Tuesday, August 4, 2015

Making Bar Counsel's Job Harder

The District of Board on Professional Responsibility has recommended that an attorney who had misappropriated entrusted funds and failed to participate in the disciplinary proceedings be disbarred.

Nothing remarkable about that result but my attention was drawn to the following footnote

We note that Bar Counsel charged Respondent with violating Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation) in both the Mills and Anderson Matters. The Court has held that each of the four terms encompassed by Rule 8.4(c) “should be understood as separate categories, denoting differences in meaning or degree.” Each category of misconduct under Rule 8.4(c) thus requires different elements of proof. See In re Romansky, 825 A.2d 311, 315 (D.C. 2003). Notwithstanding the clear holding of Shorter, Bar Counsel declined to identify the element or elements of Rule 8.4(c) on which it relied to establish a violation, when the Hearing Committee invited it to do so at the conclusion of the hearing. Tr. 263-64. In its post-hearing brief, Bar Counsel explained that “classifying which type of dishonesty occurred [] would not change the fact that Respondent violated Rule 8.4(c), or affect the appropriate sanction,” because Respondent had committed each of the four types of misconduct “[a]t some point.” See Bar Counsel’s Post-Hearing Brief at 46 (emphasis in original). Yet, Bar Counsel still failed to specify the facts that supported each of the elements of Rule 8.4(c). As a result, the Hearing Committee was left to sift through the evidence on its own, concluding that Bar Counsel proved that Respondent committed dishonesty, deceit and misrepresentation, but not fraud, in the Anderson Matter, and that Respondent committee all four types of misconduct in the Mills Matter. See H.C. Rpt. at 39-43; 59-62. Bar Counsel’s reluctance at the outset to specify the elements underlying the Rule 8.4(c) charges, and its eventual failure to identify the facts underlying each element of a violation in its brief, raises potential due process concerns for respondents, although we find none here; Respondent made no attempt to participate in this disciplinary proceeding and should be disbarred under Addams in any event, regardless of any violation of Rule 8.4(c). At the least, Bar Counsel’s failure to clarify its theory of prosecution created a burden for the Hearing Committee, which diligently matched the facts to the Rule 8.4(c) elements.

Pardon my broken record, but this is nonsense.

These are not criminal proceedings. If it was a criminal proceeding, crimes can be charged in the alternative and are subject to lesser-included offense provisions. 

As the Court of Appeals explained years ago in rejecting a board order of dismissal on speedy trial grounds

A disciplinary sanction differs from a criminal conviction. Although both protect the public, they do so in different ways. Most importantly, an attorney is in a continuing position of trust toward clients, the courts, and society in general. A member of the bar has accepted the onerous responsibility of participating in the administration of justice. We grant the license to practice law as a privilege, not as a right, and we do so only on the strict condition that the attorney aspire to the highest standards of ethical conduct. 

Simply out, the board wants to enforce a procedure that forces Bar Counsel to do something unheard of in disciplinary law - elect the subsection of a rule that clearly describes gradations of the same type of misconduct.

If the attorney violates the rule in any respect, sanction follows. That is what the Shorter case holds.

And if Bar Counsel gets it wrong (something the board treats as the rule, not the exception), does the lawyer go free because the misconduct involved dishonesty but not misrepresentation?

Poppycock!

Romansky (which I handled for several of the many years it took to decide) and Shorter do not remotely stand for this pleading proposition.

The only thing driving this assault of commonsense is a desire to make Bar Counsel's job harder and create rights for lawyers that no one else has in any adjudicatory forum. These proceedings exist to protect the public and the integrity of the profession.

Creating procedures to make enforcement a hide-the-ball game is directly contrary to the reason the board is supposed to exist.

And because neither the attorney or Bar Counsel will appeal the recommendation, going forward they will cite this footnote as authority for requiring Bar Counsel to engage in all sorts of "elections" in dishonesty and misappropriation cases.

 The case is In re Jerome Clair. (Mike Frisch)

August 4, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 3, 2015

D.C. BPR: No Moral Turpitude, No Suspension, For Felony Hit-And-Run

The report of the District of Columbia Board of Professional Responsibility in the case of Wayne Rohde, Board Docket No. D347-05, has been filed.

You may remember the case - it involves an attorney who drove from the District of Columbia to Virginia after a night of heavy drinking. He struck and seriously injured another motorist, fled the scene but left his car bumper with license plate affixed behind.

He pled guilty and was sentenced in 2005 to felony criminal charges in Virginia.

The D.C. disciplinary system began its processes that same year.

It took seven years for the hearing committee to file a report on the ethics charges. On the plus side, the Board acted faster but to no better result.

The board  found that the conduct did not involve moral turpitude because the attorney was suffering from an "alcoholic blackout" when he committed these crimes.

The effect of the "blackout" was a subject of conflicting expert testimony

[Bar Counsel expert] Dr. Blumberg disagreed with [respondent's expert] Dr. Whitfield concerning the effects of an alcoholic blackout. In his opinion, a person suffering an alcoholic blackout can still access his long term memory and is able to distinguish right from wrong; the person still knows when his or her behavior is illegal or unethical. FF 90. Applying these principles to this case, Dr. Blumberg testified that at the time of the collision, Respondent was aware of the collision and understood that it was wrong to leave the scene, even if he later did not remember having such knowledge or awareness. FF 92. Dr. Blumberg opined that Respondent did not lose the ability to appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the law and that he retained the ability to form the specific intent to stop and render aid to Ms. Banks. Although Respondent’s judgment was impaired, he did not lose the capacity to choose the proper course of action. FF 93. In support of his opinion, Dr. Blumberg observed that Respondent was able to perform a number of other tasks during his alcoholic blackout, including paying his bar tab, with a tip, retrieving his car from the parking garage, and driving to the scene of the collision and then home after colliding with Ms. Banks. FF 94. Respondent’s ability to drive home suggested an awareness that he was involved in an accident and that he was choosing to leave the scene. FF 95. Dr. Blumberg agreed with Dr. Whitfield that, but for Respondent’s intoxication, he would not have left the scene of his collision with Ms. Banks. FF 96. The determination of the credibility of the experts was central to the Hearing Committee’s findings. The Hearing Committee found that it was a “close question,” FF 105, but ultimately credited Dr. Whitfield’s testimony in its entirety.

So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.

No real disciplinary consequences because he'a an alcoholic?

If it's a "close question," why not protect the public and uphold the integrity of the legal profession?

While the board found ethical violations, it was a treated as a mitigating factor that he was an alcoholic when he was driving drunk.

The proposed sanction is probation without suspension for a single day

we recommend that Respondent be suspended for two years with a requirement to prove his fitness to practice as a condition of reinstatement, and that the suspension be stayed in favor of a three-year period of supervised probation, subject to the conditions set forth by Hearing Committee Number Three in its Report and Recommendation. We further recommend that Respondent not be required to provide his clients notice of the probation.

For nearly killing someone and fleeing the scene. 

They note that the incident happened eleven years ago and never (unless I missed it) note that seven years of that time involved their own hearing committee's disgraceful delay.

And he doesn't need to tell his clients about it - it's double secret probation. 

By coincidence, he's a big firm lawyer. 

It's another day in the the world of the D.C. bar disciplinary system.

The Board report can be found at this link by entering the attorney's name. (Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Unneighborly Threat

The California Bar Journal reports a six-month suspension with credit for time served and probation for these incident

In the first incident, on Oct. 16, 2011, a police officer saw Sterkin yelling obscenities at people and shattering wine bottles in the middle of the street. Sterkin asked to be transported for mental health treatment, but struck an officer and resisted being placed in handcuffs. Later, Sterkin threatened a neighbor, stating: “I am going to slit your throat with a buck knife and watch your guts fall on the floor.” The neighbor had not had any prior contact with Sterkin and did not provoke the threat.

In mitigation, Sterkin cooperated with the State Bar and his successful completion of the Alternative Discipline Program, and the Lawyer Assistance Program indicates he no longer suffers from the mental health issue that led to his misconduct.

The attorney pleaded no contest to criminal charges "that occurred when he had not been taking his medication." (Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Oh Brother

More from the California Bar Journal

JOHN MICHEL GANTUS [#55038], 67, of Glendale, was disbarred March 1, 2015 and ordered to comply with rule 9.20 of the California Rules of Court.

The State Bar Court found that Gantus misappropriated $365,059.84 from his father’s estate, failed to file an inventory and appraisal or to file federal and state income tax returns for his late father and his estate and breached his fiduciary duties in the administration of the estate.

Gantus and his sister were to share equally in their late father’s estate, which was admitted to probate in November 2001. Gantus was to serve as executor of his father’s will the following March and was supposed to file an inventory and appraisal within four months. He didn’t do so for more than eight years. He also did not deposit any of this late father’s assets into an estate fiduciary account and instead put them into a non-interest bearing checking account on which both he and his father were signatories.

For more than seven years until he was removed as executor, Gantus kept rental income from the estate, making cash payments to himself and paying credit card bills and his son’s college tuition. When his sister asked for an accounting and her share of the estate, he did not oblige, leading her to hire an attorney. Gantus and his sister ultimately mediated the case and arrived at a settlement agreement.

He had one prior record of discipline, a 1998 public reproval for failing to deposit client funds in his client trust account or communicate with a client.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Capping

From the August 2015 California Bar Journal

 [An attorney] was disbarred Feb. 28, 2015 and ordered to comply with rule 9.20 of the California Rules of Court.

On Nov. 14, 2013, Martinez pleaded no contest to 43 felony counts of a practice known as “capping,” of soliciting legal business with the help of non-attorneys. According to his stipulation in which he agreed to disbarment, from 2006 to February 2012, Martinez used approximately eight cappers to obtain cases for his law firm. The cappers would listen to traffic scanners to identify automobile accidents, go to the scene and meet with the accident victims then refer them to Martinez for representation. Often, they would take the accident victims to Martinez’s office. In return, the cappers would receive a fee for their referral.

In addition, Martinez failed to comply with the terms of his disciplinary probation in another case by failing to submit quarterly reports to the Office of Probation on time and by not paying restitution in full by deadline.

He had one prior record of discipline, a 2012 suspension for failing to supervise by allowing his non-attorney staff to engage in the unauthorized practice of law and failing to supervise his employees (which allowed them to mishandle client funds), perform legal services with competence by not paying his clients’ bills for services rendered by their chiropractor or deposit his clients’ settlement funds into his client trust account.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

From Ethics Professor To Suspended Lawyer

Oklahoma's Own had the story behind a recently-entered order of interim suspension of the Oklahoma Supreme Court

Documents show one of Tulsa’s top lawyers is suspended from practicing law in Oklahoma.

Attorney Robert Nichols has taught ethics at University of Tulsa law school, but one of his former clients is accusing him of stealing almost $200,000.

Ralph Mackey said he trusted Nichols for years in an imminent domain case but when it came time to get a settlement check, Mackey said Nichols kept it all to himself.

Mackey said he never signed a check for $198,332, but his name is on it along with the real estate fraud attorney’s signature.

"Obviously didn't look like my signature at all. My heart just sunk. My stomach turned," Mackey said.

He and Nichols were in a five-year eminent domain fight with the City of Tulsa over plans to expand the Gilcrease Expressway - the expansion cut 20 acres out of Mackey's 40 acre property near 41st West Avenue and 31st Street.

Their negotiations were wrapping up this time last year and Nichols was set to accept the almost $200,000 settlement check on behalf of his client.

"Was looking forward to finally having everything ended, finally receiving my money," Mackey said.

But he never saw the check.

Mackey said he emailed Nichols for months -- "Hey Robert, do you have my money? How long have you had my money? Please answer all of my emails that you have not replied to."

He said Nichols' responses were just excuse after excuse until Attorney Edward Lindsey got involved and filed a lawsuit against his law firm.

"When you settle a case, the first person who should get their money is the client. And he was hiding that he had gotten the money and used the money for other purposes, and he had to be sued to come clean on that,” Lindsey said.

In the lawsuit, Edwards and Mackey are asking Nichols for $250,000. Edwards said Nichols has paid $7,000 of it, and Mackey needs the rest of it, ironically, to pay attorneys' fees.

"You're sitting around and you're waiting, and you're waiting, and waiting, and you haven't been paid and it affects everything," he said.

We called Nichols for comment but have not heard back. His law firm partner Brian Curthoys, who is named in the suit, has not had his license suspended.

From the court order

The [Oklahoma Bar association]  alleged instances of Respondent settling matters without client knowledge or approval and converting client funds to his personal use, and noted that Respondent continues to appear in district court on several condemnation cases where large Commissioner's awards and/or damage settlements are anticipated. The OBA also requested an Order prohibiting Respondent from withdrawing funds from his client trust account(s) until an audit may be performed.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

There Is No Greater Honor

From the web page of the Pennsylvania Disciplinary Board

The Disciplinary Board of the Supreme Court of Pennsylvania’s Deputy Chief Disciplinary Counsel Paul J. Burgoyne, has been elected to serve as President of the National Organization of Bar Counsel (NOBC). In this role, effective August 1, 2015, Mr. Burgoyne will preside at all meetings of NOBC and its Board of Directors, and act as the official spokesperson for the organization. Previously, Mr. Burgoyne served as President-Elect (2014-2015), Treasurer (2013-2014), Secretary of the NOBC (2012-2013) and two terms as a Director-at-Large (2007-2009, 2010-2012).

Paul J. Burgoyne
Paul J. Burgoyne

The NOBC is a non-profit organization of legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers who practice law in the United States, Canada, Australia and Great Britain. Composed of representatives from more than 75 state, local and federal lawyer regulatory agencies, the NOBC seeks to advance the goals of attorney regulation by making contributions through the American Bar Association and state bars. This includes influencing rule making and speaking out on issues involving lawyer regulation and professionalism. NOBC is also deeply involved in the evolving area of regulating the bar as lawyers’ practices cross international boundaries. The Board of Directors is comprised of the organization's officers and two At-Large Directors, and is elected by the NOBC members present at the annual meeting.

“We are completing our first 50 years of serving those who regulate the practice of law,” Mr. Burgoyne said. “It’s my hope to ensure that NOBC continues to fulfill its mission to assist all of our members to obtain the resources they need to do their important work. This obviously includes the educational and communication tools necessary to continue to lead the profession through the immense change we experience every day.”

“As our Mission Statement says, NOBC exists ‘to foster interstate, state-federal, and international communication and cooperation in matters involving the regulation of legal professionals.’ Assisting each of our member-jurisdictions across the globe will be an important goal for my year as president. I want to spend every possible moment being responsive to the needs of every NOBC member,” he added.

For more than 33 years, Mr. Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993. Overseen by the Disciplinary Board of the Supreme Court of Pennsylvania, ODC investigates complaints against attorneys, and when appropriate, prosecutes. In his role, Mr. Burgoyne is also responsible for providing educational programs for attorneys and consumers.

“The membership of National Organization of Bar Counsel comprises talented professionals, dedicated to ‘promoting professionalism and protecting the public.’ So it is an indescribable honor to be chosen by them to serve as NOBC’s 52nd President.”

Prior to his position as Deputy Chief, Mr. Burgoyne was staff counsel in the Philadelphia office beginning in 1981, and later served as Counsel-in-Charge of the Philadelphia office from 1987 to 1993. He spent five years in private practice limited to criminal law, and three years at Legal Aid of Chester County in West Chester, Pa. Those positions provided experience trying cases in both state and federal courts.

In addition to serving the NOBC, Mr. Burgoyne has conducted seminars and participated in panels for organizations such as the Association of Professional Responsibility Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia, Conference of County Bar Leaders and the National Association of Legal Secretaries.

Mr. Burgoyne received his Bachelor of Arts in Political Science from La Salle University in 1970, and recently completed his term as Immediate Past President of the La Salle University Alumni Association Board of Directors and Chair of the Council of Past Presidents. He earned his Juris Doctorate degree from Rutgers University Law School in Camden, N.J., in 1973.

Congrats to Paul. I'm confident that the NOBC will flourish under his leadership. (Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Error To Allow Deposition Of Counsel

The South Dakota Supreme Court held that a trial court had violated the attorney-client privilege by allowing the deposition of a party's attorney and admitting his admissions at trial.

This case arose out of a foreclosure action brought by Voorhees Cattle Co. (Voorhees) against Dakota Feeding Co. (DFC). In its answer to the complaint, DFC filed a third party complaint against B and B Equipment, Inc. (B & B) for breach of contract; B & B counterclaimed alleging impossibility of performance and breach of contract by DFC...

As a result of the fraud allegations, counsel for Voorhees, Thomas M. Maher, sought to depose DFC’s counsel William Van Camp and subpoenaed his records concerning his representation of DFC. Van Camp moved to quash the subpoena and enter a protective order.

Below

The court held a hearing on the motion on October 2, 2013. Van Camp argued that there was no applicable fraud exception to the attorney-client privilege and that he was acting as “an ordinary attorney” by performing due diligence on the transaction. Further, he stated that there is no statute or case law in South Dakota that allows an attorney to be deposed in ongoing litigation because of a fraud complaint such as this. Van Camp explained he was resisting the motion, in part because “they can conduct the discovery they want from my client, the discovery they want from DENR to see what information is there.” 

The deposition was taken and admissions from that deposition was admitted.

The court found that this was error

Even if the court found that the communications may not have been privileged or that waiver was an issue, it should have considered whether deposing opposing counsel was the appropriate means of acquiring the information sought. The court failed to consider the implications of allowing discovery without bounds by the extraordinary means of requesting admissions from opposing counsel regarding client communications, deposing opposing counsel, and issuing a subpoena for the production of materials from counsel’s case files. “Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).

Opposing counsel “is [not] absolutely immune from being deposed.” Id. However, the circumstances under which opposing counsel may be deposed “should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (citation omitted). In this case, none of these considerations were taken into account. The court did not analyze the necessity for the discovery or consider reasonable alternative sources such as DFC’s principals or other witnesses such as the DENR employees that may have spoken with DFC’s attorney.

The judgment was nonetheless affirmed

Even though the privileged communications should not have been introduced, nor the deposition of the attorney and further discovery of attorney client privileged material allowed, those communications were germane to the claim by Voorhees, which is not being appealed because DFC satisfied the judgment against it. The communications did not prove, nor go to the heart of B & B’s claims...

The only issue between B & B and DFC decided by the jury was the amount of money owed B & B for the work done on the feedlot. As a result, the erroneous admission of the privileged communications was not unfairly prejudicial to DFC as against B & B. DFC’s claim that the error tainted the trial is not sufficient.

(Mike Frisch)

 

August 3, 2015 in Hot Topics, Privilege | Permalink | Comments (0)

Sunday, August 2, 2015

Zane Maxim On Facebook

The Maine Supreme Judicial Court imposed a one-year suspension with actual service of one-month for an attorney's domestic violence and violation of court orders.

The attorney was admitted in 1994 and has no prior discipline.

He was reported by an Assistant District Attorney

By his filing of December 11, 2013, Assistant District Attorney (ADA) Andrew Matulis formally complained to Bar Counsel that Attorney Cohen had been charged by criminal complaint in the Wiscasset District Court with having committed Domestic Violence Assault (Class D) upon a family or household member (his now-former spouse), Beth Cohen, on November 15, 2013.

He pleaded guilty to charges other than domestic violence and sentence was deferred but the conduct persisted

A contested testimonial hearing was held on October 3, 2014 before Justice Roland Cole on the State’s Motion to Terminate Deferment and Impose Sentence. By a preponderance of the evidence, Justice Cole found that Attorney Cohen had committed new criminal conduct, Domestic Violence Assault, in violation of the conditions of deferment, and continued the matter to October 15, 2014 for sentencing.

A short jail sentenced was imposed.

On the violation of court orders

Between November 19, 2013 and December 4, 2013, Attorney Cohen violated the conditions of his release on multiple occasions, by having direct, and/or indirect, contact with Beth Cohen. Over the period of approximately two weeks, Attorney Cohen sent, or exchanged, approximately 100 text messages with Beth Cohen in direct violation of his court-ordered bail conditions...

 Between March 28, 2014 and July 11, 2014, on numerous occasions, Attorney Cohen violated the specific conditions of those amended bail bonds by having direct and indirect contact with Beth Cohen, including: telephonic communication; electronic text messaging; email communication; and direct “face to face” contact. 

During the time period between March 28, 2014 and July 11, 2014, Attorney Cohen used an alias, “Zane Maxim,” on a “Facebook” account created by Beth Cohen under that alias, so that he could communicate more easily with Beth Cohen through the “Facebook” messaging system.

Through his conversations with Beth Cohen, Attorney Cohen was aware that she had decided to use the money she received from the separation agreement to move out of the country and purchase a residence in Costa Rica. Attorney Cohen informed Beth Cohen that he opposed this decision.

After Beth Cohen left the United States for Costa Rica, Attorney Cohen and Beth Cohen continued to have mutual contact by telephone, email, and other electronic means.

After Beth Cohen left the United States, and at her request, Attorney Cohen assisted Beth Cohen with personal and property issues that arose as the result of her move to Costa Rica.

On two occasions between March 28, 2014 and July 11, 2014, Attorney Cohen left the United States and visited with Beth Cohen at her new residence in Costa Rica at her request.

On one occasion between March 28, 2014 and July 11, 2014, Attorney Cohen purchased airline tickets for Beth Cohen and her daughter to travel from Costa Rica to the United States at her request, and he had personal contact with Beth Cohen when she returned to the United States.

After he pleaded guilty to release violations

Late in the evening of July 12th [2014] , or during the early morning hours of July 13th, Attorney Cohen got into a physical altercation with Beth Cohen, resulting in allegations of new criminal conduct, specifically Domestic Violence Assault, Obstructing Report of a Crime and Violation of Condition of Release.

As a result of Attorney Cohen’s alleged assault on Beth Cohen, the State moved to terminate Attorney Cohen’s deferred disposition, and to have sentence imposed on the underlying criminal charges.

 The State’s Motion for Termination of the Deferred Disposition was heard before Justice Cole on October 3, 2014. At that hearing, Justice Cole found by a preponderance of the evidence that Attorney Cohen had committed new criminal conduct, Domestic Violence Assault, in violation of his deferred disposition agreement.

On October 15, 2014, Justice Cole sentenced Attorney Cohen to 30 days of incarceration on the Violation of Condition of Release conviction, with a $1,000.00 fine, and 28 days of incarceration on the Disorderly Conduct conviction, with an additional $1,000.00 fine. 

The court found that the attorney violations Rules 3.4(c) and 8.4(b).

The Bangor Daily News reported on the disciplinary case and called him a "well known" attorney who had handled high-profile murder cases.

According to a report by Detective Robert M. McFetridge of the Lincoln County Sheriff’s Office, the victim, the victim’s sister and the victim’s 11-year-old niece told him that Cohen assaulted the victim the night of July 12.

At one point, McFetridge wrote, he was told that during the fight, the victim called 911 from Cohen’s phone, but he hung up when it was answered and then shut it off when the emergency dispatcher called back. Phone records confirmed the calls, McFetridge wrote.

The victim’s sister told McFetridge that the victim told her that Cohen “had tried to pry [the victim’s] mouth open and place his fist in [the victim’s] mouth. … [The sister] expressed her frustration that Mr. Cohen seemed to be able to violate the law and not be held accountable,” according to the detective’s report.

The sister said Cohen had traveled outside the country twice to the victim’s home, in violation of bail conditions, to see the victim, and that on the second visit, he “broke all of the doors in her house and assaulted [the victim] with a frying pan.”

Cohen’s attorney, Walter McKee, said Wednesday that his client “denies each and every one of the allegations.”

Asked if Cohen denies going to the Jefferson camp the night of July 12, McKee said he could not discuss specific details of the case...

The case has proved complicated for the state to prosecute because Cohen, who practices at Cohen & Cohen in Waldoboro and has represented several high-profile clients such as convicted murderers Todd Gilday and Guy E. Hunnewell, is well-known to district attorneys and judges throughout the state.

Lincoln County District Attorney Geoffrey Rushlau told the BDN that he recognized when Cohen was first arrested that the case would present a conflict of interest for his office.

The Maine attorney general typically tries cases if a conflict of interest exists, according to Rushlau, but that was impossible because Cohen has represented several high-profile homicide suspects in cases prosecuted by the state attorney general’s staff.

As a result, although the initial assault took place in Waldoboro, in Lincoln County, Cohen’s case has been prosecuted in Kennebec County by Matulis, an assistant district attorney in Androscoggin County, and heard by Cole, who presides in Cumberland County.

 (Mike Frisch)

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

Death Of First Wife No Mitigating Factor

Justice Spina of the Massachusetts Supreme Judicial Court denied reinstatement to an attorney who had stipulated to serious misconduct in handling client funds and accepted an indefinite suspension.

Part of the problem was his effort to deny misconduct despite the prior stipulation, as set forth in the Hearing Panel Report (appended to the justice's order)

Having reviewed the stipulation, we are struck by the petitioner's reluctance to acknowledge unequivocally the facts and implications of the serious misconduct to which he stipulated. In this context we note that to gain reinstatement, we do not require a petitioner to "proclaim his repentance and affirm his adjudicated guilt." Matter of Hiss, 368 Mass. at 455, 1 Mass. Att'y Disc. R. at 129. However, having stipulated to the truth ofthe allegations and having admitted disciplinary violations, a petitioner cannot later come before us and try to distance himself from his earlier admissions. Without the petitioner's unequivocal acceptance of responsibility, we cannot find reform.

Perhaps even worse than his attempt to relitigate settled matters, the petitioner blames Attorney Duggan and the client (Mesheau) and attorney who reported him (Brodeur-MeGan) to bar counsel. Ex. 1 (BC-0019-0021; 0022-0027). He claims as well that bar counsel refused to modify the petition, and that bar counsel would have sought disbarment had the petitioner not signed the stipulation.

Nor did late-blooming mitigation claims help

By signing the stipulation, the petitioner made the strategic decision to give up the right to offer facts in mitigation. Ex. 3, ~ 4 (BC-0096). We recognize that the petitioner has suffered terrible personal loss. His son died of a brain tumor in 1993 at the age of four. See Ex. 1 (BC-00 16-00 17). He also described to us the cancer diagnosis in 1985 and eventual death of his wife, Cassandra. Ex. 1 (BC-0016); Tr. 14 (Petitioner). However, he neglected to disclose, until prodded by bar counsel, that she was his first wife, that she had remarried, and that at the time of her death twenty-four years later in 2009, his third marriage was imminent. Tr. 101, 103, 104-105 (Petitioner). His father's death, also cited in mitigation, occurred in 1990 or 1991. Tr. 107-108 (Petitioner). While we in no way wish to appear unsympathetic to what were admittedly tragic events, their relevance was waived by the stipulation. Further, we question their applicability at this juncture, particularly without any attempt to tie them temporally or causally to the 2002-2004 misconduct at issue. For instance we note that in 1997, the petitioner apparently went on to have his greatest success as an attorney, enjoying a highly favorable and well-publicized outcome in a personal injury case. Ex. 1 (BC-0071).

He failed to demonstrate his present competence to practice law

Having reviewed the evidence, we conclude that the petitioner does not currently possess the necessary competence and learning in the law sufficient for reinstatement. We recognize the weight of the petitioner's twenty-year pre-suspension practice. But we are not convinced that he has remained sufficiently current. We have heard no evidence that the petitioner has studied trust accounting, or the IOLTA rules, or that he has reviewed the rules of professional conduct since 2010. This paralegal work for the Florida firm ceased in 2008, over six years ago. We do not agree that knowledge of Florida law, assuming without deciding that such has been proven, is equivalent to knowledge of Massachusetts law. While the petitioner has claimed that there is much overlap, noting that "[i]t' s not like we're talking about Chinese law here" (Tr. 114 / (Petitioner)), we respectfully disagree. And even if we agreed that a solid grasp of Florida law was sufficient for the learning in the law criterion, we cannot make such a finding on the evidence we have received.

(Mike Frisch)

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

Saturday, August 1, 2015

Suspension Proposed For Disenchanted Attorney

The Illinois Review Board has recommended a six-month suspension

Eva and Andrew Janas consulted with Respondent on October 21, 2010 because Andrew was experiencing business difficulties. They discussed the possibility of obtaining a divorce allegedly so that Eva could maintain possession of a condominium in Florida and Andrew could file for bankruptcy, but Eva did not understand the discussion to be approval to proceed with that action. At no time did Respondent advise Eva to seek independent counsel.

The Administrator alleged that following this meeting, Respondent prepared, on behalf of Andrew, documents to proceed with the divorce, including a marital settlement agreement. Respondent initially claimed, including in his Answer to the Administrator's Complaint, that he gave a draft marital settlement agreement to Eva at the October 21, 2010 meeting and that she signed it in his presence. When called as an adverse witness during the Administrator's case at the disciplinary hearing, Respondent again asserted that Eva signed the marital settlement agreement at this meeting. However, after the Administrator prepared to call a forensic expert to testify that an examination of Respondent's computer revealed that he had not prepared the marital settlement agreement as of October 21, 2010, Respondent finally conceded that he had not drafted the martial settlement agreement as of October 21, 2010.

After the meeting on October 21, 2010, Eva went to Florida. She did not meet with or speak to Respondent again. On November 1, 2010, unbeknownst to Eva, Respondent filed a petition for dissolution of marriage on behalf of Andrew Janas. Respondent filed a pro se appearance for Eva. Respondent then drafted a marital settlement agreement. He testified he gave the marital settlement agreement to Andrew and asked Andrew to have Eva sign it. Sometime thereafter, he testified that Andrew returned a signed agreement to Respondent. Respondent notarized the marital settlement agreement without witnessing Eva's signature to the agreement, in violation of the provisions of the Illinois Notary Act, and without talking to her to confirm that she had signed it. He proceeded to file the notarized marital settlement agreement with the court in the dissolution matter and obtained a judgment of dissolution. He did not give notice to Eva of the prove-up date and he did not advise her of the entry of the judgment of dissolution.

The Hearing Board found that Respondent engaged in criminal conduct by violating provisions of the Illinois Notary Act in violation of Rule 8.4(b). The Hearing Board also found Respondent engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(c) by intentionally violating the Notary Act and by deliberately failing to notify Eva of the filing of the dissolution matter, the prove-up date, or the entry of the judgment of dissolution.

Then

On January 10, 2011, Respondent appeared before Judge Kathleen Kennedy for the prove-up in the Janas dissolution matter. Judge Kennedy asked Respondent if Eva had been notified of the hearing. Respondent responded, "Absolutely". He then falsely said that he had talked to Eva the previous week and falsely stated that Eva had signed the marital settlement agreement in his office earlier in the month.

As set out in greater detail in the Hearing Board's Report, Respondent called Andrew as a witness during the prove-up hearing and elicited testimony Respondent knew was false about Eva's purported execution of the marital settlement agreement in Respondent's office and about the receipt of rent for the condominium in Florida. The court entered a judgment for dissolution based on Andrew's testimony. Eva did not learn of the dissolution matter until May or June of 2011. She hired a lawyer, who ultimately vacated the judgment of dissolution.

Sanction

we conclude that a six month suspension is warranted because of the lack of mitigation and because of the presence of aggravating factors. Respondent presented little meaningful mitigation. He called one character witness, an employer from a local newspaper, but he presented no evidence of charitable or pro bono work. He expressed little to no remorse for his misconduct. In fact, Respondent continued to deny at hearing that his conduct had harmed anyone. Instead, he expressed his growing disenchantment with the practice of law, leaving the impression that he has failed to give serious thought to the duties incumbent with the privilege of being a member of the legal profession.

Respondent's conduct is also aggravated by his prior misconduct...

(Mike Frisch)

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

Thursday, July 30, 2015

Death Must Be Caused Willfully To Invoke Slayer Statute

The Mississippi Supreme Court has held that a person found not incompetent to stand trial on charges that he had murdered his mother is not necessarily precluded from recovery by the Slayer Statute.

Based upon this Court’s holding that the Slayer Statute requires a finding of willful conduct in order to preclude a person from inheriting from his or her victim, this judgment is reversed and the case is remanded for a hearing to determine John’s mental status at the time of the murder and whether he wilfully caused Joan’s death. The Slayer Statute will be applicable only if it is proven that, at the time of the murder, John’s actions were willful. The chancellor is instructed that “ all evidence which will throw any light on the issue of whether or not this killing was willful is competent and admissible.” Henry, 50 So. 2d at 923.

The facts

John R. Armstrong, a severely mentally ill man, killed Joan Armstrong, his eighty-year-old mother. This fact is not disputed by any party. The Circuit Court of Jackson County determined that John was not competent to stand trial for the murder of Joan, and John was committed to the state hospital at Whitfield, where he resides today. Based on the Slayer Statute, John’s four siblings requested that the devise to John in their mother’s will be declared void.

...On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989.1 Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.

He is being held pending a finding that he is competent to be tried. (Mike Frisch)

July 30, 2015 in Law & Society | Permalink | Comments (0)

Sanction For Accusations Of Judicial Misconduct

The Louisiana Attorney Disciplinary Board has recommended a suspension of a year and a day with six months stayed and probation of an attorney who, among other things, accused a judge of misconduct

This case highlights the unfavorable consequences of the legal profession - incompetence and/or corruption of its members. …

The corruption and/or incompetence of attorneys and judges in this case is not only a systemic problem; it is an opportunity for reparation for Stanford McNabb and everyone who was victimized by a system designed to protect their rights. …

Although the lower court [the Third Circuit Court of Appeal], which affirmed the egregious actions of the trial court [Judge Keaty's Division] is the same court Judge Keaty is actively campaigning to sit upon, Stan [McNabb] did not presume wrong doing. ….

The lower court wants to cover up the egregious actions of the trial court so it cannot be used in the current election.

The board found the allegations were frivolous and caused delay

The Board adopts the Committee’s finding that Respondent’s sweeping and repeated accusations in her writ that the judiciary is incompetent and/or corrupt is unsupported by the facts, and is in violation of Rule 3.1.

...her numerous unfounded motions to recuse Judge Keaty from Respondent’s cases in family court, as well as the repeated appeals she filed in Ms. Guillory’s bankruptcy case, resulted in undue delay of multiple matters, in violation of Rule 3.5(d).

Further, the accusations violated Rule 8.2.

On sanction

The facts of the case at bar are unique, and there is no case directly on point. However, the cases above which include similar types of misconduct exhibit a range of suspension from six months with a portion deferred, to three years with eighteen months deferred.

...The Board is particularly disturbed by Respondent’s repeated accusations of corruption and incompetence levied at the judiciary in the writ application filed with the Louisiana Supreme Court in the McNabb matter. In challenging the lower court’s rulings, Respondent repeatedly wrote that Judge Keaty and the Third Circuit panel that heard Mr. McNabb’s appeal were “incompetent and/or corrupt.” She then took the opportunity to circulate a copy of the writ application via email to her friends and colleagues in the Lafayette Bar. During the hearing in this matter Respondent said that she and Mr. McNabb wrote the writ application together, “but the offense…the language that the judges find offensive was his. He wanted that included – that strong language included - because he felt that injury very deeply, and he wanted to be very strong in how he felt.” See Hearing Transcript, p. 255. During her sworn statement she stated, “They [the words in the writ] were not my own. They were my client’s words.” See Respondent’s 7/21/10 Sworn Statement, p. 81. It is clear however, that Respondent signed and filed the writ application and is therefore responsible for the language and accusations contained therein. Every licensed attorney’s professional obligations include the obligation to adhere to the legal profession’s professional and ethical rules, regardless of the demands placed upon them by their clients.

Two dissents would impose the full year and a day suspension. (Mike Frisch)

July 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Counsel Who Missed Portions Of Trial Not Constitutionally Ineffective

A divided United States Court of Appeals for the District of Columbia Circuit affirmed a conviction in a criminal case where lead defense counsel took ill mid-trial and was replaced by secondary counsel who had not attended all the proceedings.

Circuit Judge Brown for the majority

Despite being acquitted on a number of serious offenses—including counts of aiding and abetting murder, assault with intent to murder, and RICO and narcotics conspiracy—Wilson asserts Proctor’s representation fell below the minimum threshold of professional competence required by the Sixth Amendment...

Mid-trial substitution may prove disruptive. Even following a continuance, a substitute defense counsel will sometimes be disadvantaged by his absence from earlier proceedings. Indeed, best practice may favor allowing for a severance or mistrial where the prolonged illness or absence of a defense counsel would require substitution. But “best practice” is not the standard for constitutional deficiency. Nor does every disadvantage to the defense’s representation, however meagre, suffice to “infect[] [an] entire trial with error of constitutional dimensions.”

As to the majority's view of the dissent

Imaginative theorizing added to rampant conjecture augmented by inapposite examples does not a convincing case for Cronic’s categorical rule make. Prudence counsels only greater caution when called on to find constitutional inadequacy as a per se matter, particularly where the state of the record requires speculation as to deficiencies that may or may not have existed. In this case, even the particular days Proctor missed prior to the substitution is not beyond contention. See generally Government’s Brief at 25 & n.10, United States v. Bell, No. 08-3037 (June 30, 2014) (noting that Proctor’s estimate that he missed one-third of the trial was neither expressly endorsed by the court nor confirmed below).

If any break in the continuity of counsel at trial were sufficient to create a presumption of prejudice, even where a different attorney for the accused was present at critical stages missed by the substitute lead counsel, the Sixth Amendment’s guarantee would resemble less the assurance of “effective” representation and instead demand something closer to a “perfect” defense. While perfection may seem a laudable goal, this latter threshold of performance is not demanded by our Constitution.

The court also rejected asserted Brady violations.

Circuit Judge Wilkins would reverse

Because of his administrative duties in this case, as well as his work on his other cases, [secondary counsel] Proctor was not present in court for about a third of trial before Wicks’s illness. Proctor missed the testimony of several witnesses who were critical to the prosecution’s case against Wilson, including Torran Scott and Renee Cottingham, two of the four witnesses who inculpated Wilson in the murders of Sabrina Bradley and Ronnie Middleton. See Trial Tr. at 11, United States v. Ball, No. 05-cr-100 (D.D.C. June 27, 2007), ECF No. 1040. Proctor was not in the courtroom to watch Scott tell the jury that Wilson had admitted involvement in the shooting, and that Wilson asked Scott to corroborate his alibi. Nor did Proctor see Scott admit on cross examination that he failed to inculpate Wilson until four years after the murders and two days before pleading guilty as part of a deal with the government. Proctor was not present when Cottingham told the jury that Wilson confessed to her that he had committed the murders while she unbraided his hair one evening. Proctor did not see Wicks cross-examine Cottingham on her belief that Wilson was involved in her brother’s homicide, giving her strong incentive to implicate him in Middleton and Bradley’s murders. Scott and Cottingham’s testimony, along with the testimony of two co-conspirators who testified in exchange for government leniency, was the only evidence the government presented to connect Wilson with those murders...

When Wicks left Wilson’s side, her accumulated knowledge of the case left with her. In particular, Wilson lost: (1) Wicks’s tactical and strategic consultations with Wilson about the trial, (2) Wicks’s appraisal of witness demeanor, and (3) Wicks’s assessment of the jury’s reaction to the witness testimony and physical evidence introduced at trial. In denying Wilson a mistrial and forcing him to continue to verdict with the assistance of a lawyer who had missed so much and who would not have this accumulated knowledge, the District Court deprived Wilson of his right to an attorney with the knowledge necessary to challenge adequately the government’s evidence.

Circuit Judge Henderson joined the majority. (Mike Frisch)

July 30, 2015 | Permalink | Comments (0)

Task Delegated But Not Liability

The South Carolina Supreme Court reversed and remanded a case where the Court of Appeals had held that a legal malpractice defendant could not be liable for a task delegated to a title company

In this attorney malpractice case, Amber Johnson alleges her closing attorney, Stanley Alexander, breached his duty of care by failing to discover the house Johnson purchased had been sold at a tax sale the previous year. The trial court granted partial summary judgment in favor of Johnson as to Alexander's liability. On appeal, the court of appeals held Alexander could not be held liable as a matter of law simply because the attorney he hired to perform the title work may have been negligent. Instead, the court determined the relevant inquiry was "whether Alexander acted with reasonable care in relying on [another attorney's] title search"; accordingly, it reversed and remanded. Johnson v. Alexander, 408 S.C. 58, 64, 757 S.E.2d 553, 556 (Ct. App. 2014). We disagree and find the trial court properly granted summary judgment as to liability. We therefore remand to the trial court for a hearing on damages.

The court

In determining the scope of Alexander's duty, we accept his consistent characterization of this responsibility—ensuring Johnson received good title. In her complaint, Johnson alleged "[d]efendants had professional duties to ensure that Plaintiff was receiving good and clear title to the subject property free of any encumbrances, liens, or clouds on title before conducting the closing and if there was a problem after the closing, to correct said deficiencies and/or advise Plaintiff how to correct said deficiencies." In Alexander's answer he admitted those allegations...

However, even absent Alexander's admissions, we find the court of appeals erroneously equated delegation of a task with delegation of liability. Certainly  Feeley's negligence is the issue here, but that does not displace Alexander's ultimate responsibility. While an attorney may delegate certain tasks to other attorneys or staff, it does not follow that the attorney's professional decision to do so can change his liability to his client absent that client's clear, counseled consent. See Rule 1.8(h), RPC, RULE 407, SCACR ("A lawyer shall not. . . make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement."). Thus, Alexander owed Johnson a duty and absent her agreement otherwise, he was liable for that responsibility regardless of how he chose to have it carried out.

We therefore agree with Johnson that an attorney is liable for negligence in tasks he delegates absent some express limitation of his representation. Stated another way, without an express limitation in representation, attorneys cannot delegate liability for tasks that are undertaken in carrying out the duty owed the client.

(Mike Frisch)

July 30, 2015 in Clients | Permalink | Comments (0)

Wednesday, July 29, 2015

Unwelcome Contacts Lead To Second Disbarment

Misconduct of a sexual nature resulted in an attorney's disbarment in North Dakota. 

North Dakota had rejected his effort to avoid disbarment by being placed on disability status

Overboe attached a copy of a decision from the Department of Veterans Affairs placing him on disability status with his request to be transferred to disability inactive status. The Veterans Affairs decision concluded Overboe has post-traumatic stress disorder, resulting from his combat experience in Vietnam. The decision stated an examination conducted in October 2010 showed Overboe's diagnosed psychiatric illness results in social and occupational impairments due to symptoms of nightmares, mood blunting, depression, suicidal ideation, sleep impairment, avoidant behaviors, intrusive thoughts, diminished concentration, memory impairment, a loss of interest in pleasurable activities, emotional numbing, hypervigilance, an exaggerated startle response, inappropriate violently verbal outbursts, crying spells, social withdrawal and isolation, periods of emotional distress, hyperarrousal, a lack of any close friends, and a near complete inability to make new social relationships due to adjustment problems. The decision also stated Overboe was competent to handle the distribution of his Veterans Affairs' funds.

...Although the evidence Overboe presented may have established that his mental condition adversely affects his ability to practice law, it did not establish he is unable to assist in his defense due to mental incapacity.

The same sanction was ordered as reciprocal discipline by the Minnesota Supreme Court.

Specifically, the [North Dakota] court concluded there was clear and convincing evidence that Overboe had unwelcome sexual contact with multiple clients, including groping and exposing himself to them, and had offered to reduce his legal fees in exchange for sexual favors. Id. at 857-58. The evidence presented established that Overboe entered an Alford plea and was convicted of one count of misdemeanor disorderly conduct for sexual conduct that occurred in February 2006 involving a client. Id. at 857. Overboe also pleaded guilty to two counts of disorderly conduct for sexual conduct that occurred in October 2006 involving another client. Id. at 858. Evidence was also presented regarding unwelcome sexual incidents involving four additional clients, which occurred on various dates between 1995 and 1999. Id. Overboe’s actions violated the rules regarding conflicts of interest and criminal acts by an attorney, and the rule prohibiting sexual relations with a client. Id. at 859.

The court also concluded there was clear and convincing evidence that Overboe prepared a durable power of attorney for D.G., who was then 92 years of age. Id. The power of attorney was signed by D.G. and named Overboe’s wife, Debra, as D.G.’s attorney-in-fact. Id. Debra and Overboe then went to a bank, and Debra used the power of attorney to transfer $190,000 from D.G.’s financial accounts into a certificate of deposit payable to D.G. or to Debra, or alternatively to D.G. and upon his death to Debra.3 Id. Additionally, Debra used the power of attorney and acted as attorney-in-fact to convey to herself 640 acres of real estate owned by D.G. Id. Overboe drafted the quit claim deed used in the transaction. Id. Both the transfer of $190,000 from D.G.’s financial accounts and the conveyance of D.G.’s real estate were done without consideration and without D.G.’s knowledge or consent. Id. at 860. The court concluded Overboe’s actions violated the rules regarding conflicts of interest and the rules prohibiting dishonesty, fraud, deceit, or misrepresentation.4 Id. at 861.

Finally, the court concluded there was clear and convincing evidence that Overboe practiced law in North Dakota during the time that his license was suspended.

Sanction

Overboe engaged in extensive sexual misconduct. The North Dakota Supreme Court found that Overboe engaged in unwelcome sexual conduct with four clients by inappropriately touching them or exposing himself to them and that he made inappropriate sexual comments to three clients, including requesting sexual favors in exchange for reduced legal fees. Overboe was criminally convicted for some of this conduct. This misconduct warrants severe discipline. 

...We consider Overboe’s misconduct as a whole.

And disbar him.

The North Dakota decision detailed the sexual misconduct

On or about October 14, 2006, Overboe had sexual contact with a client, [A.R.], in that Overboe touched her buttocks on the way to his office, and at his office rubbed his groin against her body and grabbed her buttocks...

On or about October 23, 2006, Overboe offered to hire [A.R.] with the intention of engaging in sexual activity, in his office, through the offer of exchanging sexual favors for a reduction in legal fees...

In approximately 1997 or 1998, Overboe represented [W.M.]. She had been referred to Overboe through a legal services program. During a meeting at his office, Overboe made remarks to [W.M.] questioning whether she was breast feeding, and other remarks that made [W.M.] uncomfortable. [W.M.] testified that Overboe had a fridge, and a couch or bed, in his office.

In approximately 1999, [M.R.] was referred to Overboe by Legal Assistance of North Dakota. He met with her after regular business hours. Overboe had chilled wine, which he was drinking, and which he offered to [M.R.]. Overboe told her of his personal life and personal problems he was having. He told her how much she would have to pay if the matter had not been referred by Legal Aid. Overboe's comments made [M.R.] fearful of being alone with Overboe.

In approximately 1995 and 1996, Overboe represented the employer of [M.B.]. On one occasion, [M.B.] took papers for her employer to Overboe at his office. While [M.B.] was at his office, Overboe walked around his desk, unzipped his pants, and exposed himself. [M.B.] was appalled by Overboe's conduct.

The North Dakota court rejected the attorney's claim of a due process violation based on the bar's six year delay in bringing charges. 

Interestingly, he had been reciprocally suspended in North Dakota based on a Minnesota sanction. (Mike Frisch)

July 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

"Racist, Sexist, Homophobic, Offensive Epithets" Gets A Three-Month Suspension

A three-month suspension (triple the sanction proposed by a hearing panel) was imposed by the New York Appellate Division for the First Judicial Department.

Respondent was charged with having made patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys, in violation of rule 8.4(h) of the Rules of Professional Conduct (Rules); insulting an administrative law judge in a public forum, and being disruptive inside of and/or in the vicinity of hearing rooms, in violation of rule 3.3(f)(2); and improperly importuning court clerks to recalendar cases even when told it could not be done, in violation of rule 8.4(b) and (d). The evidence cited by the Referee and confirmed by the Hearing Panel as upholding these charges included testimony of three TVB Administrative Law Judges: one who received complaints of disruptive or explosive conduct on respondent's part over the years and personally witnessed such behavior on several occasions; one who was called "a disgrace" by respondent in an open hearing room during or after a contentious hearing; and one who, after reprimanding respondent for talking in the courtroom, experienced him as irate, rude, loud, and combative. In addition, three attorneys who practiced traffic law at the Manhattan North TVB testified that respondent had for years cursed and made obscene, racist comments, and uttered profanities about ethnicity and homosexuality within the public areas of the TVB; he had also threatened one of the attorneys on more than one occasion...

The Hearing Panel disaffirmed the Referee's recommendation of a "public sanction," which it understood to be a recommendation of a public censure. It noted the regularity over the years of respondent's public remarks to other attorneys that were profane, racist, sexist, homophobic, obscene or threatening, his disrespect to and for the two Administrative Law Judges, and that he was also found to have improperly importuned TVB clerks to engage in acts that he was told could not be done. The Hearing Panel recommended a one-month suspension. The DDC seeks an order confirming the Hearing Panel's findings of fact and conclusions of law, and argues for a just and appropriate sanction.

The court on sanction

Even assuming, as the Referee found, that it is true that inappropriate language by attorneys is commonplace at the TVB, we fail to see how this constitutes mitigation or otherwise excuses respondent's ongoing and public inappropriate behavior. Respondent has shown inexcusable disrespect in open court to two Administrative Law Judges. He has spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse. The "policy underlying the rules governing professional responsibility [ ] seeks to establish a  minimum level of conduct below which no lawyer can fall without being subject to disciplinary action'" (In re Holtzman, 78 NY2d 184, 192 [1991] [quoting from Code of Professional Responsibility, Preliminary Statement], cert denied, 502 US 1009 [1991]). Respondent's conduct should not and will not be tolerated. Furthermore, we find it of concern that he attempted to undermine the functioning of the TVB by his repeated requests of the clerks to recalendar cases, even after being informed by more than one clerk that what he was asking would violate TVB policy.

Accordingly, the Committee's motion is granted to the extent of confirming the Hearing Panel's findings of facts and conclusions of law. We disaffirm the Hearing Panel's recommendation of a one-month suspension, and direct that respondent should be suspended for a period of three months, and until further order of this Court, and respondent should continue anger management treatment for a period of one year, monitored by the New York City Bar Association's Lawyer Assistance Program .

July 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Internet Search Catches Practice While Suspended

The benefit of online transparency is apparent from a disbarment order of the New York Appellate Division for the First Judicial Department.

The attorney represented buyers and sellers in real estate transactions. He was suspended for failure to cooperate in a bar investigation.

He ignored the suspension but

On March 17, 2015, the sellers' counsel's firm learned of respondent's suspension by online research precipitated by respondent's failure to deliver bank checks for the balance of the purchase price in accordance with the contract of sale. Upon learning of respondent's suspension, the sellers' counsel's firm consulted with outside ethics counsel and sent respondent a letter in which, among other things, it advised him to cease all representation of the purchasers. The sellers' counsel stated in an affidavit that the buyers have retained new counsel and the parties are presently working toward completing the transaction.

In yet another real estate sale, respondent represented the sellers of a Manhattan apartment; according to an affidavit from the buyers' counsel, respondent represented the sellers at the March 18, 2015 closing, which took place at respondent's office. Respondent accepted a check from the buyer's counsel for $97,231.02 and deposited it into his attorney trust account. The buyers' counsel stated that to the best of his recollection, he became aware of respondent's suspension on March 27, 2015 when the title company for the transaction informed him that escrow checks issued by respondent had not cleared because respondent's escrow account had been frozen; after further investigation, the title company learned that respondent had been suspended.

In addition to the previously discussed real estate transactions, the Committee alleges that, as of April 29, 2015, respondent continued to hold himself out as a licensed New York attorney on an internet web page.

(Mike Frisch)

July 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 28, 2015

Battle Joined In North Carolina Litigation

An answer denying any ethical misconduct has been filed in the second of two cases brought against a North Carolina attorney in connection with her successful efforts to free an innocent man on death row.

The complaint alleges that the attorney sent a false or misleading email to a colleague inquiring about an uncertified transcript provided to a member of the media.

The email at issue was sent on January 26 at 5:01  pm.

Notably, the answer appends the apparently complete email chain at issue. A February 26 email from the accused attorney explains the situation from her point of view.

Our coverage of the other case - the so-called "water bottle" bar charges- is linked here and here. 

The two cases are scheduled for hearing on January 11 -15, 2016. The Panel chair is a former judge who practices in the area of divorce and family law. (Mike Frisch)

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

Failure To Heed Censure For Current Client Conflict Leads To Suspension

A disciplinary case is reported on the web page of the Tennessee courts

The Tennessee Supreme Court has unanimously affirmed a 180-day suspension of Memphis attorney Homer L. Cody’s law license.

In 2011, the Board of Professional Responsibility filed a petition for discipline against Mr. Cody based on a complaint of misconduct.  The petition alleged, among other things, that Mr. Cody failed to cease representation of two parties with conflicting interests.  A hearing panel found that Mr. Cody did, in fact, have a conflict of interest and that his continued representation of both parties was a violation of the Rules of Professional Conduct.  Initially the panel recommended that Mr. Cody be publicly censured for his violation; however, even after the panel’s recommendation, Mr. Cody continued to represent both clients.  As a result of his continued representation, in August 2012, the Board of Professional Responsibility filed a second petition against Mr. Cody, and a hearing panel recommended that he be suspended from the practice of law for a period of 180 days.

Mr. Cody appealed to the Shelby County Circuit Court, which affirmed the hearing panel’s findings and conclusions of law.  Mr. Cody then appealed to the Supreme Court, alleging a number of procedural, jurisdictional, and constitutional errors and claiming that the hearing panel acted arbitrarily in finding that he violated the Rules of Professional Conduct and in imposing a 180-day suspension.

The Supreme Court upheld the decisions of the hearing panel and the Shelby County Circuit Court.  In an opinion authored by Chief Justice Sharon G. Lee, the Court addressed Mr. Cody’s claims, finding each to be without merit.  The Court further found that the hearing panel did not act arbitrarily in finding that Mr. Cody failed to adhere to the duty required of attorneys under the Rules of Professional Conduct.  Based on Mr. Cody’s multiple rule violations, prior disciplinary record, repeated inability to follow court orders, refusal to acknowledge his misconduct, and more than 30 years of experience as a licensed attorney, the Court found that a 180-day suspension from the practice of law was appropriate.

Read the opinion in Homer L. Cody v. Board of Professional Responsibility, authored by Chief Justice Lee.

The two clients were the Pee Wee Wisdom Child Development Center, Inc. (“the Center”) and Vivian Braxton, the Center’s executive director.

The conflict

On November 15, 2004, Mr. Cody began representing two clients with conflicting interests. When Mr. Cody entered his appearance in the Chancery Court action, Ms. Braxton had already pled guilty to theft of property from the Center. Thereafter, the Center’s Receiver was awarded a judgment against Ms. Braxton in an amount in excess of $296,000.

As to the post-censure charges

Mr. Cody filed a Racketeer Influenced and Corrupt Organizations Act (“RICO”) complaint in the federal district court on behalf of the Center and Ms. Braxton. In the RICO complaint, Mr. Cody sued the attorneys and judges who participated in the Chancery Court proceedings involving the Center and Ms. Braxton, characterizing these individuals as “judicial mobsters” who were “operating within the Tennessee judicial system and using the system to steal, embezzle, defraud, and to carry out other illegal activities.”

The court

On March 16, 2012, Mr. Cody was publicly censured for his representation of the Center and Ms. Braxton. At this point, Mr. Cody should have understood that he was ethically prohibited from representing Ms. Braxton and the Center because of their adverse interests. The public censure should have been the end of it. But it was not. Mr. Cody had not learned his lesson. Instead, he forged ahead by filing a motion in the Chancery Court for the two parties, ignoring the orders of the Chancery Court and the Court of Appeals, and the public censure. This precipitated a second petition for discipline. Undaunted, Mr. Cody persevered. He filed a federal court action for the Center and Ms. Braxton against the lawyers and judges involved in the original Chancery Court action, labeling them “judicial mobsters.” Not surprisingly, the Board filed a supplemental petition for discipline against Mr. Cody, which resulted in the Hearing Panel’s decision that Mr. Cody should be suspended for 180 days.

As to the attack on the system

After carefully reviewing the issues raised by Mr. Cody, the entire record, briefs filed by the parties, and all applicable authority, we find that none of Mr. Cody’s arguments have merit. Based on our standard of review, we hold that there was no violation of either constitutional or statutory provisions; the Hearing Panel did not act in excess of its jurisdiction; there was no unlawful procedure; the result reached was not arbitrary, capricious, or characterized by an abuse of discretion; and Mr. Cody’s suspension was fully supported by evidence which is both substantial and material in light of the entire record.

(Mike Frisch)

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