Saturday, December 20, 2014

Attorney Has Due Process Right To Notice Of Alleged Rule Violations

The Utah Supreme Court has reversed findings of misconduct, concluding that the accused attorney had been denied due process.

A screening panel found that the attorney violated Rules 1.2, 1.4 and 8.4(a).

The attorney had not been placed on notice of the alleged Rule 1.2, which violated his due process rights. 

The court found insufficient evidence of the remaining violations, concluding that the conduct at issue was addressed in Rule 1.1 (competence) rather than Rule 1.4 (communication).

The screening panel declined to find a Rule 1.1 violation.

The court held that conduct covered by one rule cannot be sanctioned by reference to another rule. (Mike Frisch)

December 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Stealing From Elderly Client Draws Appropriate Sanction

An attorney who had obtained power of attorney from an elderly client was disbarred by the Maryland Court of Appeals for misappropriation and deceit.

The attorney was added to a joint bank account that had over $14,000 on balance. Approximately $3,000 was deposited per month. The client had lived on the $3,000 and never made cash withdrawals or used a check card.

The attorney began to make cash withdrawals and used a check card so that in three months the balance of the joint account stood at $2.92.

After the client sold her home for over $245,000, the proceeds were deposited into the joint account. The attorney used the proceeds to pay his bills and to purchase clothes, meals and alcohol.

He also treated himself to Miami, Las Vegas and Hawaii trips on the client's tab.

The client had a stroke in 2011 and required assisted care until her death in 2012. By then, her funds were exhausted.

The attorney wrote checks to cover her funeral expenses and burial. The checks bounced.

He made false representations concerning his services to a lawyer hired to close the client's estate. He also lied to Bar Counsel.

There were no mitigating circumstances.

Indeed, it would be difficult to imagine any mitigation that would make a lesser sanction appropriate.

Nothing degrades the legal profession more than thefts from a vulnerable and trusting client. The Maryland Client Protection Fund will likely come nowhere near making this estate whole. (Mike Frisch)

December 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 19, 2014

Whereabouts Unknown

An attorney who was charged with felony receiving stolen property failed to appear for court proceedings.

His whereabouts are presently unknown.

As a result, the Kentucky Supreme Court has ordered an indefinite suspension.

The attorney is presently suspended for unrelated misconduct.

The court noted that the sanction of an indefinite suspension is generally not available as a final sanction in an original matter. The court did not regard this sanction as a final one.

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

Thursday, December 18, 2014

Attorney Barred From Pro Se Filings In Disciplinary Matter

The Florida Supreme Court has held that an attorney who has filed abusive pleadings is barred from filing pro se motions in his disciplinary matter.

This Court has chosen to sanction pro se respondents who have abused the judicial process and otherwise misused this Court’s limited judicial resources by filing frivolous, nonmeritorious, or otherwise inappropriate filings. Such respondents have been barred from further filings in this Court unless their pleadings, motions, or other requests for relief were filed under the signature of a member of The Florida Bar in good standing other than the respondents. The Court has found that limitations on the abilities of such respondents to submit any further filings in this Court were necessary to protect the constitutional right of access of other litigants, in that it permitted this Court to devote its finite resources to the consideration of legitimate claims filed by others...

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by David Frank Petrano unless such filings are signed solely by a member in good standing of The Florida Bar other than Petrano. R. Regulating Fla. Bar 3-7.17(d). Counsel may file on Petrano’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

The disciplinary matter involves the Bar's motion for interim probation. (Mike Frisch)

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

Use Of Trust Account To Aid Son's Business Gets Lawyer Reprimanded

An attorney who allowed his escrow account to be used by his son, who was experiencing financial difficulty in operating a construction business, was publicly reprimanded by the Wisconsin Supreme Court.

The court declined to order restitution to the son's aggrieved customer

There is no question that Attorney Steffes violated the trust account rules by allowing his son to use his trust account as a clearing house for his construction business.  However, we are not convinced that this ethical failure per se obligates Attorney Steffes to reimburse his son's business client, R.W., for the loss R.W. incurred in his business dealings with G.S. and Steffes Construction.  R.W. had a remedy for that loss and indeed availed himself of that remedy:  R.W. sought and obtained a civil monetary judgment for $9,500 directly from Steffes Construction. 

We reiterate that Attorney Steffes should not have permitted his son to deposit funds into Attorney Steffes's trust account.  This conduct violated the ethics rules and warrants discipline.  However, we are not persuaded under the facts of this case that the rules go so far as to require Attorney Steffes to essentially serve as guarantor for funds of his son's business client, R.W.  While the court can appreciate that R.W. is aggrieved because he lost over $10,000 due to G.S.'s failure to complete a construction project, it remains true that R.W. obtained a judgment against G.S. in civil court.

The attorney's trust account will be monitored for six mobnths. (Mike Frisch)

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

Wednesday, December 17, 2014

Drag Race Death Leads To Suspension And, Now, Reinstatement

The Oklahoma Supreme Court has reinstated an attorney convicted of felony manslaughter and misdemeanor DUI

On December 22, 2007, Morgan and his best friend and law partner, Andre Carolina, were having a few drinks after work. At one point in the evening the two decided to go to a different location. Morgan drove. The record indicates Morgan engaged in drag racing with another vehicle. It is alleged the other vehicle swerved into Morgan's lane causing him to swerve into oncoming traffic. A wreck ensued, injuring Morgan, some occupants of the oncoming vehicle and fatally wounding Mr. Carolina. The record reflects Morgan's blood alcohol level was right at the threshold of .08.

The court relied on trial panel findings

The Trial Panel unanimously found Morgan should be reinstated. Specifically, it found Morgan established by clear and convincing evidence he possessed good moral character sufficient to entitle him to be admitted to the OBA. This decision having come after its consideration of the severity and circumstances surrounding the offense shows the impact the evidence and testimony made on the Trial Panel. Testimony presented showed how remorseful Morgan was for the death of his friend and partner, Andre Carolina. After release from the hospital Morgan immediately went to Andre's widow who forgave him for the incident. The testimony shows Morgan has tried to look after and help the Carolina family and continues to financially help Andre's young daughter. He has kept in contact with the family members who also look after him when he frequently becomes depressed about the loss of Andre. Morgan and others testified he has refused to drink since the accident. After the accident, Morgan has many times voluntarily participated in speaking for the Victims Impact Panel. Testimony reflects he has done this since September 2008 and will whole heartedly continue to do so. Also, since September 2008, he has spoken on behalf of the Tulsa County Crash Court Program which holds sessions at high schools. Additionally, he has attended counseling sessions through Lawyers Helping Lawyers.

And from his partner's widow and the prosecutor

Ms. Carolina testified she believed Morgan was one of the most loyal and trustworthy people she knew and it was her desire for him to be reinstated to practice law. She testified Morgan was always there for her family and she did not foresee that this would change. Steve Kunzweiler, the prosecutor on Morgan's criminal case, also testified that Morgan demonstrated the requisite moral fitness to be an attorney. Since his resignation Morgan has repeatedly volunteered with the Victims Impact Panel and other organizations to help prevent others from drinking and driving. He has completely refrained from drinking and has sought counseling. In his testimony Morgan expressed his understanding of the seriousness of his crime and the disrepute it has brought upon the legal profession. He has also continued to keep abreast of current legal matters through his work, reading the bar journal and continuing legal education courses. Morgan further exhibited maturity in not only how he handled his case load after his suspension but how he took care of Andre's case load to ensure Andre's clients would have representation.

In sum, the court found clear and convincing evidence supported reinstatement.

NewsOK has this story on the incident that led to the suspension. (Mike Frisch)

 

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

A Partner You Wouldn't Want To Have

An attorney who defaulted on allegations that he had misappropriated over $100,000 due to his law firm was disbarred by the New York Appellate Division for the First Judicial Department.

The Departmental Disciplinary Committee seeks an order disbarring respondent, pursuant to the Rules of the Appellate Division, First Department (22 NYCRR) § 603.4(g), because he has been suspended under 22 NYCRR 603.4(e)(1)(iii) and has not appeared or applied to the Committee or this Court for a hearing or reinstatement within six months from the date of the order of suspension, which was October 11, 2012. We suspended respondent from the practice of law for misappropriating over $100,000 belonging to his former law firm for his own personal benefit without permission or authority to do so.

The Committee served respondent with the instant motion by first-class and certified mail, return receipt requested, to his counsel, yet he have not submitted a response. Because more than six months has elapsed since this Court's October 11, 2012 order of suspension, and respondent has not sought a hearing or reinstatement, disbarment is warranted...

It seems entirely appropriate to me to act promptly to impose discipline when an attorney defaults on charges.

In the District of Columbia --where default in disciplinary matters is treated as if it were the Ebola virus -- a case like this would take years to bring to conclusion and eat up limited bar resources better devoted to matters where the attorney cares enough about the license to participate in the proceedings. (Mike Frisch)

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

The Same Brief Times 31

The Ohio Supreme Court has imposed a stayed two-year suspension of an attorney who had filed the identical brief in 31 of 35 criminal appeals:

Since being admitted to the bar in 2001, respondent has been a solo practitioner. In recent years, his practice has consisted of court-appointed work, primarily in juvenile court. But from 2006 to 2010, the Ashland County Court of Common Pleas appointed Milhoan to handle 35 criminal appeals. Of those 35 cases, 31 involved appeals from guilty pleas. In each of those cases, Milhoan filed appellate briefs that were identical except for certain “case-specific modifications such as names, dates, crimes, sentences, and potential mitigation,” according to the stipulations.

The parties stipulated and the board found that each brief (1) was ten pages long, (2) repeated the same grammatical errors, (3) raised the same assignment of error—“The imposition of a prison sentence in this case imposes an unnecessary burden on state’s resources”—(4) failed to cite any case law in support of the assigned error, and (5) failed to include any information regarding the cost of incarceration or why the appellant’s sentence would burden the state’s resources. The briefs cited only one case (for the definition of clear and convincing evidence) and four sections of the Revised Code—three related to sentencing and one regarding appeal as a matter of right. And although these 31 briefs were virtually identical, in 29 of these cases, Milhoan requested at least three extensions of time to file his appellate briefs.

The court considered evidence of alcohol abuse and required the attorney to comply with the bar's assistance program. (Mike Frisch)

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

Tuesday, December 16, 2014

Court Asserts Disciplinary Authority Over Clinical Faculty

Somehow I missed an order of the District of Columbia Court of Appeals amending to Rule XI, section I to extend disciplinary jurisdiction over

all new and visiting clinical professors providing services pursuant to Rule 48(e) (4).

The change is effective as of October 2.

Here's hoping there are no cases involving alleged ethics violations by this class of lawyers. (Mike Frisch)

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

With Malice Toward No Bar Admission Candidate

The Oklahoma Supreme Court has adopted a new rule governing immunity in bar admissions matters

(a) The Board of Bar Examiners and its members, employees and agents are immune from all civil liability for damages for conduct and communications occurring in the performance of and within the scope of their official duties relating to the examination, character and fitness qualification, and licensing of persons seeking to be admitted to the practice of law or seeking to be registered as a law student.

(b) Records, statements of opinion and other information regarding an applicant for admission to the bar or for registration as a law student communicated by any entity, including any person, firm or institution, without malice, to the Board of Bar Examiners, or its members, employees or agents, are privileged and civil suits for damages predicated thereon may not be instituted.

The court also adopted a rule to permit practice by military spouses. (Mike Frisch)

December 16, 2014 | Permalink | Comments (0) | TrackBack (0)

AUSA Admonished For False Statement To Judge's Secretary

The District of Columbia Office of Bar Counsel has informally admonished an Assistant United States Attorney in the Southern District of Florida for conduct described in the letter of informal admonition

We find that you violated Florida Rule 4-8.4( c) which prohibits engaging in conduct involving "dishonesty, fraud, deceit, or misrepresentation." This violation occurred when you falsely told a U.S. Magistrate Judge's secretary that you had obtained prior supervisory review and approval of a tracker warrant application that you were filing with the court, when you had not obtained such review or approval.

In deciding to issue this letter of Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you took this matter seriously, that you cooperated with our investigation, that you admitted the misconduct soon after it occurred, that you have no prior discipline, and that you have accepted responsibility for your misconduct including by accepting this Informal Admonition.

The full letter may be found at this link by inserting the name of the attorney, Brent S. Tantillo. (Mike Frisch)

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

Monday, December 15, 2014

Disbarment Proposed For Multiple Ethics Violations

Disbarment should be imposed on an attorney who violated several ethics rules, according to a recent report and recommendation of the Illinois Review Board

The [disciplinary] cases were consolidated for purposes of  oral argument. In 2010PR00153, the Hearing Board found that Respondent engaged  in misconduct involving several clients, including 1) improperly taking money  from a charitable fund set up to benefit his clients and lying about his use of  the money, 2) engaging in a conflict of interest by representing multiple  clients in a criminal case, 3) failing to refund an unearned fee and creating  false billing records and lying about his services in an effort to justify the  fee, 4) engaging in a conflict of interest by representing a wife in a divorce  case while representing the husband in criminal charges and civil litigation, 5)  misappropriating funds belonging to a client. The Hearing Board recommended  disbarment.

In 2012PR00123, the Hearing Board found that  Respondent in a foreclosure matter, rented the property of his clients without  their knowledge, improperly kept the rental income, and lied to his clients and  others. The Hearing Board also found that Respondent failed to return an  unearned retainer in a second matter and in a third matter, failed to deposit a  retainer into his client fund account and then used the retainer for his  personal purposes and failed to return the unearned portion of the fee. The  Hearing Board recommended that Respondent be suspended for three years and until  further order of the Court.

The attorney filed exceptions to the hearing board reports but failed to appear for oral argument. (Mike Frisch)

December 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Don't Fence Me In

The Alaska Supreme Court has disbarred an attorney who misappropriated the funds of a deceased client's estate and concealed the thefts through lies over a three-year period.

The court

 An attorney misappropriated a deceased client’s funds — rightfully belonging to the decedent’s estate — and hid this misappropriation through deception while providing legal services to the estate’s personal representative. Throughout more than three years of disciplinary proceedings, the attorney maintained that the funds had been gifted to her and that she was following the decedent’s wishes in deceiving the estate. The Alaska Bar Association’s Disciplinary Board found that no gift had been intended or accomplished and that, among other violations, the attorney committed the criminal act of theft, misappropriation, or wrongful conversion. The Board recommends that we disbar the attorney. After independently reviewing the record, we agree with the Board and impose the recommended sanction.

The attorney, who was admitted in 1989, had claimed that the funds at issue had been gifted to her by the now-deceased client.

The client and attorney met when he built her a fence as a handyman.

The client had died unexpectedly without a will and with his mother as his sole heir.

 The attorney claimed that the client had given her a business account with approximately $20.000 on deposit.

The court affirmed findings below that there was no gift. (Mike Frisch)

December 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Louisiana Supreme Court: Sex with Former Clients Not Unethical

The Louisiana Supreme Court has found that an attorney violated ethics rules by engaging in a sexual relationship with a current client.

The court ordered a six-month suspension with three months stayed.

The Office of Disciplinary Counsel had charged the attorney with misconduct by having consensual sex with five other women who at one time or another had either retained his services or consulted with him.

The attorney's practice was almost exclusively devoted to family law matters.

The court rejected the ODC's contention that the "no sex" rule applies to relations with former clients and prospective clients who choose not to retain an attorney:

We find no support for this position in the Rules of Professional Conduct.

Justice Knoll concurred but "strongly disagreed"  with the holding that the attorney did not violate ethics rules in having sex with former clients while their domestic matter remains pending.

She concludes that the attorney's

sexual involvement with numerous female clients evidences a pattern of conduct by means of his practice which degrades his obligations to the clients and demeans a time-honored profession.

Justice Weimer agreed with Justice Knoll and would find the conduct prejudicial to the administration of justice. (Mike Frisch)

December 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Reason For Public Confidence In Bar Regulation

The Nebraska Supreme Court has suspended an attorney for 30 days followed by a year of supervised probation for an attorney's mishandling of a guardianship and probate matter.

There were record-keeping violations as well.

The attorney contended that the referee erred in declining to consider post traumatic stress disorder resulting from his status as a combat-wounded Vietnam veteran in mitigation.

The court agreed that the misconduct was not caused by PTSD, citing a letter from the attorney's own psychiatrist that declined to find a causal link between the condition and the ethical violations.

The court did consider his long years of unblemished practice in rejecting the referee's proposed 90 day suspension.

One thing that the casual reader might overlook stood out to me.

The charges were filed in November 2013. The referee heard the case in February and March of this year. The court has now decided it by the end of the year.

That promptness reflects well on the Nebraska bar discipline system.

There are plenty of jurisdictions (hello, D.C.) where the idea of moving a bar discipline matter from initial report to final resolution in a single calendar year is unfathomable.

Believe it or not, in the District of Columbia, it takes about a year for charges filed by Bar Counsel to be reviewed and approved for a formal hearing. It can then take as long as six months to  schedule a hearing.

What's worse, no one in a position of authority seems to care. (Mike Frisch)

December 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Poor Investment Fails To Draw A Sentimental Response

A three-year suspension has been imposed by the Wisconsin Supreme Court for an attorney 's misconduct in converting entrusted funds and falsely telling the client that the funds were invested.

In fact, a generous share had used by himself and on behalf of a third party.

There are many aggravating factors.  Attorney Carter's conduct involved much more than simple negligence.  His conduct was reckless and highly unprofessional.  In answer to N.N.'s repeated requests for her funds——over $70,000 of which he had converted——Attorney Carter wove elaborate stories of investment instruments in which he had supposedly placed her money.  These supposed investments were pure fiction.  Not long after N.N. objected to Attorney Carter's supposed investment scheme, Attorney Carter took action to create leverage over N.N.:  he sent her a $43,400 legal bill.  He refused to release the remainder of N.N's funds in trust until they reached an agreement on his fees.  He accused N.N. of trying to take advantage of him by not insisting that he prepare a written fee agreement listing his hourly rate.  These forms of deception and subterfuge are highly damaging to the public's confidence in the integrity and trustworthiness of the bar.

The mitigation

There are mitigating factors as well.  Attorney Carter has had no previous disciplinary troubles over the course of his long legal career.  He has earned a solid reputation among his peers and in the community.  It appears he repaid most, and perhaps all, of the money he misappropriated from N.N. (The record is unclear as to whether he ever accounted for the $5,000 fee payment he withdrew from his trust account without N.N.'s knowledge.)  He has admitted his wrongdoing, pled no contest to all 11 counts of misconduct, and expressed shame and remorse. 

The mitigating factors were deemed sufficient to avoid license revocation.

Nor did the court accept this contention

We pause to remark briefly on Attorney Carter's claim that at his age (he was born in 1943), a three-year suspension——which will require him to petition this court for reinstatement under SCR 22.28(3)——might effectively end his career.  Attorney Carter generally maintains that it is sad for an otherwise untarnished career to potentially end this way.  We agree with this sentiment:  this is an unfortunate case involving anomalous behavior from an otherwise ethical lawyer, and we do not relish deciding it.  But we decline to transform this sentiment into anything more than what it is——a sentiment, not a principle of law.  This court cannot countenance a rule that would soft-pedal the discipline owed to attorneys who lie to and misappropriate funds from their clients so long as they do so in the twilight of their careers.

(Mike Frisch)

December 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Lawyer Suspended For Gas Station Robbery

We posted a report the other day about an attorney who was convicted of robbing three banks.

The Pennsylvania Supreme Court has suspended a member of its bar as a result of a conviction for robbing a gas station.

Steve Marroni reports

An attorney who pleaded guilty to robbing a Lebanon County gas station will be temporarily suspended from practicing law in Pennsylvania.

The temporary suspension from the Disciplinary Board of the Supreme Court of Pennsylvania for Kathy L. Yeatter, 51, whose office is located in Rexmont, was issued Wednesday, several months after she was convicted in Lebanon County Court of one count of robbery.

Yeatter was charged in the Nov. 12, 2013 robbery of the Sunoco A-Plus Market on Route 72 in West Cornwall Township. Police said Yeatter stole an undetermined amount of cash from the gas station.

An officer responding to the Sunoco passed Yeatter's Volvo on Route 419 and arrested her without incident, police said.

Court records indicate Yeatter pleaded guilty to one third-degree felony count of robbery on March 27. She was sentenced May 21 to 23 months in the Lebanon County Intermediate Punishment Program, which includes 26 days of credit for time served and credit for inpatient treatment. The rest of her sentence will be served on probation with continued treatment and random drug and alcohol testing, according to court records.

Yeatter's suspension is effective Jan. 9. According to the disciplinary board, a petition for discipline will likely be filed against her, as well, which could result in further suspension or disbarment.

(Mike Frisch)

December 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mourning Dusty

The New Jersey Supreme Court has agreed with its Disciplinary Review Board that a six-month suspension is appropriate for conduct that amounted to witness tampering.

The attorney had been previously reprimanded. The misconduct here involved a failed attempt to induce a witness to give false evidence to undo the reprimand.

The DEC found that respondent’s conduct in this matter "was borne out of a self-serving interest, because Respondent rejected the prior finding that misconduct." Specifically, instead of filing a petition for review of our decision, as provided in R~ 1:20--16(b), respondent sought to have Hartzell, his former client and friend, sign the April 2011 letter and affidavit that respondent prepared and that contradicted Hartzell’s testimony and documentary evidence that we and the Court found reliable, in reprimanding respondent.

 The DRB considered this submission

Exhibit R-30 is a veterinary bill for the 2012 euthanization of "Dusty," respondent’s cat, a few days before the DEC hearing below. Although its evidentiary value is limited, we saw no harm in permitting its inclusion in the record to demonstrate that respondent was mourning the loss of his cat, at the time of the DEC hearing.

The District Ethics Committee had proposed a censure. (Mike Frisch)

December 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Goosed Plaintiff May Sue

A decision issued today by the Mississippi Supreme Court

Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in the County Court of Jackson County under a theory of premises liability and, alternatively, under the dangerous propensity rule. The trial court granted summary judgment because it found that Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier. It also denied relief under the dangerous-propensity rule because there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident. Olier appealed to the Jackson County Circuit Court, which affirmed. Olier then filed the instant appeal. We hold that, while Olier cannot, as a matter of law, pursue her claim under her theory of general premises liability as a matter of law, she can proceed under the dangerous-propensity theory. Accordingly, we affirm the trial court judgment in part, reverse it in part, and remand for further proceedings.

Plaintiff and Defendant met through a gardening website. Defendant had a "Beware- Attack Geese" sign in the yard.

Plaintiff visited defendant at her home to view a blooming banana plant and "ventured beyond the buckets" that contained drinking water for the yard geese.

Although armed with a bamboo pole to fight off geese attacks, plaintiff became frightened by one squawking and hissing goose. She threw the pole to the ground but the goose was able to nip her in the crotch area. She turned to flee, tripped over a bucket and broke her arm.

Damage claim: $200,000.  (Mike Frisch)

December 11, 2014 | Permalink | Comments (1) | TrackBack (0)

No Communication With 2,200 Clients Draws Proposed Suspension

A two-year suspension has been recommended by an Illinois Hearing Board for two attorneys based on misconduct found in connection with a debt relief business.

The summary

The Administrator alleged Respondents formed a debt  settlement law firm, Legal Helpers Debt Resolution, LLC (LHDR) and contracted  with nonattorney debt settlement companies to enroll LHDR clients and perform  much of the work on client matters. The Administrator charged Respondents with  failing to consult with clients about the means by which the objectives of the  representation are to be pursued, failing to explain matters to the extent  reasonably necessary to allow clients to make informed decisions about the  representation, collecting unreasonable fees, failing to supervise the  nonattorney employees of the debt settlement companies and assisting  nonattorneys in the unauthorized practice of law.

The Hearing Board found Respondents engaged in most  of the charged misconduct and recommended that both Respondents be suspended for  two years. The recommendation took into consideration the scope of the  misconduct, the substantial harm to vulnerable and unsophisticated clients,  Respondents' significant financial gain and their failure to appreciate the  actual harm they caused.

The attorneys let the non-lawyers do the work

Respondents do not dispute that very little or no  direct communication between an LHDR attorney and LHDR clients occurred, either  about the means by which the objectives of the representation were to be pursued  or to explain the scope of the representation to the extent necessary for  clients to make informed decisions. Instead, Respondents rely on the scripted  presentations nonattorneys made to LHDR clients, the written materials provided  to clients and the advice Respondents received from ethics experts to refute the  charges they violated Rules 1.2(a) and 1.4(a)(2) and (b).

We find the Administrator proved by clear and  convincing evidence Respondents failed to consult with clients about the means  by which the objectives of the representation were to be accomplished. The  language of Rules 1.2(a) and 1.4(a)(2) pertaining to consultation is  specifically directed to "a lawyer." We interpret "consult" to require two-way  communication between lawyer and client and find no support in the language of  the Rules or the case law that allows a lawyer to delegate all or virtually all  client communications to a nonattorney. There are times when a nonattorney may  relay information from a lawyer to a client or vice versa but we cannot envision  a scenario in which it would be acceptable for a nonattorney to take over the lawyer's duties of communication with a client.  This is especially true in this case, when the nonattorneys responsible for  communicating with clients were not Respondents' employees and were not under  Respondents' direct control.

And

We...find clear and convincing evidence  that Respondents violated Rule 5.3(a). As equity partners of LHDR, Respondents  had managerial authority that required them to make reasonable efforts to ensure  LHDR had measures in place giving reasonable assurance that the conduct of the  nonattorneys associated with LHDR was compatible with Respondents' professional  obligations. For the following reasons, LHDR's measures for monitoring the  nonattorneys did not provide the necessary reasonable assurance that they were  acting consistently with Respondents' professional obligations. Nor were  Respondents' efforts in this regard reasonable.

Respondents delegated the task of supervising the  strategic alliance partners to Jason Searns. Searns did not directly supervise  the nonattorney case managers and negotiators who handled LHDR client files.  Rather, they reported to nonattorney supervisors within the strategic alliance  partners. Searns' supervisory efforts consisted of providing the nonattorneys  with scripts, policies, and procedures and conducting quarterly compliance  reviews.

The nonattorneys were responsible for virtually all  communications with clients, yet neither Searns nor any LHDR attorney had direct  knowledge of the nonattorneys' communications or other important aspects of the  nonattorneys' daily activities. Scripts and lists of policies and procedures  provide some helpful information to nonattorneys but they are not a substitution  for an attorney's actual observation and communication. LHDR attorneys had very  minimal if not zero knowledge whether the nonattorneys adhered to LHDR's scripts  and procedures. Nor did they have the ability to enforce adherence given the  vast numbers of clients.

As to sanction

Having found misconduct, we must determine the  appropriate sanction to recommend. There are significant aggravating factors  that impact our recommendation. Respondents' misconduct affected 2,200 clients  in Illinois and thousands more in other states. Respondents exposed clients to  unreasonable risks of harm and caused actual harm to many clients. See In re Lewis, 118 Ill. 2d 357, 515 N.E.2d 96 (1987). Clients came to LHDR  because they were under financial pressures. In many instances, their  involvement with LHDR caused them to experience even greater financial problems  as well as emotional distress. After ending their relationships with LHDR, many  clients had to file for bankruptcy and incur additional attorney fees.  Respondents' misconduct is further aggravated by the fact it was focused on  clients who were vulnerable and, in many instances, unsophisticated. See  Lewis, 118 Ill. 2d 357.

Respondents placed more importance on their own  success and financial gain than they did on their clients' interests. The Panel  heard no expressions of remorse for the harm their clients suffered.  Additionally, in the opinion of this Panel, Respondents did not sufficiently  contemplate the ethical problems that LHDR's model and operations caused and  ultimately did not acknowledge the gravity of these problems.

In mitigation, we consider Respondents' cooperation  in these proceedings and lack of prior discipline. We also consider the evidence  of Respondents' good character, including good reputations for truth and  veracity and involvement in charitable activities. However, the mitigating  evidence pales in comparison to the scope of the misconduct. LHDR made  restitution to Illinois clients, but that occurred primarily as  a result of the Attorney General's action against LHDR. Moreover, some clients,  such as Jennifer Green and Charles E. Powell, did not receive restitution of the  full amount they paid to LHDR.

(Mike Frisch)

December 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)