Monday, September 22, 2014

Malpractice Dismissal Affirmed

The dismissal of a legal malpractice claim was affirmed by the New York Appellate Division for the First Judicial Department

Plaintiff David Lichtenstein owns and manages real estate through his entities, plaintiffs The Lightstone Group, LLC and Lightstone Holdings, LLC. In 2007, Lichtenstein and a consortium of investors purchased Extended Stay, Inc. (ESI), which owns and manages hotels. Most of the purchase price was financed through a combination of $4.1 billion in mortgage loans to ESI and $3.3 billion in 10 mezzanine loan tranches to its subsidiaries. As part of the loan transaction, Lichtenstein and Lightstone Holdings executed 11 guarantees that subjected them to $100 million in personal liability in the event of particular "bad boy" acts which included the voluntary filing of a bankruptcy petition by ESI. Lichtenstein managed ESI and became its president, CEO and chairperson. The majority of ESI's board of directors was comprised of Lichtenstein and representatives of entities he controlled.

The following year, ESI was faced with a liquidity crisis as its financial situation declined. ESI retained nonparty Weil, Gotshal & Manges as its restructuring counsel. As stated in the complaint, Weil Gotshal could not represent both ESI and Lichtenstein. As further alleged in the complaint, Lichtenstein retained Wilkie Farr in December 2008, "to advise and represent [him] in his role as an officer and director of ESI, particularly as to the liability of him and his entities in any restructuring, as well as to advise and represent affiliates of the Lightstone Group regarding their interests in ESI." Acting as ESI's counsel, Weil Gotshal recommended that ESI file for bankruptcy and advised that its board members, including Lichtenstein, were obligated as fiduciaries to achieve that result. Plaintiffs allege that their counsel, Willkie Farr, embraced Weil Gotshal's position although it was allegedly erroneous and would have exposed plaintiffs to $100 million in liability on the guarantees.

According to the complaint, ESI's financial condition continued to deteriorate, leaving Lichtenstein with a choice to either a) have the company file for bankruptcy, exposing Lichtenstein to liability on the guarantees or, "b) seek an alternative, including to refuse, or at least delay, and force the Lenders' hand to file a petition for involuntary bankruptcy or foreclose on the collateral (in which case Lichtenstein would risk a lawsuit under a breach of fiduciary claim [sic])." The complaint further alleges that Willkie Farr insisted that Lichtenstein had a fiduciary obligation to put ESI into bankruptcy for the benefit of the lenders. Willkie Farr warned that Lichtenstein otherwise faced the prospect of unequivocal and uncapped personal liability in any subsequent action by the lenders absent a bankruptcy filing by ESI. Before having ESI file for bankruptcy, Lichtenstein offered to surrender the collateral to the lenders as a group. Some of the lenders, however, balked and went to court to block any such surrender in what plaintiffs describe as a likely effort to force ESI into voluntary bankruptcy and trigger the "bad boy" guarantee. On Willkie Farr's advice, Lichtenstein caused ESI to file its bankruptcy petition on June 15, 2009. The lenders brought actions on the guarantees and a judgment was subsequently entered against Lichtenstein and Lightstone Holdings in the sum of $100 million.

This action was filed in June 2012. In making the instant motion to dismiss, Willkie Farr argued that its advice was reasonable and consistent with controlling Delaware law which imposed upon Lichtenstein, a director of an insolvent corporation, a fiduciary duty to maximize the company's long-term value for the benefit of its creditors and other constituencies such as equity holders and employees. Willkie Farr further asserted that the complaint is deficient because it does not allege that absent ESI's bankruptcy filing, Lichtenstein's liability would not have been triggered. The motion court granted Willkie Farr's motion, finding that the complaint contains no allegation of a failure "to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to []plaintiff" (see Ambase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). We affirm.

Reasoning

There is no merit to plaintiffs' argument that Willkie Farr overlooked the availability of an equitable defense under the doctrine of in pari delicto. By operation of the doctrine, the position of a party defending against a claim is better than that of the party asserting the claim in a case of equal or mutual fault (see In re Oakwood Homes Corp., 389 BR 357, 365 [D Del 2008], affd 356 F Appx 622 [3rd Cir 2009]). Here, plaintiffs argue that the lenders could have been faulted for structuring the loan transactions in a way that prevented ESI from declaring bankruptcy. Plaintiffs' argument is flawed because they allege no wrongdoing that the lenders...

(Mike Frisch)

September 22, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Northern Expansion Draws Southern Reprimand

The Georgia Supreme Court has accepted a petition for voluntary discipline and reprimanded an attorney who had improperly solicited legal business from Rhode Island clients.

The court

The petition discloses that [the attorney] allowed a non-lawyer office manager to manage the expansion of the firm to Rhode Island, that he did not monitor this employee’s activities, and that in responding to Bar authorities, he relied upon information provided by the employee. He did not obtain any clients from the solicitation letters.

Further, the court cited the attorney's remorse, lack of prior discipline, serious health problems at the time and full cooperation with the Rhode Island investigation. (Mike Frisch)

 

September 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Permanently Disbarred For Vote Buying

A former judge who pleaded guilty to a RICO count after the Sixth Cicuit had reversed his jury trial conviction of five felony counts of vote buying conspiracy accepted permanent disbarment by the Kentucky Supreme Court.

The court

Ultimately, on November 6, 2013, Maricle entered a negotiated guilty plea to the RICO charge. He admitted that he and his associates accessed the Clay County Board of Elections in order to corruptly influence the outcome of elections. Furthermore, he confessed to providing cash to bribe voters with the understanding that his associates would ensure that the bribed voters cast their ballots as directed. Additionally, Maricle acknowledged that several of his associates received public works contracts (some of which were funded by federal grant money) by virtue of their participation in the election-fraud enterprise. Pursuant to his negotiated guilty plea, he was sentenced to time served, plus supervised release for two years (to include six months of home incarceration), 200 hours of community service, and no participation in the political process.

The history is told by Kentucky.com

The five remaining defendants in a case alleging widespread vote fraud in Clay County pleaded guilty Wednesday, capping a long-running investigation in which some of the most prominent officials in the county went to prison.

Those who pleaded guilty were longtime Circuit Judge R. Cletus Maricle, 70; two-term county Clerk Freddy W. Thompson, 50; Douglas C. Adams, 62, who was county school superintendent from 1999 to 2009; Charles Wayne Jones, 74, who had been an election commissioner; and William E. Stivers, 61, a former precinct worker.

Former Magistrate Stanley Bowling; Bart Morris, who owned a garbage-hauling business; and his wife, Debra Morris, pleaded guilty in the case in September.

The eight were charged with being part of a racketeering conspiracy to use the county Board of Elections as a tool to buy or steal votes — by appointing corrupt precinct workers, for instance — in the 2002, 2004 and 2006 elections.

Witnesses at a 2010 trial in the case said candidates pooled hundreds of thousands of dollars to buy votes as part of the scheme, with power, jobs and contracts as the prizes. A jury convicted the eight of all charges against them in 2010.

However, a federal appeals panel ruled this year that U.S. District Judge Danny Reeves, who presided over that trial, allowed prosecutors to present evidence that should not have been given to jurors. The appeals panel said the eight had not gotten a fair trial and voided the convictions.

(Mike Frisch)


Read more here: http://www.kentucky.com/2013/11/06/2915753/five-remaining-defendants-in-clay.html#storylink=cpy

September 22, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2014

Power Point Presentation Leads To Remand

The Illinois Review Board has remanded a matter where it concluded that violation of a procedural rule justified full rehearing of proven serious misconduct.

The Rule:

(a)    Post‑Trial Motions.  Except as provided herein, post-trial motions shall not be filed with or considered by the Hearing Board.  A matter which might otherwise be presented by post-trial motion may be the subject of an exception filed with the Review Board.  Motions for an extension of the time within which to file exceptions to the report of the Hearing Board shall be ruled upon by the chair of the hearing panel which prepared the report.

(b)    Closing Argument.  The Hearing Board shall not allow or consider written summations, written closing argument or post-trial memoranda.  (Amended, effective July 25, 1986.)  

The Review Board

The Hearing Board found that Respondent engaged in egregious misconduct including intentionally misappropriating client funds in two separate matters, lying to a police officer, lying to the ARDC, and fabricating bank records in order to mislead the Administrator. The Hearing Board recommended that Respondent be suspended from the practice of law for three years and until further order of the Court, with the added requirement of restitution in the amount of $57,646.78. Respondent has filed exceptions, claiming that the Hearing Board Chair erred by violating certain Commission rules and by allowing certain testimony. Specifically, Respondent contends that the Hearing Board erred in holding the hearing on non-contiguous dates and in accepting and considering, following closing arguments, a PowerPoint presentation by the Administrator. The Respondent also argues that the Hearing Board's findings of misconduct are against the manifest weight of the evidence. Because we agree with Respondent that the Hearing Board erred in considering written closing summations, we need not consider Respondent's other arguments.

Reasoning

In this matter, the Administrator used PowerPoint slides as demonstrative evidence during closing arguments that apparently summarized the evidence. While we do not have the slides before us to review, the parties indicated their agreement that the slides consolidated the evidence before the Hearing Board. Indeed, when the Chair of the Hearing Panel requested to review the slides following the closing arguments he stated, "We're not going to consider it for evidence; but it's a nice way to consolidate some of the evidence that's been around."

While the Administrator contends that the PowerPoint slides were not written summations or written closing arguments pursuant to Commission Rule 284, we disagree. Slides that contain the consolidation of evidence are clearly written summations. We also reject the Administrator's argument that Respondent waived his objection as he failed to object to the Panel's receipt of the slides during the hearing. The Rule is clear. Rule 284 prohibits the Hearing Board from considering this type of evidence.

Finally, the Administrator argues that Respondent has failed to demonstrate that the Hearing Board's actions prejudiced him in any way, noting that Respondent does not claim that any part of the PowerPoint slides is inaccurate or prejudicial, other than noting that one slide was a picture of a spider web. Again, the slides are not contained in the record...

We recognize that Respondent in this matter has been charged with very serious misconduct that, if proven, would warrant the severest of sanctions. However, the reality is that the Rules exist to protect not only the Administrator but also all respondents, including those charged with egregious misdeeds. To hold otherwise would render the Rules meaningless.

We reluctantly find that the Hearing Board erred by accepting a written summation of the evidence in violation of Commission Rule 284, and we remand this matter to the Hearing Board for a new hearing.

Not sure I understand the value of a rule prohibiting post-hearing submissions. I'm even less sure that remand is appropriate under the circumstances.

The Review Board's regrets are fully justified. (Mike Frisch)

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

Million Dollar Escrow Shortfall Draws Short-Term Probation

An attorney who "failed to safeguard entrusted funds of at least $1 million" in connection with real estate transactions was placed on probation for six months by order of  the Pennsylania Supreme Court.

The misconduct arose in a series of businesses in which the attorney had an ownership interest. He was aware of and covered for misconduct by other persons associated with his various entities.

He was not criminally prosecuted.

The Disciplinary Review Board found that the conduct violated Rule 8.4(c) and noted that the attorney "admitted that he concealed the shortfalls in the esccrow accounts and expressed remorse. He appears chastined by this experience and willing to accept discipline."

"Willing to accept discipline?" How refreshing.

The DRB rejected alleged Rule 1.15 (safekeeping property) charges because

There was no evidence presented that clearly and satisfactorily demonstrated that [he] at any time participated in real estate closings, or in any other way presented himsellf as a lawyer to anyone in connection with his ownership interests and job responsibilities for those entities. Respondent's duty under Rule 1.15(a) was to safeguard funds contingent upon the existence of a client-lawyer relationship. He did not violate this duty, and he did not violate [the Rule].

The lenient sanction proposed by the DRB and adopted by the court is a direct result of the above (and in my view highly debatable) legal conclusion. Although not made crystal clear in the DRB findings, it does appear that the misconduct directly related to the operation of escrow accounts for which the attorney was responsible.

The Office of Disciplinary Counsel had sought disbarment. (Mike Frisch)

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

Thursday, September 18, 2014

South Carolina Considering Rule And Comment Changes

The South Carolina Supreme Court has posted a petition from the State Bar to amend Rule 1.6. The amendments appear to conform to recent ABA adopted rules changes.

Rule 1.6(b) would have this exception

(8) to detect and resolve conflicts of  interest arising from the lawyer's change of employment or from changes in the  composition or ownership of a firm, but only if the revealed information would  not compromise the attorney-client privilege or otherwise prejudice the client.

And new comments

[13]  Paragraph (b)(8) recognizes that lawyers in different firms may need to disclose  limited information to each other to detect and resolve conflicts of interest,  such as when a lawyer is considering an association with another firm, two or  more firms are considering a merger, or a lawyer is considering the purchase of  a law practice.   See Rule 1.17, Comment  [6].  Under these circumstances, lawyers  and law firms are permitted to disclose limited information, but only once  substantive discussions regarding the new relationship have occurred.  Any such disclosure should ordinarily include  no more than the identity of the persons and entities involved in a matter, a  brief summary of the general issues involved, and information about whether the  matter has terminated.  Even this limited  information, however, should be disclosed only to the extent reasonably  necessary to detect and resolve conflicts of interest that might arise from the  possible new relationship.  Moreover, the  disclosure of any information is prohibited if it would compromise the  attorney-client privilege or otherwise prejudice the client (e.g., the fact  that a corporate client is seeking advice on a corporate takeover that has not  been publicly announced; that a person has consulted a lawyer about the  possibility of divorce before the person's intentions are known to the person's  spouse; or that a person has consulted a lawyer about a criminal investigation  that has not led to a public charge).  Under  those circumstances, paragraph (a) prohibits disclosure unless the client or  former client gives informed consent.  A  lawyer's fiduciary duty to the lawyer's firm may also govern a lawyer's conduct  when exploring an association with another firm and is beyond the scope of  these Rules. 

[14]  Any information disclosed pursuant to paragraph (b)(8) may be used or further  disclosed only to the extent necessary to detect and resolve conflicts of  interest.  Paragraph (b)(8) does not  restrict the use of information acquired by means independent of any disclosure  pursuant to paragraph (b)(8).  Paragraph  (b)(8) also does not affect the disclosure of information within a law firm  when the disclosure is otherwise authorized, see Comment [6], such as when a  lawyer in a firm discloses information to another lawyer in the same firm to  detect and resolve conflicts of interest that could arise in connection with  undertaking a new representation.

And this comment would be added to Rule 1.17 on the sale of a practice

[6] Negotiations between seller and  prospective purchaser prior to disclosure of information relating to a specific  representation of an identifiable client no more violate the confidentiality  provisions of Rule 1.6 than do preliminary discussions concerning the possible  association of another lawyer or mergers between firms, with respect to which  client consent is not required.  See Rule  1.6(b)(8).   Providing the purchaser access to detailed  information relating to the representation, such as the client's file, however,  requires client consent.  The Rule  provides that before such information can be disclosed by the seller to the  purchaser regarding an active client, the client must be given actual written  notice of the contemplated sale, including the identity of the purchaser, and  must be told that the decision to consent or make other arrangements must be  made within 90 days.  If nothing is heard  from the active client within that time, consent to the sale is presumed.

(Mike Frisch) 

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

Schindler's Listing

The District of Columbia Court of Appeals has imposed an 18-month suspension with fitness in a matter involving an attorney admitted in 1969.

In 1969, attorneys were admitted by the federal district court. The court of appeals assumed disciplinary authority over such attorneys when it was created in 1972.

The misconduct involved two rather unusual matters where the attorney filed lawsuits on his own behalf. One involved a painting; the other a swimming pool.

First, the painting

Respondent acquired a landscape painting that he believed was the work of 19th century Austrian artist Emil Jakob Schindler ("the painting" or "the Schindler painting"). In February 1993, he contacted Christie's London office in response to an advertisement he had received from the firm about an auction of German and Austrian art it planned for May of that year. In his letter to Christie's, Respondent proposed to consign the painting to Christie‟s for the auction. He testified before the Hearing Committee that, through telephone conversations, he and Wendy Goldsmith of Christie's reached an oral consignment agreement under which Christie's was required to offer the painting for sale as an "unqualifiedly authentic Schindler painting" and was specifically prohibited from seeking an expert opinion as to the painting‟s authenticity.

Christie's sought an expert opinion on the authenticity of the painting and refused to sell it when their expert demurred.

The attorney sued Christie's and engaging in a pattern of frivolous filings.

As to the pool

During June and July of 2004, the volunteer members of the governing board of Palisades, a private non-profit corporation that operates a recreational pool and tennis facility of which Respondent was a member, received complaints about Respondent‟s behavior at the facility, which is located in Montgomery County, Maryland. The numerous complaints alleged that Respondent interfered with children‟s dive team practices and competitions, pushed young children aside in the pool and used profanity around them, and made inappropriate and sexually suggestive comments to pool patrons and staff members, some of whom were teenagers.

The attorney sued the governing board in federal court for its response to the situation and engaged in similarly abusive litigation. 

The court noted

The record supports the Hearing Committee‟s finding that Respondent sued because he wanted to make miserable the lives of Palisades Board members who had had the "temerity to tell him that his behavior was unacceptable," not because he had claims that he legitimately believed entitled him to relief under the law. In addition, there was no basis in fact or law for Respondent‟s claim that the court had diversity jurisdiction.

And as to sanction

...through his conduct in the Christie’s and Palisades litigation, Respondent violated several provisions of the Rules of Professional Conduct. Far from exhibiting remorse for his egregious and repeated misconduct, Respondent has refused to acknowledge that he has engaged in any wrongdoing. While Respondent has no prior disciplinary history, this factor does not weigh heavily in his favor in light of his representations that he has not been engaged in the practice of law for nearly three decades, with the exceptions of his involvement in Christie’s and Palisades.

Update: The attorney died last month. We will see what action the court takes in response to a suggestion of death.  (Mike Frisch)

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

Escrow Violations Lead To Suspension

A one-year suspension was imposed by the New York Appellate Division for the Second Judicial Department for misconduct in disbursing funds held in trust.

The attorney made premature disbursements in real estate transactions by using funds held on behalf of an unrelated family trust.

Although the attorney was inexperienced in handling entrusted funds and had no prior discipline, these kinds of violations get lawyers suspended:

Notwithstanding the mitigating evidence, the respondent's release of escrowed funds prior to the closing in each of the aforementioned transactions, without the consent of both parties to the transactions, demonstrates his failure to honor his obligations as a fiduciary, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15(a). Although the respondent may not have fully understood his fiduciary obligations, he is "held to the knowledge of the rules governing attorney [special] accounts" (Matter of Kosten Hui Feng, 78 AD3d 123). Furthermore, despite his claims to the contrary, we find that the respondent received a "direct benefit" from his conduct, inasmuch as his fee with respect to the Cohn Trust sale was paid in advance of the closing. Moreover, inasmuch as the respondent's wife, Denise Tedeschi, and his sister-in-law, Marilyn Davis, are principals of both Gold Star and Lenart, the sellers in the Taylor Avenue and Colden Avenue sales, respectively, the respondent's partial release of escrowed funds in connection with those sales inured to the benefit of members of his family.

Lesson: Funds are not to be paid out of escrow until the necessary deposited checks clear. (Mike Frisch)

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

Cassidy on Reforming the Law School Curriculum From the Top Down

Mike Cassidy at the Boston College Law School has an interesting essay on curricular reform forthcoming in the Journal of Legal Education.  Here's the abstract:

With growing consensus that legal education is in turmoil if not in crisis, law schools need to take advantage of industry upheaval to catalyze innovation in the way they train their students. Curriculum reform, long the “third rail” of faculty politics, is now essential if some law schools are going to survive the present tsunami of low enrollments and stagnant hiring. One cautiously optimistic note within this doomsday symphony is that law school deans are now in extremely strong bargaining positions with their faculties and boards of trustees with respect to curriculum innovation.

In this essay, the author proposes a pivotal reform to the third year curriculum involving team-taught “Advanced Legal Problem Solving” workshops in subject specific areas, and describes the precise structure, content and staffing of such capstone courses. He argues that such workshops would significantly enhance the preparation of law students for entry into the profession, and would create an efficient and cost-effective route for law schools to satisfy rigorous new ABA accreditation standards regarding experiential learning and outcomes assessment.

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

Wednesday, September 17, 2014

Hoboken Hustle

The New Jersey Supreme Court has issued a (now relatively rare) full opinion in a bar discipline matter.

The Disciplinary Review Board had recommended a three-year suspension because the attorney, a former public official,  was "stung" in a federal operation.

The court disbarred the former Mayor of Hoboken convicted of criminal conspiracy

 ...respondent pled guilty in United States District Court for the District of New Jersey to one count of conspiracy to obstruct interstate commerce by extortion under color of official right,

From the court's summary

Respondent’s unethical conduct, consisting of offering favored treatment to a private developer in exchange for money, betrays a solemn public trust and undermines public confidence in honest government, thereby warranting his disbarment.

1. The disciplinary review process is intended to protect the public from unfit lawyers and promote public confidence in the legal system. The proper measure of discipline generally depends on a number of factors, including prior disciplinary history and the harm caused by the attorney’s transgressions. However, certain violations are so patently offensive to the elementary standards of a lawyer’s professional duty that disbarment is per se warranted. Thus, misconduct that breaches a fundamental and solemn trust, such as a lawyer’s involvement in a public-corruption bribery scheme, invariably triggers automatic disbarment. (pp. 7-8)

2. The public’s confidence in honest government and the democratic system cannot be sustained when bribery is the basis for official decisionmaking. An attorney and office holder who accepts bribes violates both the oath he took as an attorney and the one he took on assuming his public position, and such conduct is wholly incompatible with the high standards expected of members of the bar. Caselaw in New Jersey and other jurisdictions establishes precedent for disbarring attorneys who, as public officials, have accepted bribes in exchange for preferential treatment, as well as attorneys who have themselves bribed public officials. Attorneys who commit such misconduct are unlikely to find refuge in the few exceptions in New Jersey jurisprudence to the general rule that disbarment is the discipline for attorneys who engage in official bribery. Going forward, any attorney who is convicted of official bribery or extortion should expect to lose his license to practice law in New Jersey. (pp. 8-11)

3. Here, the Court disagrees with the DRB majority that the seriousness of respondent’s misconduct is mitigated because his betrayal occurred during a federal sting operation. Moreover, the Court did not view respondent as a passive player in the scheme. The Court acknowledges respondent’s prior unsullied reputation, service to the community, and expression of remorse, and applauds the steps he has taken to right his life. However, the concerns raised by this case are greater than whether this respondent is capable of rehabilitation. Any discipline short of disbarment will not keep faith with the Court’s charge to insure that the public will have confidence in members of the bar and in those attorneys who are privileged to serve as public officials. Consequently, respondent is disbarred. (pp. 11-12)

New Jersey has fallen into the habit of the court simply entering a summary order and attaching the Disciplinary Review Board report.

I prefer to see a state high court fully engaged in the business of upholding the integrity of its Bar. (Mike Frisch)

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

Attorney Charged With False Statements After Former Attorneys Secure Unpaid Fee Judgment

The Illinois Administrator has filed an amended complaint alleging that an attorney engaged in dishonest conduct in connection with efforts to discover his assets in a post-judgment matter.

The plaintiff in the litigation was a law firm that had represented him in three matters:

Between 1999 and 2003 attorneys at the law firm  of Kamensky, Rubinstein, Hochman & Delott, LLP ("KRHD") represented Respondent  with respect to three legal matters. During the time that KRHD represented  Respondent, the firm charged Respondent $24,347.66 for legal services it  provided him.

Between 2000 and 2007 Respondent did not pay  KRHD any portion of the $24,347.66 in charges that he had incurred for legal  service KRHD had provided to him.

...KRHD filed a  complaint against Respondent in the Circuit Court of Cook County to collect from  Respondent the legal fees that it claimed Respondent had not paid to the firm.  The matter was docketed as Kamensky, Rubinstein, Hochman & Delott, LLP v.  Robert A. Holstein, case number 2007 M2 799. On or about December 20, 2007,  Respondent filed an answer to that complaint and the matter was transferred to  mandatory arbitration.

...following a hearing, the  arbitrator entered an award in favor of KRHD against Respondent...

The complaint alleges that in a proceeding to discover assets

Respondent's...statements about  not having any personal credits cards..were  false. As Respondent knew, he had opened a credit card account with Bank of  America in June of 2002, which appeared on the credit report Ms. Minnich showed  Respondent, and that account remained open at the time of the citation  examination. Respondent further knew that he or someone at his direction had  made payments on that Bank of America account from fees Respondent had deposited  into his Oak Bank and Chase Bank operating accounts...after he had received the citation to discover  assets.

(Mike Frisch)

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

Tuesday, September 16, 2014

Conclusory Allegations Rejected

An Illinois Hearing Board has ordered a reprimand of an attorney, finding that the Administrator had proven one of four charges of violation of the ethics rules.

The board found that the attorney made a misrepresentation to opposing counsel.

The board was sharply critical of what it characterized as charges unsupported by evidence

...the Amended  Complaint does not allege the specific acts on which the charge of hiding assets  from a judgment creditor is based. The charge that Respondent was "hiding  assets" is simply a conclusion based upon conduct that is not identified in  paragraph 17(a) of the Amended Complaint. During closing argument  Administrator's counsel explained that the "evidence demonstrates a course of  conduct by this Respondent . . . [of] hiding those funds from being known by Ms. Shymansky and her  attorneys." (Tr. 223, 231-32). Administrator's counsel identified various acts  by Respondent as being part of the course of conduct that purportedly show his  hiding of assets and dishonesty. One of those acts was the Assignment itself  that Respondent entered into with Susan Irwin. Another act was that, although  Respondent gave Shymansky's attorney a copy of the Assignment, Respondent did  not explain any understanding, or side agreement, that he and Irwin had  regarding the Assignment. Additionally, Respondent's transfers of funds to Irwin  for her personal use were "actions to subvert the purpose of a legally valid  lien [and] were dishonest." (Tr. 217-18). Still another act referred to in  closing argument was that in an Answer filed to a Motion for Turnover,  Respondent stated "that the funds were absolutely assigned to his firm. And the  funds were, therefore, not subject to turnover." (Tr. 221).

The Amended Complaint, however, does not allege  that the charge of hiding assets is based on a "course of conduct," on the  Assignment itself, on the failure to explain the Assignment to Shymansky's  attorneys, on the disbursement of funds to Irwin, or on the statement in  Respondent's Answer to the Motion for Turnover.

Mitigation

It was stipulated that the Respondent has not been  previously disciplined. (Tr. 212).

Respondent testified that he is 69 years of age and  was admitted to the practice of law in 1973. He has been in private practice  since 1976. He reports about 400 hours of pro bono work each year, he has  been a member of the Illinois State Bar Association throughout his career, and  was a charter member of the Illinois Bar Foundation. He is also a member of the  National Bar Association and the Christian Law Society. He  mentioned various charitable and civic organizations in which he has been  active, including the Rutledge Youth Foundation, Habitat for Humanity, and  Sojourn House. (Tr. 141-59).

Five character witnesses testified on behalf of  Respondent.

Phil Chiles, a realtor and builder, met Respondent  in about 1994 when he and Respondent served on the board of Habitat for  Humanity. Chiles said Respondent's reputation for honesty and integrity is above  reproach. (Tr. 162-65).

Kathleen Benner testified that she was Respondent's  legal secretary for about 25 years. She said Respondent's had a reputation for  being "most moral, decent, and honest." (Tr. 167-69).

Sam Nichols, a commercial real estate broker and  developer, has known Respondent since the late 1970s. He said Respondent has a  reputation for being "a good lawyer" and "a good man." (Tr. 170-74).

Avrum Mark Rabin, an attorney, was a law partner of  Respondent and two other attorneys for four years, starting in about 1986. He  said that Respondent's reputation for honesty and integrity is excellent within  the legal community. (Tr. 175-78).

Brad Warren, an executive director at Benedictine  University, met Respondent at the church where they both attend. He said  Respondent has a reputation for being honest. (Tr. 179-81).

The Amended charges were filed on the day of the hearing, according to the board. (Mike Frisch)

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

Monday, September 15, 2014

No Malpractice For Failure To Anticipate Change In Law

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to the defendants in a legal malpractice claim.

The client was a medical doctor who had an employment issue. The basis of the malpractice was the allegation that the defendants had mishandled the opposition to a motion to compel arbitration.

The court

We conclude that it is not malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent...Neither a reasonably competent lawyer nor a reasonably competent employment law specialist commits malpractice by failing to anticipate or advocate for the overruling of an established employment law precedent.

The court also rejected the breach of fiduciary duty claim with respect to the withdrawal from the representation

As demonstrated by the e-mail [client] Minkina sent to the partners of RPS, the attorney-client relationship had broken down here. She had accused her primary counsel at the small firm handling her case of gross negligence that had cost her thousands of dollars. She accused this same lawyer of being more concerned with defense counsel interests than Minkina's own interests. She complained about the performance, or lack thereof, of other counsel in the firm as well. She undisputedly did not trust or have confidence in her principal lawyer or the other lawyers who had assisted her in the litigation. As the OBC found, this breakdown in the relationship justified the withdrawal of the representation. We agree.

As noted above, the client filed a bar complaint that did not lead to findings of misconduct. (Mike Frisch)
 

September 15, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Ring Of Truth

 The Louisiana Attorney Disciplinary Board has found no misconduct in a matter that came to light during a disciplinary proceeding against another attorney.

The attorney was charged with dishonesty after testifying at a deposition about a ruby ring given to her by another attorney

During her sworn statement, Respondent admitted that she had the ring at one time as it was given to her as a gift by Mr. Austin but claimed it was lost during Hurricane Rita. When Deputy Disciplinary Counsel asked Respondent during the sworn statement when she received the ring from Mr. Austin, Respondent testified that she received the ring for Christmas 2005. Upon undersigned Deputy Disciplinary Counsel pointing out to Respondent that it was inconsistent for her to claim the ring was destroyed during Hurricane Rita in September 2005, when she claims to not have received it until December 2005, Respondent attempted to change her prior testimony regarding the ring. By the end of the sworn statement Respondent admitted that she may have hidden the ring and would attempt to locate the ring. Following the sworn statement, Respondent's Counsel contacted undersigned Deputy Disciplinary Counsel informing her that Respondent had found the ring and attempted to retract her prior statements to the ODC that she did not have the ring in her possession. Respondent's Counsel also instructed Respondent to return the ring to Lillian Beter, and Respondent did return the ring.

The Disciplinary Board affirmed the Hearing Committee's finding of no violation

Respondent admitted that she may have hidden the ring and would attempt to locate the ring. Following the sworn statement, Respondent's Counsel contacted undersigned Deputy Disciplinary Counsel informing her that Respondent had found the ring and attempted to retract her prior statements to the ODC that she did not have the ring in her possession. Respondent's Counsel also instructed Respondent to return the ring to Lillian Beter, and Respondent did return the ring.

The ring was found in a sock in a dresser along with other jewelry. (Mike Frisch)

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

Elevator Going Down

An attorney who consented to disbarment in Pennsylvania has been reciprocally disbarred in New Jersey. 

The attorney engaged in deceitful misconduct (not for personal financial gain) in defending an elevator company in two persobal injury actions. He falsely billed a second elevator company (Otis) for legal services.

The motive was unclear

Here, respondent has provided no evidence to us that he was unable to keep up with his work assignments. It is possible that he was simply overwhelmed by his workload or inexperienced and/or unwilling to ask his employer for help or guidance. He entered into his course of misconduct in 2008. He had been admitted to the Pennsylvania bar in 2005 and to the New Jersey bar in 2007. This may well be a case of a young attorney who was simply in over his head or in a  That being said, the burden of going forward with a defense or mitigation falls on respondent. He has provided no indication that he has any defense to his actions or factors tending to mitigate them.

The record shows that, in addition to his false billing practices, respondent was guilty of an assembly of various forms of deception. Setting aside, for the moment, his fraudulent billing, we find that he is guilty of misrepresentations to his clients, his adversaries, his law firm, and the court. He has displayed a pattern of duplicity that evidences a serious deficiency in his character. He also settled cases without his clients’ authorization, lacked diligence in his representation of their interests, failed to communicate with his clients, and engaged in conduct prejudicial to the administration of justice by wasting judicial resources in resolving his clients’ matters, without authorization to do so, and causing additional judicial action to be required.

(Mike Frisch)

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

Goodbye Columbus

The Ohio Supreme Court has suspended an attorney based on a felony conviction.

Huffpost Crime had this story on the attorney

An Ohio attorney is accused of raping a woman in a courthouse conference room after she refused to have sex with a judge.

Columbus-based criminal defense attorney Javier Armengau, 52, allegedly tried to convince the mother of his client to perform oral sex on a judge, The Columbus Dispatch reports. Armengau said that the judge was "in his pocket" and that by pleasing him the woman could obtain a favorable sentence for her son, the alleged victim said in her testimony.

After the woman refused, Armengau allegedly assaulted her in a conference room.

The Marion Star noted the attorney's recent conviction and 13 year prison sentence. (Mike Frisch)

September 15, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Twenty Years Of Tax Non-Payment Gets Tax Attorney Suspended

An attorney who had failed to pay state and federal income taxes for two decades was suspended for two year by the New York Appellate Division for the Second Judicial Department.

This post from the New York State Department of Taxation and Finance indicates that he was a tax attorney by trade.

The court

In determining the appropriate measure of discipline to impose, the respondent asks that the Court consider the following mitigating factors: his excellent reputation, both personally and professionally, for competence, honesty, and integrity; his full cooperation with the Grievance Committee and this Court; his genuine remorse and contrition; the lack of harm to any client; as well as his previously unblemished disciplinary record. However, the record reveals that the respondent's conduct in failing to file his personal income tax return was not aberrational. Indeed, the respondent, a seasoned attorney, failed to honor his New York State and Federal personal income tax obligations for nearly two decades. From 1991 through 2002, although the respondent filed both his New York State and Federal income tax returns, he failed to pay the taxes due. From 2003 through 2007, the respondent failed to file his New York State and Federal income tax returns, as well as pay any tax due. It was not until the respondent was under investigation by the New York State Department of Taxation and Finance, in 2008, that he began to take corrective action. Nonetheless, he continued to fall short of his obligations, as evidenced by his failure to timely file his income tax returns for tax year 2009, which led to the underlying conviction. As a result of the respondent's failure to honor his personal income tax obligations, he has amassed combined New York State and Federal tax liabilities of approximately $800,000, including interest and penalties. Although the respondent candidly accepts responsibility for his actions, he is unable to offer an explanation for his wrongful behavior.

The court rejected the attorney's plea for a censure and noted that payment of one's fair share of the tax burden is an obligation owed by all citizens. (Mike Frisch)

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

Law License Needed For New York Legal Consultant Practice

An attorney admitted as a legal consultant based on her law license from Greece has resigned from the New York Bar.

The attorney had been licensed in New York since 1999.

Ms. Karamanlis acknowledges that she is the subject of a pending investigation into allegations that she allowed her law license in Greece to lapse and that, as a result, she is no longer eligible to be a licensed legal consultant. She acknowledges that she could not successfully defend herself on the merits against charges predicated upon the foregoing

The resignation was accepted by the Appellate Division for the Second Judicial Department. (Mike Frisch)

September 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Failure To Cooperate

A three-year suspension was ordered by the New York Appellate Division for the Second Judicial Department of an attorney who failed to respond to a series of twelve bar complaints

The Grievance Committee called three witnesses—a law stenographer who identified the correspondence she prepared, and sent, to the respondent on the Grievance Committee's behalf; a New York attorney who forwarded the respondent's mail to him at the Fairview address; and an investigator employed by the Grievance Committee, who was responsible for locating the respondent—and entered 28 documents in evidence, which established the factual allegations. Testifying in his own behalf, the respondent acknowledged that he has lived at the Fairview address since August 2008, and that he did not notify the Office of Court Administration of his change of address when he relocated to Texas, despite the requirement that he do so. Nonetheless, the respondent corresponded with the Grievance Committee in October and December 2008, using the Ocean Beach address. Moreover, in or about June 2009, the respondent requested that the Committee communicate with him at the Sayville address. Based upon the evidence adduced, we conclude that the Special Referee properly sustained all 12 charges. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted.

On sanction

In determining an appropriate measure of discipline to impose, we note that the respondent has engaged in a pattern and practice of failing to cooperate with the Grievance Committee's investigations. While the respondent testified in mitigation that he was afflicted with Lyme Disease, which affected his memory and cognitive abilities during the relevant period, the Special Referee found this testimony to be "completely not credible." We find no basis in the record to disturb the Special Referee's credibility determination, which is entitled to great weight...We note, further, that the respondent has a prior disciplinary history consisting of two letters of caution (1994, 2005) and a reprimand (2008) for, inter alia, neglect and lack of diligence in attending to legal matters entrusted to him, and improper withdrawal from a litigated matter.

(Mike Frisch)

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

Friday, September 12, 2014

Debit Card Misconduct Leaves Attorney Minus Law License

The Nebraska Supreme Court has determined that disbarment is the appropriate sanction in a matter involving misappropriation and other misconduct.

The facts

In 1977, respondent was admitted to practice law in Nebraska. Between 1982 and 2005, she was elected or appointed to various public offices, including the Omaha Board of Education, the Omaha City Council, and the Commission of Industrial Relations. In 2005, respondent went into private practice in Omaha, Nebraska. She maintained this practice at all times relevant to these disciplinary proceedings.

Between 2009 and 2013, respondent served as a state senator for the 11th legislative district. After her initial election, her campaign committee, designated the "Committee to Elect Brenda Council" (campaign committee), remained in existence. The campaign committee had a separate bank account for which respondent held a debit card.

Between January 2010 and July 2012, respondent took out more than $63,000 in cash advances using the campaign committee’s debit card and spent those funds for gambling. She also made various deposits into the campaign committee’s account in an attempt to "repay those campaign funds." Respondent did not report the withdrawals or the subsequent deposits on her campaign statements filed with the Nebraska Accountability and Disclosure Commission (NADC).

The attorney pleaded guilty to misdemeanor charges.

A referee had proposed a one-year suspension followed by probation for two years. (Mike Frisch)

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