 Ill.2d 154, 161-62, 427 N.E.2d 136 (1981). We agree with the Hearing Board's assessment of the seriousness of Respondent's misconduct and the recommendation of disbarment.

The original suspension was for six months. (Mike Frisch)

September 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 1, 2015

Trouble With Alcohol

An attorney who had six alcohol-related criminal incidents from 2008 to 2013 has been suspended for two years, according to the California Bar Journal.

From the summary

In one 2012 matter, police were called to a Mexican restaurant in Moss Landing to investigate a reported battery. When they arrived they found Soukup, whom they were told was the perpetrator, sitting in the driver’s seat of her car. When officers opened the door, they smelled alcohol and Soukup’s eyes were bloodshot and glossy. Soukup said she had not consumed alcohol and denied having any identification. After she eventually provided her license, police determined it was suspended.

Upon learning she was going to be arrested, Soukup punched a deputy twice in the chest. After deputies put handcuffs on her, she kicked them, striking one of the deputies in the groin. While en route to jail, she screamed obscenities and yelled and kicked at the metal divider behind the driver’s seat of the patrol car.

In another incident, in July 2012, Soukup was found unconscious in her home after one of her 6-year-old sons called 911. She admitted to being drunk, was believed to have been unconscious for 45 minutes and had left the oven on. After being placed under arrest, she was belligerent, aggressive, attempted to kick out the windows of the patrol car and threatened officers by saying she was a lawyer.

In mitigation, she was misdiagnosed and given medication that triggers manic behavior in persons with bipolar disorder. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Million Dollar Man

The California Bar Journal reports a case that seems eminently disbarment-worthy

SCOTT STONE MEHLER [#190014], 43, of Long Beach, was disbarred March 25, 2015 and ordered to comply with rule 9.20 of the California Rules of Court and pay restitution.

Mehler stipulated that within a five-month period in 2013 he misappropriated $1.4 million of his client’s money, spending it on personal expenses. In April of that year, Mehler had been hired to serve as local counsel for to Amerector Inc., the American holding company of a Canadian company known as Canerector. Amerector was purchasing a California company and wire transferred $1.4 million into Mehler’s trust account for the sale.

Although he was tasked with acting as the escrow agent, Mehler transferred $1,856,223.89, which included the $1.4 million, from his trust account into his firm’s money market account. For several months after the close of escrow, Mehler made repeated excuses and engaged in trickery, including falsifying records, to try to hide from the parties involved that he had spent the money.

Though he ended up wiring some of the money, he told the attorney representing the company that was sold that he could not pay the remaining $916,437.84, saying he lost it on “bad investments.” He then emailed the attorney with a proposed payment plan saying he wanted it kept confidential and asked that no legal action be taken against him. He attempted to issue three checks to cover the loss, which were returned for insufficient funds on Jan. 17, 2014. The sellers and Amerector then sued Mehler, and he made partial restitution of $268,642.47.

(Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Running Late

An attorney was suspended for six months and a day by the North Dakota Supreme Court for misconduct in three matters.

One involved a client in the military

Matson represented a client in a divorce action including parental responsibility. The client was in the military and was stationed in South Korea during the representation. Matson took a substantial amount of time to respond to the client's attempts to contact him. His actions during the case resulted in several delays. He arrived for the trial seconds before it began, and attended a hearing in another matter during a recess. Therefore, the client was uninformed about Matson's thoughts regarding the trial or about the next steps during the trial. Matson failed to understand the military compensation system resulting in an error in child support. Matson falsely assured the client he would get the judgment amended with respect to child support. Matson delayed providing rulings to the client, and after January 2014 ceased communicating with the client.

The other two matters involved fee issues

The fee agreements in 5711-SE-1407 and 5718-SE-1409 stated the retainers were non-refundable and also stated that the retainer would be applied toward earned fees and reimbursement for costs. The agreement does not state that the fee was earned upon receipt, was a minimum fee, or was for the purpose of retaining Matson's time. 

He had previously been reprimanded. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Deeply-Rooted Bias Requires Reversal

The New Jersey Appellate Division reversed a criminal conviction for carjacking and related offenses as a result of concerns about juror racial bias

...on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was "concerned" and "nervous" because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, "[t]hey certainly don't live around there, and they don't hang around there." Juror 5, who works in that area, agreed that this seemed strange because that area "mostly is Italian and White people. There really are no Black people around there." Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.

Jurors 5 and 12 were sympathetic with juror 4's predicament and suggested she should report her concerns to the Sheriff's Officer who was assigned to secure the jury during deliberations. The Sheriff's Officer informed the trial judge, who then questioned each of the three jurors separately. The judge decided to allow all three jurors to remain on the jury and continue deliberating after they assured him this incident did not have an effect on their impartiality, they would follow the court's instructions on the law, and they would base their verdict only on the evidence presented at trial.

The court

 On these facts, we are compelled to reverse. When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality.

(Mike Frisch)

September 1, 2015 in Current Affairs | Permalink | Comments (0)

Former Magistrate Faces Attorney Discipline: Litigant Stabbed And Had Sex With Him

The excellent web page of the Ohio Supreme Court has a summary of a disciplinary matter scheduled tomorrow for oral argument

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused 
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

Video of oral argument also is available in Ohio. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Difficult Client As Mitigating Factor

The Nebraska Supreme Court has imposed a 60-day suspension for an attorney's failure to timely proceed with the drafting of an estate plan for a client.

While the client initially was in no rush for the documents, the situation eventually led to frustration and a bar complaint

The referee noted that the client involved in the events at issue in this case was a “difficult” client who provided confusing direction regarding when work was to be done, but the referee stated “[t]his fact is barely mitigating since the exact same fact provides notice to [respondent] that extra care was needed to ensure adequate communication.”

The court on sanction

The evidence in the present case establishes, among other facts, that respondent agreed to prepare estate planning documents for the client and was paid a retainer to complete such work. However, respondent failed to prepare the documents and failed to effectively communicate with the client regarding the status of the work to be completed. In addition, respondent repeatedly failed to cooperate with relator’s investigation.

As aggravating factors, we note, as did the referee, that two other grievances had been submitted against respondent for similar misconduct and that in those situations, respondent similarly failed to cooperate with relator’s investigation in a timely manner. Further, the record shows that respondent has received a private reprimand.

As mitigating factors, we acknowledge, as did the referee, that the client involved with the events at issue in this case was a “difficult” client. We also recognize that several letters of support were written on respondent’s behalf.

The attorney must complete CLE and be subject to monitoring on reinstatement. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Time Was Of The Essence

A trust document that did not get properly signed prior to the death of the creator has led to a disciplinary complaint by the Illinois Administrator.

Beginning in approximately 2005, and continuing to at least March 2014, Respondent represented Bill and Judy Shutt ("Shutts", as a couple, or "Bill," or "Judy," individually) in various real estate transactions. From 2005 until at least March 28, 2014, Bill farmed land owned by Judy’s parents, Ellen ("Ellen") and William ("William") Theobald. Ellen and William had three daughters: Judy, Joyce Allen ("Joyce"), and Patti Jones ("Patti").

In 2013, Ellen and William resided at The Regency ("Regency"), a retirement center, in Springfield, Illinois. Ellen died on February 10, 2013 at the age of 83.

In December 2013, Respondent met with William, who was 86 years old, and Judy at the Regency to discuss updating William’s estate plan. William’s last will had been written with the assistance of other counsel in 2003, and left successive life estates to his three daughters, then to their children, with the remainder in fee simple to William’s great-grandchildren. William, Judy and Respondent discussed changing the estate plan to remove the successive life estates as written, and instead putting the land in trust with life estates to the daughters that would be managed by the trust. William also agreed that 80 acres of the land would be transferred outright to the three daughters at the time of his death. The remaining land would be put in trust, with Judy and Patti designated as trustees.

Respondent and William agreed that Respondent would represent William in preparation of an estate plan that would include a declaration of trust ("trust"), a new will, and a deed in trust relating to the 80 acres. Respondent and William agreed that Respondent would bill William on an hourly basis. Respondent agreed to prepare the necessary documents and to review those documents with William at the Regency.

By March 2014, Respondent had not returned to meet with William to review the new estate plan, nor had Respondent completed the preparation of the necessary documents prior to March 27, 2014.

On March 21 or 22, 2014, William was taken by ambulance to Memorial Medical Center in Springfield, Illinois.

On Thursday, March 27, 2014, Bill called Respondent’s office and spoke to his secretary Lori Rakes ("Rakes"). Bill told Rakes that William was hospitalized, and they did not know how much time William had left to live, and that they still wanted William to sign the paperwork to change William’s estate plan. Rakes contacted Respondent, who directed Rakes to tell Bill that he could pick up the paperwork on March 28, 2014, but that Respondent would be out of the office that day (March 28, 2014). After speaking with Respondent, Rakes told Bill he could come over and pick up the paperwork on March 28, 2014. Respondent and his wife were traveling out of state on March 28, 2014, to visit their son.

In the late evening of March 27, 2014, William, who had an aortic tear in his heart, was in severe pain. The medical staff administered sedatives to him, and William entered into a state of unconsciousness. He remained unconscious until his death the next day.

The complaint alleged that Bill picked up the documents shortly after William's death and that they were signed and notarized at the attorney's office. The document was dated the day after William's death. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 28, 2015

Actual Innocence And Suing Defense Lawyers

A convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence, according to a decision issued today by the Kansas Supreme Court.

This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27  L. Ed. 2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents' Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.

 We affirm the district court judge's decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.

The court held that the agency could not be sued but that, in these circumstances trial and appellate counsel could be

After careful consideration of the competing authorities from other states, we hold that a Kansas criminal defendant is "exonerated" for purposes of accrual of his or her civil legal malpractice claim against counsel on the date that a court grants relief from the conviction on the basis of ineffective assistance of counsel. That relief may come as the result of a K.S.A. 60-1507 motion or some other procedural mechanism in the district court or in one of the appellate courts.


...actual guilt—which if present in these cases will always have occurred prior in time to the alleged legal malpractice—is akin to other legal doctrines of causation and liability such as comparative fault and assumption of risk. All of these doctrines ask


"how plaintiffs might be responsible for their own injuries. Guilt-in-fact has the same focus. In other words, if plaintiffs actually engaged in criminal conduct, then they are partially responsible (and more culpable) for their own resulting injuries (such as incarceration). Under these circumstances, the plaintiff's own conduct precludes his or her recovery, just as with other conventional defenses." Shaw v. State, Dept. of Admin., 861 P.2d 566, 572 n.9 (Alaska 1993).


 Whether Kansas will permit actual guilt to be pled and proved as a true affirmative defense or will simply require the traditional proximate causation element in the criminal defendant's subsequent malpractice case—thereby permitting a legal malpractice defendant to argue to the jury that the criminal defendant's actual guilt is an intervening and superseding cause of his injury—remains to be seen. See, e.g., Shaw, 861 P.2d at 572 ("Rather than require the plaintiff to prove his actual innocence . . . the defendant may raise the issue of the plaintiff's actual guilt as an affirmative defense. The attorney . . . as the party raising the affirmative defense, will thus have the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff."); Desetti v. Chester, 772 S.E.2d 907, 910 (Va. 2015) ("a legal malpractice plaintiff who alleges that malpractice occurred during the course of a criminal matter must plead facts establishing this element of the cause of action: that the damages to be recovered were proximately caused by the attorney's negligence but were not proximately caused by the legal malpractice plaintiff's own criminal actions").

Resolving these questions must wait for another case on another day.

 (Mike Frisch)

August 28, 2015 | Permalink | Comments (0)

Reprimand For Suit Against Client Who Filed Bar Complaint

An attorney who (through counsel) filed a defamation action against a former client who had complained to disciplinary authorities has been publicly reprimanded for authorizing the filing of a frivolous suit by the Louisiana Attorney Disciplinary Board

The Respondent’s conduct was knowing. Mr. Cashio’s intentional pursuit of this cause of action, which arose in part from the complaint Mr. Searles filed against him with ODC, caused injury to Mr. Searles in that he was forced to defend the action before the court. Moreover, the potential harm of a “chilling effect” could result if respondents, or their attorneys, were allowed to initiate legal action against complainants as a result of their communications with the Board, hearing committees or disciplinary counsel relating to lawyer misconduct. The aggravating factors present include: a refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law. The mitigating factor of no prior disciplinary record is also present...

Like respondents Mr. Raspanti and Mr. Mordock, Mr. Cashio, through his counsel of record, Mr. Hilburn, urged a cause of action strictly prohibited by the Louisiana Supreme Court Rule prohibiting a lawsuit against a complainant predicated on a complaint filed with the Office of Disciplinary Counsel. As such, Mr. Cashio has similarly violated the spirit of Rule XIX, §12(A). Such conduct constitutes a violation of Rules 3.1, 8.4(a) and (d). Like Mr. Raspanti, Mr. Cashio’s conduct was knowing. However, the Court in Raspanti concluded that a public reprimand was appropriate due to the existence of several mitigating factors, several of which apply to Mr. Cashio: both respondents held a strong belief that they were not engaging in inappropriate behavior, and both were experienced attorneys with no disciplinary history. Considering the similar circumstances between the matter at hand and the  Raspanti and Mordock cases, the Board finds that Mr. Cashio should be publically reprimanded, rather than placed on a fully deferred one year suspension, subject to a six month period of unsupervised probation.

The board, over a dissent, also found that the conduct was prejudicial to the administration of justice. (Mike Frisch)


August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Alderman

Summary of an Illinois Hearing Board report and recommendation in a matter involving an attorney named Cahnman

The Respondent was charged in a three-count Complaint with having a conflict of interest and engaging in dishonesty. The charges of conflict of interest were based upon the fact that Respondent, while serving as an alderman for the City of Springfield, represented clients in traffic and criminal cases prosecuted in the circuit court, and Springfield Police were the arresting officers in those cases. (Counts I-III). The dishonesty charged in Counts I and III was based upon Respondent's failure to disclose the foregoing representations to the Springfield City Council. The Hearing Board found that charges of conflict of interest were not proved and, thus, that Respondent's failure to disclose the representations was not dishonest conduct.

In regard to Count II, the Hearing Board found that the charge of dishonesty was proved. While Respondent was representing a client named Christian in a traffic case, Christian, though another attorney, filed a lawsuit under the Illinois Freedom of Information Act (FOIA) against the City of Springfield. Respondent, as alderman and without disclosing his attorney-client relationship with Christian, participated in Springfield City Council sessions, closed to the public, at which attorneys for the City discussed legal strategies, settlement prospects and other issues related to Christian's FOIA lawsuit against the City. The Hearing Board found that Respondent engaged in dishonesty by participating in the foregoing confidential discussions without disclosing his attorney-client relationship with Christian.

The Hearing Board recommended that Respondent be suspended for a period of 90 days.

The hearing board noted that he had previous discipline for dishonesty and

 After considering the nature and seriousness of the Respondent's misconduct, the aggravation and mitigation shown by the evidence, the cases discussed above, and the purpose of the attorney disciplinary system, we conclude that a suspension is appropriate in this matter. We believe a suspension of ninety days is sufficient to preserve public confidence in the courts and the legal profession, impress upon Respondent the need for him to comply with ethical requirements, and sufficiently impress upon others the seriousness of the misconduct in this case.

(Mike Frisch)

August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 27, 2015

Rule 1.18 Applies; No Misconduct Found

An attorney's single meeting with a prospective client did not create a disqualifying conflict to later adverse representation for bar disciplinary purposes, according to an opinion of the North Dakota Supreme Court.

Shaun Bergquist filed a disciplinary complaint against [attorney] Kuntz, alleging she had a conflict of interest when she agreed in July 2012 to represent him in a proceeding to modify his parenting schedule against his child's mother, Sara Wyrick, after Kuntz had consulted with his child's maternal grandfather, Paul Berger, in May 2011 about appealing the initial primary residential responsibility determination and received a $100 retainer to take the appeal.

Kuntz's response to Bergquist's complaint stated she met with him for an initial consultation on June 18, 2012, to review his file for assessment of the merits and the procedure to modify his parenting schedule with Wyrick, also known as Hickey and formerly known as Berger. Kuntz asserted her normal practice for all initial consultations was to run a conflict check and advise the individual that she was meeting in a limited capacity to provide basic information for an informed decision on whether to proceed with retaining a lawyer. According to Kuntz, she clearly advised individuals during initial consultations that she was not their lawyer as a result of the consultation and she did not then agree to be their lawyer. Kuntz stated she was subsequently retained by Bergquist in July 2012 to represent him in his motion to modify his parenting schedule against Wyrick, and she prepared the case for a hearing.

 Shortly before a scheduled April 2013 hearing on Bergquist's motion, the district court, on motion by Wyrick, disqualified Kuntz from representing him in that proceeding because she had met with Berger in May 2011 about representation after the initial primary residential responsibility determination. The court explained: (1) "the purpose of the consultation [with Berger] was to determine whether Ms. Kuntz would represent the Defendant in an effort to change the custodial decision reached in the course of the first trial;" (2) "Berger paid a $100 consultation fee;" (3) "discussions included a retainer fee that Ms. Kuntz would require;" (4) there were no subsequent contacts and "Defendant apparently decided she could not afford the fee or for other reasons did not respond;" and (5) Kuntz did not recall the consultation with Berger, but agreed that she routinely met with potential clients for consultations and charged an initial fee of $100.

The court dismissed the ethics charges against the attorney. The meeting was governed by Rule 1.18 (duties to prospective clients) rather than Rule 1.9 (duties to former clients)

Here, Kuntz explained she advised potential clients during every initial consultation that she was meeting with them in a limited capacity and that she was not their attorney as a result of the consultation. She said she did not agree to become a potential client's attorney until review of the information and deadlines, if any, discussed in an initial consultation, review and signature of a fee contract, and payment of a retainer in an amount determined during the consultation. She stated that during her initial consultation with Berger, she did not obtain or utilize any information that was adverse to the interests of Berger or Wyrick. She asserted she did not form an attorney-client relationship with Berger, and she did not have an express agreement for representation, a reasonable expectation of representation, or representation implied from the circumstances of that consultation. Kuntz's consultation notes and the handwritten notes from a telephone conference leading up to Kuntz's initial consultation with Berger reflect the disclosure of general information about the earlier custody proceeding, but do not disclose the exchange of any legal advice or confidential information. The evidence in this record does not establish Kuntz provided legal advice to Berger during the initial consultation or the full extent of the information that may have been exchanged during that consultation. The evidence in this record does not clearly and convincingly establish that the nature and the circumstances of the information exchanged during Kuntz's initial consultation with Berger created a lawyer-client relationship.

(Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Staff Attorney At Bismarck Firm Engaged In Unauthorized Practice

The North Dakota Supreme Court has admonished an attorney for the unauthorized practice of law.

From about September 2010 until late October or early November 2011, Gerber worked as a "staff attorney" in the Bismarck office of Fredrikson & Byron, P.A., a law firm based in Minneapolis, Minnesota. While in Bismarck, Gerber worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions. Although Gerber was admitted to practice law in Minnesota in October 2010, Gerber has never been licensed to practice law in North Dakota.

The issue came to light when he applied for North Dakota bar admission. He later found a job in Minneapolis and withdrew the application.

The court

Here, we conclude clear and convincing evidence establishes that Gerber and his law firm held him out as someone authorized to practice law in North Dakota. The Fredrikson firm's news release plainly states Gerber was hired as an attorney in the firm's Bismarck office, identifying him as a "government relations specialist" and a "staff attorney." The release also states Gerber's "energy practice focuses on title examination and oil and gas law." The news release contained no disclaimers alerting the public to the fact that Gerber was not admitted to practice in North Dakota... addition to the law firm's news release, evidence establishes that Gerber identified himself as a "staff attorney" while working in Bismarck. Gerber self-identified as a "staff attorney" on his application for admission to the North Dakota Bar. He also identified himself as a "staff attorney" and a "government relations attorney" in an affidavit clarifying his duties to the State Board of Law Examiners. Gerber admittedly worked as a "staff attorney" or "government relations attorney" in Fredrikson's Bismarck office for over a year, logging 2,476.40 billable hours, of which 1,686.34 hours were billed to clients. Based on this record, we conclude clear and convincing evidence establishes that Gerber violated N.D.R. Prof. Conduct 5.5(d).

The court rejected the claim that the attorney's due process rights were violated. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney "Sounded Like An Animal Being Killed"

The Washington State Supreme Court has imposed a suspension of a year and fitness for misconduct that involved disruptive courtroom behavior and a false police report.

The conduct in a highly contentious custody matter

Throughout the trial, [attorney] Abele was repeatedly admonished for interrupting the court and other counsel. She slammed objects on the table and made loud comments when Judge Farris ruled against her. Though Abele's comments and actions were distracting to opposing counsel, she did not stop when the court instructed her to do so. Instead, Abele would falsely respond, "I did not say anything" and continue to engage in disruptive behavior.

In a later proceeding

Abele repeatedly interrupted Judge Farris, even yelling to express her disagreement. When Judge Farris directed staff to summon security, Abele announced, "I'm going to jail. I'm going to jail," placing her hands over her head, crossed at the wrists as if being handcuffed. Abele walked out of the courtroom while court was still in session, causing the proceedings to come to a halt. Abele reentered the courtroom and announced, "I'm leaving. I'm out of here .... I'm abstaining completely .... Good-bye."

...On Abele's return, Judge Farris continued to make a record of Abele's behavior. Judge Farris stated that in the previous hearing Abele had made "loud noises that to me sounded like an animal being killed" and that "I have been in these courts for 30 years, 18 as a judge. I have never heard anything - have never heard any lawyer make any kind of noise or do anything like that before." Abele again yelled at the judge, attributing her previous scream to a hip injury and claiming that her yelling was the result of a hearing disability. Judge Farris held Abele in contempt "based on your screaming, yelling, jumping up and down in my courtroom, stomping and then stomping out and refusing to represent your client .... " Abele responded, "Your Honor, I appreciate your lecture. Could you just tell me how much I have to pay in a fine so I can get rid of it and take care of it and resolve this issue with you?"

She was held in contempt which she promptly purged.

The second matter involved a false report that a deputy marshall had tripped her

The hearing officer properly resolved this issue by making a permissible credibility determination. Abele argues that she did not knowingly file a false report because she believed that she was tripped. The WSBA argues that Abele knew that she wasn't tripped and that she invented the complaint because she wanted to get the marshals in trouble. It was up to the hearing officer to determine which version was more credible, and after considering all the evidence, he found that Abele's version of events was not credible and that the WSBA explanation was the only reasonable explanation.

The court concluded that suspension was required

Abele's briefing also shifted blame for her misconduct to Judge Farris. The hearing officer specifically found that Abele's assertion that her outbursts were caused by a hearing disability was not credible, and he explicitly rejected her assertions that Judge Farris's behavior provoked her outburst. These factual findings are unchallenged. The hearing officer also found, and Abele does not challenge, that Abele's remaining excuses and explanations were not credible. We therefore reject Abele's contention that the aggravating factor "refusal to acknowledge wrongful nature of conduct" does not apply...

The presumptive sanction for a knowing violation of these rules is suspension. We therefore adopt the Board's recommendation in full and order that Abele be suspended from the practice of law for one year, that she complete an evaluation to determine her fitness to practice prior to being reinstated to the practice of law, and that she pay all costs and expenses, including attorney fees awardable under the ELC 13.9.

The court rejected the "stress of litigation" as a mitigating factor. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Bar Alleges Misconduct For Domestic Battery

The Illinois Administrator has filed a complaint alleging the following

On the evening of September 20, 2014, Respondent and his spouse...were at a neighbor's home for a party.

In the early morning hours of September 21, 2014, Respondent and [his spouse] drove home where an argument ensued in the bedroom.

 Respondent kicked [her] in the head and chest repeatedly as Smart lay on the bedroom floor.

Respondent left the room and returned a short time later and again kicked [her] in the head and chest repeatedly while [she] lay on the bedroom floor.

By the actions described...Respondent knowingly, without legal justification caused bodily harm to...a family member.

At all times alleged in this Complaint there was a criminal statute in Illinois, 720 ILCS 5112-3.2(a)(1), which outlawed causing bodily harm to a family member.

At all times alleged in this Complaint there was a criminal statute in Illinois, 720 ILCS 5/12-3.2(a)(2), which outlawed making physical contact of an insulting or provoking nature with a family member.

The complaint states that the attorney was convicted of misdemeanor domestic battery. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Harsher Discipline By New York For New Jersey Reprimand

An attorney who was publicly reprimanded in New Jersey had the reciprocal sanction upped to a 90-day suspension by the New York Appellate Division for the Third Judicial Department.

we note the presence of aggravating circumstances herein, including, among other things, Morin's failure to respond to the subject motion and his failure to file a copy of the order of the Supreme Court of New Jersey with this Court, as required by Rules of the Appellate Division, Third Department (22 NYCRR) § 806.19 (b). Accordingly, under all the facts and circumstances presented, and especially noting Morin's underlying misconduct – depriving his client of legal recourse in certain land use litigation after he misrepresented to his client, for a period of approximately two years, that an appeal in the matter remained pending, despite his knowledge that said appeal had been previously dismissed for lack of prosecution – and his evident disregard for his fate as an attorney in this state, we conclude that he should be suspended from the practice of law for a period of 90 days.

(Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Bono

A fully-stayed suspension of six months has been imposed by the Ohio Supreme Court for an attorney's attempt to initiate a romantic relationship  with a client that he represented on a pro bono basis in a custody matter.

In the consent-to-discipline agreement, Hubbell stipulates to the facts alleged in relator’s complaint and agrees that his conduct violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed between them prior to the initiation of the client-lawyer relationship). The parties agree to the dismissal of the alleged violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).

The allegations in the bar action are linked here. He allegedly sought a relationship over a period of months, plying her with beer on one occasion.

She rebuffed him once by telling him she was sick. Then

After [the client] rebuffed respondent, he sent a highly inappropriate and sexually suggestive email soliciting nude photographs and seeking to initiate a physical relationship with [her]. After receiving the email, [she] brought a family member with her when she met with Respondent.

At the end of April 2013, respondent contacted [her] and informed that he had left his wife and invited her over to his new residence. She declined.

The court's sole condition is that he not engage in further misconduct, which is every lawyer's obligation. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 26, 2015

Sex Without Adverse Impact Draws Public Censure

Sex with a divorce client merits a public reprimand, according to an opinion of the South Carolina Supreme Court.

Respondent admits he engaged in a sexual relationship with Client while representing her in a divorce proceeding. Respondent maintains, however, he gave Client competent and diligent representation and the relationship did not impact the representation. Respondent counseled Client as to her options and the possible consequences and risks associated with the options. Client was adamant in her demands that her husband only have restricted visitation with their child and that she wanted to be divorced from her husband.

The divorce action was filed on Client's behalf alleging husband's habitual drunkenness as grounds for the divorce. The divorce was granted to Client on those grounds. Husband was granted very restricted visitation with the child based on his continued alcohol abuse. Alimony was not sought by Client as she earned considerably more than her husband. Alimony was barred as to the husband as he could not deny his contribution to the breakup of the marriage.

Respondent and Client ended the physical aspects of their relationship not long after the final decree was issued in July 2011. Respondent and Client communicated after the physical relationship ended as respondent answered Client's questions regarding the wording or application of the final divorce decree.

Sometime later, Client, represented by new counsel, brought another action against her now ex-husband to terminate his parental rights based on his continued abuse of alcohol and the threat he posed to the child. Although he did not represent Client, respondent admittedly became involved in the case when Client was presented with a crisis1 and Client's new counsel was out of town and unavailable. Respondent's only involvement in this action consisted of counseling Client during the crisis.

ODC asserts respondent fully cooperated in its investigation of this matter, that he showed genuine remorse and fully admitted responsibility for his actions, and that his representation of Client was not adversely affected by his misconduct.

The attorney admitted that the conduct violated ethics rules. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Proposed Break For Escrow Violations

A relatively lenient sanction for misuse of client funds has been recommended by an Illinois Hearing Board.

Respondent represented eight clients in obtaining  reductions in their property tax assessments and property tax refunds. After  receiving property tax refunds on behalf of these clients and before paying  them, Respondent used all or a portion of the funds received for his own  purposes. In total, he used approximately $125,000 in client funds. While still  serious, we found Respondent's actions to be the result of poor accounting  practices and not dishonest motives. There were numerous facts that mitigated  his conduct. We recommend Respondent be suspended from the practice of law for  one year, with the last seven months stayed by an eighteen-month period of  probation with conditions.

The story

Respondent's clients never complained about him to the ARDC and never contacted him regarding the whereabouts of their money.  Respondent still represents some of clients listed in the Complaint.

The ARDC investigation into these matters first  began in September 2011 when Respondent's client trust account was overdrawn and  the bank notified both Respondent and the ARDC regarding the overdraft. His  client trust account was again overdrawn in October and December 2011 and for  the last time in December 2012, and his bank again notified both him and the ARDC regarding these overdrafts. The ARDC  contacted Respondent directly regarding each bank notification. Despite being  first notified about the ARDC investigation in 2011, Respondent did not perform  an audit of his client trust account in 2011 or 2012.

This was a good if somewhat late-blooming idea

In early 2013, Respondent read the Illinois Rules  of Professional Conduct relating to trust account procedures. In April 2015, he  completed a client trust account webinar. He accepts full responsibility for not  maintaining properly his client trust account and expressed remorse and regret  for his conduct.

The board found considerable compelling mitigation. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)