Monday, July 25, 2016

New Jersey A Forgiving Place To Unethical Lawyers

An attorney with a lengthy record of prior discipline has been suspended for three months for a retainer agreement violation.

The attorney was admitted in 1993, suspended three months for false statements to a tribunal in 1999, admonished in 2001 for record keeping violations, admonished in 2004 for possession of marijuana, censured in 2011 for failure to appear at a criminal trial, reprimanded by consent in 2013 for practicing while ineligible, and censured in 2014 for again practicing while ineligible.

From the Disciplinary Review Board report in the fresh misconduct case

The evidence not only clearly and convincingly establishes that respondent failed to provide Reyes with a writing setting forth the basis or rate of his fee, but also that he lied about it to the committee investigator and later testified about it falsely at the DEC hearing. As the DEC aptly pointed out, respondent’s June 24, 2014 letter to Byrnes implied that the document that Cruz actually had prepared was a retainer agreement that he had prepared. However, at the DEC hearing, he testified about a hand-written retainer agreement that he had prepared at the courthouse during his initial meeting with Reyes. Respondent claimed that he had either lost or failed to maintain a copy of this agreement. His testimony simply lacks credibility. Respondent is, therefore, guilty of violating RPC 1.5(5).

We do not agree, however, with the DEC’s conclusion that the evidence did not clearly and convincingly establish respondent’s failure to communicate with Reyes. The complaint alleged that (i) respondent either failed to appear in court or was late on twelve of Reyes’ fourteen appearances and that he failed to communicate to Reyes that he would not appear or would be late; (2) his failure to do so left Reyes "afraid, nervous  and extremely worried;" and (3) although Reyes frequently asked respondent to provide her with the discovery in her matter, he failed to communicate with her about it in any meaningful way.

A record of sanctions like these would get you disbarred in many jurisdictions.

And he lied here.

What is wrong with New Jersey? (Mike Frisch) 

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Law Of Sleeping Jurors

The right to an attentive jury is discussed in this opinion of the New Jersey Supreme Court.

From the headnote

 Defendants have a constitutional right to an impartial and mentally competent tribunal. Jury irregularity, including sleeping, may violate this right if it results in prejudice. There is little New Jersey case law addressing the ramifications of sleeping jurors, but the Appellate Division has held that a court must investigate allegations that a juror has been sleeping. However, the Appellate Division has suggested, and a federal court of appeals has held, that if the judge personally observes that the juror is awake, a voir dire is unnecessary. If, on the other hand, a court finds that the irregularity of a sleeping juror may exist, the next step is to determine whether the juror’s inattention was prejudicial to the defendant and, therefore, capable of producing an unjust result. To that end, the Appellate Division has found that the important question is when the juror was inattentive, asking not just whether inattentiveness occurred, but whether it occurred during a critical portion of the trial. Once a judge determines,  based on his observations and individual voir dire of the juror, that the juror was sleeping, the Appellate Division has instructed that remedial action is required.

...the Court holds going forward that the trial court and counsel have a duty to be certain that a defendant’s trial is heard by an alert and attentive jury. Where the trial judge notices that a juror is inattentive, the judge will have broad discretion to determine the appropriate level of investigation and corrective action required. Where a party alleges that a juror is inattentive, the judge should adequately explain on the record any personal observations regarding the juror’s attentiveness. A finding of attentiveness based on these personal observations generally ends the inquiry and will be reviewed to determine whether the finding is adequately supported in the record. If a judge does not personally observe a juror’s attentiveness, the judge should conduct an individual voir dire of the juror. If, following voir dire, a determination is made that the juror was inattentive during an inconsequential part of the trial, the judge will have broad discretion to determine the appropriate corrective action. A finding that the pertinent portion of the trial was inconsequential will be reviewed for harmful error. On the other hand, if a determination is made that the juror was inattentive during a consequential part of the trial, the judge must take appropriate corrective action, such as replaying a recording or videotape, rereading a portion of the jury charge, or excusing the juror, among other steps.

The court affirmed the conviction. (Mike Frisch)

July 25, 2016 | Permalink | Comments (0)

Ex-Husband Wanted To Help; Attorney Convicted And Suspended

Reciprocal discipline was imposed in Massachusetts as a result of a Connecticut sanction stemming from the attorney's criminal conviction.

On September 2, 2015, the respondent pleaded guilty (pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)) in the Superior Court for the Judicial District of New London, Connecticut, to accessory to burglary in the third degree, a felony, in violation of C.G.S. §§ 53a- 8 and 53a-103. The respondent was sentenced to incarceration for four years, with execution suspended and probation for three years. As a result of her conviction, the respondent was suspended from the practice of law in Connecticut for one year by the Superior Court for the Judicial District of Waterbury, Connecticut, on October 5, 2015.

On February 2, 2016, bar counsel filed a notice of conviction and petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County based upon the Connecticut order of suspension. On February 3, 2016, the parties submitted to the court a waiver in which they agreed to the entry of an order suspending the respondent for one year, retroactive to October 12, 2015, the effective date of the respondent’s Connecticut suspension. The parties further agreed that the respondent’s reinstatement to the Massachusetts bar be conditioned upon her reinstatement in Connecticut. On March 14, 2016, the Court (Hines, J.) so ordered.

The Norwich Bulletin reported on the incident in which she persuaded her ex-husband beat up her just ex-boyfriend, who got a three-year sentence.

Assistant State's Attorney David Smith, who was the prosecuting attorney, said that on June 11, 2014, the day after Doerr-Hicks broke up with her boyfriend, she and her ex-husband, James Hicks, went drinking and decided to drive to the boyfriend's home at about 1 a.m.
During the night, Doerr-Hicks sent the boyfriend numerous threatening texts, Smith said. "She told (Hicks) to commit the assault," he said.
Doerr-Hicks told police she had broken up with her boyfriend because she suspected him of cheating. A drunken Hicks, kicked in the front door of the ex-boyfriend's house and attacked him as he slept.
"I was still in my bed when he jumped me and started punching me in the head and face," the man told police.
Hicks inflicted bloody injuries to the man's face and head, causing him to be treated at Day Kimball Hospital in Putnam, according to police.
"It's sad she (Doerr-Hicks) won't be serving the citizens of the quiet corner," said Doerr-Hicks' defense attorney Mark A. Dubois. "She understands that her actions have consequences," he said.
Doerr-Hicks said she will continue as a paralegal during her suspension.
Doerr-Hicks is a former Bulletin reporter.
(Mike Frisch)

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, July 24, 2016

Judge May Not Fill Out Annulment Questionnaire

A judicial ethics opinion from South Carolina Advisory Committee on Judicial Conduct answers the following question

A family court judge has been requested to fill out a detailed questionnaire, on behalf of a family member, for use in an annulment proceeding within the Catholic Church. The questionnaire seeks information as to the judge’s opinion of the strengths, weaknesses, traits, and honesty of the judge’s relative and the relative’s former spouse. The questionnaire also seeks detailed facts as the courtship, wedding, marriage, and breakdown of the marriage. The response is required to be notarized. The information will be used by the Catholic Church in determining whether the judge’s relative is entitled to an annulment. The judge inquires as to whether it would be proper, under the Code of Judicial Conduct, to complete such a survey.

Answer: No.

The detailed questionnaire here seeks the judge’s opinion, in part, as a character witness regarding the judge’s relative and the relative’s former spouse. In addition, the judge’s completion of the questionnaire could be considered a use of the judge’s position to gain an advantage for his relative’s claim in the annulment proceedings. Thus, it would not be proper for the judge to serve a witness (by completing the questionnaire) to the tribunal.

(Mike Frisch)

July 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, July 23, 2016

Informal Admonition For Switching Sides In Divorce Case

The District of Columbia Office of Disciplinary Counsel has informally admonished an attorney who engaged in a conflict of interest by representing the husband in a divorce case after a consultation with the wife.

You met with W for about three hours at your home to discuss the divorce. W states that you advised her to file for divorce in the District of Columbia, rather than in Maryland. You also provided information to W regarding "safe house and women's shelter information." At the conclusion of the meeting, you informed W that you could not represent her because of your social and business relationship with H.

Approximately one year after her consultations with you, W filed her pro se divorce action in the Superior Court of the District of Columbia, Family Division. Shortly thereafter, you entered your appearance in the matter on behalf of H. About two weeks later, W filed a motion with the court that she entitled, "Notice of a Conflict of Interest." In her motion, she informed the court of her prior consultations with you, and she asked the court to disqualify you from representing H. The court granted W's motion and removed you from the matter.

Disciplinary Counsel rejected the suggestion that there had been no attorney-client relationship with the wife.

When W spoke with you on the telephone and subsequently met with you, she did so for the purpose of seeking legal advice regarding her divorce from H. W states that she disclosed confidential information during the course of the conversations with you, before you advised her that you could not represent her. While you claim you do not remember the confidential information, both you and W agree (i) that you consulted with W, and (ii) that you provided W with advice regarding how and where to file for divorce from H. Based on these facts, we find that there was an attorney-client relationship between you and W.

The case is In re Roquelle Jeri, Bar Docket No, 2015 - D234 and can be found at this link.

The conduct likely violated the rule governing duties to a prospective client even if a full attorney-client was not formed. (Mike Frisch)

July 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 22, 2016

Moonlighting By Disabled Police Officer Not Dishonest

The Illinois Review Board finds that no misconduct was proven and recommends that ethics charges be dismissed in a matter involving an attorney already suspended in an unrelated matter.

This matter arises out of the Administrator's one-count complaint charging Respondent with engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Respondent, a Cook County Sheriff's Office police officer, suffered an injury while on duty. He filed a workers' compensation claim and eventually collected temporary total disability benefits for a period of over two years. While on disability, Respondent continued to work and receive income from two other jobs, as a private-practice attorney and as a McHenry County commissioner. For most of the time at issue, he did not have approval to work these two other jobs, as required by workplace rules. He was eventually terminated from the sheriff's department for working secondary employment without approval and while receiving disability benefits.

Based on this conduct, the Administrator filed its complaint against Respondent. Following a hearing, the Hearing Board found that Respondent had engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability so that he could continue to collect full disability payments while also earning other income. It recommended that Respondent be suspended from law practice for one year.

Both parties appealed. On appeal, the Respondent challenged the Hearing Board's finding that he had engaged in dishonest conduct and asking that the proceedings against him be dismissed. The Administrator agreed with the one-year suspension but asked the Review Board to specify that it should begin at the conclusion of a suspension of three years and until further order that Respondent was currently serving based on a prior disciplinary proceeding.

The Review Board reversed the Hearing Board's finding of misconduct, finding that the Administrator failed to prove that Respondent had engaged in dishonest conduct because he did not show by clear and convincing evidence that Respondent knew his disability benefits would or could be reduced by his secondary employment, or that his benefits, in fact, could have been reduced by his secondary employment. It thus recommended that the case be dismissed.

(Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Silly" Contempt

An attorney's resignation was accepted by the New York Appellate Division for the First Judicial Department.

In September 2015, the Committee brought 20 charges against respondent alleging that he committed professional misconduct by, inter alia, neglecting clients' legal matters, repeatedly threatening criminal prosecution to gain an advantage in a civil case, using a client's resources without permission or authorization, and engaging in conduct that adversely reflects upon his fitness to practice law. In March 2016, the Committee served respondent with a notice of supplemental charges. Those eight additional charges arose out of respondent's purported improprieties in which he allegedly, inter alia, neglected a client matter, made false statements to a tribunal, and asserted frivolous claims in litigation.

During the course of the Committee's investigation, it became aware of two court orders sanctioning respondent. One order was based on his failure to appear in court for oral argument and untimely opposition to a contempt motion in which he stated that the court was "silly" to consider holding him in contempt. Respondent was also sanctioned in another action, after the court determined that respondent made false representations about and engaged in ad hominem attacks against opposing counsel in another client's civil matter. At an examination under oath conducted by the Committee, respondent admitted sending an email to his adversary in which he threatened to dispatch law enforcement agents to act on his behalf and against his adversary's client. Respondent additionally admitted that he defaulted while representing a client in a guardianship proceeding and told a third party that he would expose his extra-martial affair if he did not agree to pay a client's legal fees.

The attorney's affidavit complied with the requirements for resignation. (Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 21, 2016

Judge's Facebook And Web Pages Not Unethical

The Maine Supreme Judicial Court has sanctioned a judge charged with misconduct in

statements he made in a letter to counsel regarding a court proceeding in which he was a party, and based on his judge-related Internet and social media activity.

The letter violated canons of judicial conduct; the social media activity did not.

...because of the seriousness of this violation, we impose a public censure and reprimand, and a thirty-day suspension from the performance of his duties as judge of the York County Probate Court.

The social media issues

Two of the charges filed by the Committee are based on information that Judge Nadeau posted on the Internet—specifically, a website and a Facebook page—in association with his 2012 election campaign. We address those allegations in turn.

After Judge Nadeau was re-elected to judicial office in 2012, a marketing and media consultant retained by Judge Nadeau either created a new website or modified an existing one so that it was entitled, “York County Probate Judge Robert Nadeau.” That website, which showed Judge Nadeau wearing a judicial robe, was his personal website and not an official website of the York County Probate Court. It also provided a link to the website of his private law office. By using that link, a person who viewed Judge Nadeau’s personal judicial website could then move directly to the website for Judge Nadeau’s private law office. In Count 1 of its report, the Committee alleges that Judge Nadeau violated Canon 2(B), see supra n.8, by using the judicial office for personal gain...

As the Hearing Justice found, Judge Nadeau provided the link to the website of his private law office on the judicial website for the purposes of eliminating confusion within the general public and preventing instances where a person who wanted to contact him in his capacity as a lawyer mistakenly contacted the Probate Court. The link did not actually generate any business for Judge Nadeau’s law office. Further, Judge Nadeau promptly removed the link to his private law office as soon as a complaint was made, effectively resolving the Committee’s concerns about the issue. In this matter of first impression, these circumstances weigh against a formal finding of judicial misconduct.

Word to the wise

When a part-time judge, acting in a judicial capacity, establishes a pathway on a judicial website for a user to contact the judge with the prospect of a remunerative benefit to the judge, the judge may create the perception of using the judicial office held in public trust as a means to create a private, commercial advantage. Any such conduct by a judge must be preceded by a careful and sensitive consideration of the requirements of the Canons and the critically important goals they are designed to achieve.

The letter

In 2013, while a judge but in his personal capacity, Judge Nadeau commenced an action in the Maine District Court for protection from harassment against his former girlfriend, who lived in Massachusetts. Judge Nadeau was not represented by counsel in that proceeding, but an attorney represented his former girlfriend. In his complaint for protection from harassment, Judge Nadeau alleged that the former girlfriend improperly disclosed confidential or otherwise private medical and other information about him. While the case was pending, Judge Nadeau wrote a letter to the former girlfriend’s attorney of record, stating,

You know that, putting aside your training and evident desire to simply argue and advocate, you need to advise your client to pull her book and internet advertising immediately, at a minimum, under the circumstances. This is a matter of, at the minimum, clearly protected medical privacy. The consequences of not doing so can be devastating, not only for her and her best friend, but probably even for you, and their former or current [Massachusetts] lawyer. . . . You can posture all you want in the interest of advocacy. But absent immediate, legitimate responsibility and cooperation designed to achieve amicable, nonmonetary resolution of whatever issues your client and I apparently have, I respectfully submit this is going to become very bad for your client, you and your law firm.

A footnote in the letter

I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as “his eminence.” If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.

His comments about the judge did not violate judicial ethics

we conclude that because Judge Nadeau’s disparaging comment about another Maine judge was not public and concerned a case in which he was a litigant, it was not prohibited by the Code. We acknowledge, however, the concerns underlying the Committee’s argument.

The judge had been sanctioned both as an attorney and a judge

this is now the third time that Judge Nadeau has been found to have violated professional ethical standards. In Judge Nadeau’s capacity as a lawyer, a Single Justice of this Court determined that he violated the Maine Bar Rules by making “discourteous and degrading” statements to a judge. Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 (March 2, 2006) (Alexander, J.). The Justice publicly reprimanded Judge Nadeau and ordered him “to conduct himself in the future so as to avoid further occasions of professional misconduct.” Id. Then, in a judicial disciplinary proceeding, we found that Judge Nadeau violated the Code of Judicial Conduct by lying about an electoral opponent during a campaign for judicial office. See In re Nadeau, 2007 ME 21, ¶¶ 2, 18-19, 26, 914 A.2d 714.

The same court issued an opinion in the judge's divorce case that did not shower praise on him

In a detailed and strongly−worded decision, the [lower] court found that Robert had a “self-centered and insensitive world outlook” and had engaged in “self-destructive behavior that has caused the break-up of his marriage, the break-up of his law firm, and a significant amount of litigation.”

...Robert contends that the court’s criticism of him in its findings rises to a sufficient level to constitute bias. The court’s findings that were critical of Robert were based on competent evidence, are not clearly erroneous, and do not establish improper bias. In addition, the record reflects that the trial judge demonstrated evenhandedness and patience with both parties throughout a highly contentious trial process.

(Mike Frisch)

July 21, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Ignoring Court Order Leads To Disbarment

The Utah Supreme Court has affirmed the  disbarment of an attorney who had engaged in a conflict of interest, failed to adhere to the requirements of an injunction in accepting and misusing fees.

Gilbert represented clients when he had a direct personal interest that conflicted with his representation of those clients, he disregarded the Injunction, and he facilitated his client’s violation of the Injunction by accepting funds subject to that order. And Gilbert, to this day, has disregarded the district court’s order requiring that he disgorge the attorney fees he received from his clients. Regardless of the validity of the Injunction and disgorgement order, the Utah Rules of Professional Conduct require that Gilbert not knowingly disregard those orders without making his intentions known to the district court and opposing counsel. While we recognize that disbarment is a severe punishment, it is appropriate here. We affirm the district court’s order and conclude that disbarment is the proper sanction for Gilbert’s misconduct.

The fees involved the attorney's representation of the Utah Down Syndrome Association against the Utah Down Syndrome Foundation. 

At the time he accepted the checks, Gilbert knew, or should have known, that the funds he received were the subject of litigation and that the bank accounts from which the funds were taken were subject to the Injunction. Nevertheless, Gilbert did not deposit the monies into a trust account or otherwise hold the funds pending the resolution of the dispute between his clients and the Foundation. Nor, as the district court found, did Gilbert “notify the court . . . of his intention to accept the . . . checks based on his position that [the Injunction] was invalid, void, had expired, [and] did not apply to the [funds] he received.” Rather, Gilbert simply cashed the checks and kept the funds.

The Foundation eventually learned that Gilbert had received payments from the bank accounts subject to the Injunction. The Foundation filed a motion to disgorge and requested an order requiring Gilbert to return the funds he had received from the Chapters’ bank accounts. After a hearing on the Foundation’s motion, the district court ordered Gilbert to return the attorney fees to the Foundation.

Despite the district court’s order, Gilbert did not return the legal fees he had received. The Foundation eventually filed a second motion for disgorgement of funds. The court granted the Foundation’s second motion and entered judgment against Gilbert for $30,000, interest, and associated attorney fees. To date, Gilbert has not returned the funds to the Foundation.

The court makes clear the obligations of an attorney subject to a court order who believes the order to be flawed

rule 3.4(c) stands, at a minimum, for the proposition that an attorney must either obey a court order or alert the court that he or she intends to not comply with the order. An attorney may not, as Gilbert did here, ignore a court order while secretly hoping to have a trump card to play if non-compliance later becomes an issue...

Although Gilbert may have harbored reservations about the order’s validity, he, in the district court’s words, “had a duty to openly contest the order by filing a request to stay the order in court, notify the court of his receipt of the . . . checks and at least hold the monies in trust until the court ruled on the issue.” The district court interpreted and applied rule 3.4(c) correctly.

He failed to safeguard the fee

The district court concluded that Gilbert violated rule 1.15(e) in two ways. First, Gilbert failed to place any of the $30,000 in attorney fees in a trust account despite knowing that both the Foundation and his clients claimed ownership of the funds. And second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to the Foundation when ordered to do so by the court.

His subjective good faith as to the validity of the court order was irrelevant 

That comment does not, however, provide an attorney carte blanche to ignore court orders. As explained above, the Utah Rules of Professional Conduct contemplate the situation in which Gilbert found himself: subject to an order he believed to be flawed. The rules instruct an attorney in that situation to either comply or openly refuse to comply. An open refusal permits the district court to assess the attorney’s argument and allows opposing counsel to take action to protect her client from the opposing attorney’s noncompliance. An attorney cannot, consistent with the rules of professional conduct, unilaterally and surreptitiously flout a court order. To the contrary, willful disregard of a district court’s order without an open objection constitutes conduct prejudicial to the administration of justice.

The attorney's procedural objections also failed to persuade the court that disbarment was not appropriate in these circumstances.

In a related matter also decided today, the court denied Gilbert's petition for extraordinary relief.

In 2012, the court denied his petition to bring a third-party complaint against the Foundation in his disciplinary case. (Mike Frisch)

July 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 20, 2016

Madoff of the Midwest: Hoosier Hugh Hefner Wannabe Gets Disbarred

The Indiana Supreme Court has disbarred an attorney who went from the 30,000 square foot high life to decidedly smaller accommodations

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. Respondent’s convictions on ten of the twelve counts were affirmed on appeal. U.S. v. Durham, 766 F.3d 672 (7th Cir. 2014), cert. denied. On remand, the district court again imposed a fifty-year sentence. With his criminal proceedings now having come to rest, Respondent stands convicted of eight counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire and securities fraud. All told, over a period of several years Respondent and two co-defendants defrauded thousands of investors of over $200 million...

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Details from

Tim Durham will spend the rest of his life in prison. Durham was convicted of cheating his clients out of $200 million in a Ponzi scheme, and on Friday, a judge sentenced him to 50 years behind bars.

U.S. District Judge Jane Magnus-Stinson sentenced Durham, a former chief executive of National Lampoon who was profiled in CNBC's "Rise of the Super-Rich" report in 2008, following his convictions in June on charges of securities fraud, conspiracy and 10 counts of wire fraud.

Durham, who ran the investment business Fair Finance, was sentenced to 50 years. Prosecutors had asked for life, while Durham wanted just three...

Prosecutors wanted life sentences for all three men. They say the three stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy classic cars and other luxury items and to keep another Durham company afloat.

Attorneys for both Cochran and Snow asked the judge for less substantial sentences than Durham claiming they did not have control of operations at Fair Finance.

Bloomberg Business Week called him the Madoff of the Midwest and reported on his 45th birthday party

More than 1,000 people showed up at his 30,000-square-foot mansion in Fortville, an exurb of Indianapolis. Members of the Indianapolis Colts arrived, as did Kato Kaelin. Durham dressed like Hugh Hefner, in a plush robe. When he went to blow out the candles, his cake was frosted with his likeness in the center of a million-dollar bill.

 Later, as reported in the Indianapolis Star, Durham posted photographs of the party to his Myspace page, including one of him getting a lap dance and two of the models kissing, nude. He dubbed it his “Fantasy Pajama and Lingerie Party.”
Durham had long attracted attention in Indianapolis, and not just for his parties. He was also one of the state’s biggest backers of Republican politicians. “Tim Durham was somebody who came out of nowhere in the late ’90s and kind of declared himself a very rich guy,” says Greg Andrews, managing editor of the Indianapolis Business Journal, who has covered Durham extensively. “He established himself as a player by being a tremendously large donor to candidates.” Those included Governor Mitch Daniels. Durham gave $105,000 to his 2004 campaign, making Durham the governor’s second-biggest individual donor that cycle. Over the years, he made some $800,000 in political donations, according to public records. The perceived gap between Durham’s private behavior and his support for conservative candidates led Matthew Tully, a columnist for the Indianapolis Star, to chastise Durham for his conspicuously libertine lifestyle. The column went viral, likely because of its link to those Myspace photos.

Bloomberg further reports that he made his initial fortune the old fashioned way: he married it.  

More here on the hubris before the fall from the Indianapolis Monthly in April 2011 under the title Outrageous Fortune. 

Few people have been better at acquiring “stuff” than Durham. The 45-year-old founder of Obsidian Enterprises, a leveraged-buyout firm in Indianapolis, he claims to be worth $75 million. At last count, he owned or co-owned more than 70 classic and exotic cars, three private jets, the yacht, numerous Picassos and Renoirs, two restaurants (Touch and, in Indy, Bella Vita), a nightclub (GELO Ultra Lounge in Castleton), two limousines, a magazine (Car Collector), a plastic-surgery center, a cigar store, and—most strangely—the storied comedy brand National Lampoon. That’s to say nothing of the profitable but less glamorous manufacturing companies that fall under the umbrella of Obsidian...

Durham’s taste for the extravagant has widened his circle of friends lately. He pauses the tour at a photograph of him and Ludacris, rapper and star of the 2004 film Crash. “Luda” stopped by one of Durham’s lavish parties before the Indianapolis 500 last year, and the two instantly became pals. Durham sees nothing strange about a relationship between a rapper and a Hoosier investor, and the feeling is mutual. “Tim can kick it in my crew anytime and blend right in,” Ludacris said by phone from his Atlanta estate this fall. “He knows how to have fun, and we share a lot of the same interests as far as cars and expensive tastes.” Ludacris invited Durham to the 2007 MTV Music Video Awards, where they sat with Paris Hilton and Pamela Anderson. Durham’s regular trips to hang out at the Playboy Mansion with Hugh Hefner have led to a few Hollywood friendships as well. “Hef is a smart guy, a real trendsetter,” he says. “He blazes a lot of trails—a lot like I feel I’m blazing here in Indiana.” Durham should know. His current girlfriend, Jami Ferrell, was Miss January 1997 and dated Hefner (and Jack Nicholson) before making it back to her New Castle home.

(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lawmaker, Lawbreaker

Criminal conduct led to prison and disbarment for a former South Carolina lawmaker.

The Palmetto State reported

The S.C. Supreme Court on Wednesday disbarred former State Rep. Thad Viers, Republican of Horry, for lawbreaking actions committed in 2012 in connection with his ex-girlfriend, as well for a federal money laundering charge.

Viers is now serving time in a federal prison in Hopewell, Va., on money laundering charges that bore no relation to his personal problems. He is due to leave prison in June 2017.

Once Viers, 38, of Myrtle Beach, had punched all the right tickets to ascend the Republican ladder of success.

As a young teen, he was a page to the late Sen. Strom Thurmond, R-S.C., graduated from The Citadel in 1999, did research for the conservative Heritage Foundation think tank, was a member of the Sons of Confederate Veterans and was elected to the S.C. House of Representatives in 2003.

He took the anti-big government positions that resonate with his party’s base – for example, suing the city of Myrtle Beach over its law that required motorcyclists to wear helmets within city limits.

In 2012, as he was readying a bid for Congress, Viers was arrested on charges of harassing and stalking a 28-year-old woman. That came six years after he was charged with threatening to assault a man who was dating his estranged wife. He pleaded no contest in that case.

Before the 2012 harassment and stalking case was disposed of, Viers was also indicted for burglary and larceny – again, a charge connected with the 28-year-old woman Viers had once dated. In 2014, Viers pleaded guilty to harassment 2nd degree and was sentenced to 60 days in jail. The related charges were dismissed.

Later in 2014, a federal grand jury indicted Viers on multiple felony charges including money laundering and making false statements to the IRS.

In August of last year, Viers pleaded guilty to federal money laundering charges in a plea deal that dismissed other charges. He was sentenced to 37 months in prison and to pay a fine of $875,000. Upon release from federal prison, he will be on supervised release for three years.

At some point, Viers will be able to apply for a law license again. But that is at least five years in the future, after he completes his supervised release from prison.

(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

E-Discovery Company Co-CEO Sanctioned For Gross E-Discovery Violations And Other Misconduct

The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute

 Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year. 

As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.

Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...

Some background

In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.

Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.

What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.


The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.

One rather notable aspect of this mess

Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed.  Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.

Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm

Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.

All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.

(Mike Frisch)

July 20, 2016 in Current Affairs | Permalink | Comments (1)

DOJ Manual Exempt From FOIA Disclosure

The United States Court of Appeals for the District of Columbia Circuit has held that the Blue Book manual for federal prosecutors is exempt from disclosure under the Freedom of Information Act.

The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.

Judge Sentelle concurred but only because precedent compelled the result

There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people. The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking “what is it you have to hide?”

...I cannot help but wonder if an insurance defense attorney had written a secret treatise passed around among his bar on how to defend—for example—defective product cases, would we, if that treatise became relevant in specific litigation, afford the protection of the attorney-client privilege to a document not prepared for a particular client or a particular case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case? I think not. But even if we did, I do not think this would justify stretching the FOIA exemption to the point of protecting the departmental tactics and strategies in criminal prosecution from discovery by the citizenry. I cannot help but recall the words of Justice Sutherland for the Supreme Court in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.

Senior Judge Edwards concurred with Judge Sentelle. (Mike Frisch)

July 20, 2016 | Permalink | Comments (0)

Partially Bailed Out

A decision issued today by the New Jersey Appellate Division should be of interest to bail bondsmen in that jurisdiction.

While released on bail, defendants Cesar Mungia, Christian Rodriguez, and Alexis Melendez separately fled from the United States. The State apparently did not seek extradition. The sureties who posted their bail, appellants U.S. Specialty Insurance Company (U.S. Specialty) and American Reliable Insurance Company (American Reliable) (collectively the sureties), appeal the trial court's orders forfeiting 70% of each defendant's bail and remitting 30% to the sureties.

We hold that if a defendant becomes a fugitive and flees to a foreign country, there is a presumption against remission. The surety must make every effort to assist in the reapprehension of the defendant, including by locating the defendant in the foreign country. The failure to extradite a located defendant does not excuse the sureties from their contract with the State, and generally does not justify remission if the State has no ability to obtain extradition of the defendant. However, if the surety locates the defendant in a foreign country, and extradition is possible, but the State elects not to request that the federal government seek extradition, there is no absolute bar against remission. In that situation, the trial court should consider the general factors governing remission. Finding no abuse of discretion in the trial court's consideration of those factors in these cases, we affirm.

(Mike Frisch)

July 20, 2016 | Permalink | Comments (0)

Reciprocal Suspension For Frivolous Litigation

The Wisconsin Supreme Court has imposed reciprocal discipline based on an attorney's suspension by the Minnesota Supreme Court.

The attorney had accumulated a record of disciplinary sanctions in both jurisdictions.

In Wisconsin, he had one private and two public reprimands as well as a prior one-year suspension.

In Minnesota

In the Minnesota proceeding giving rise to this reciprocal discipline case, the Minnesota Supreme Court noted that Attorney Selmer had been disciplined in Minnesota on four prior occasions.

Here, the misconduct in Minnesota led to findings

that Attorney Selmer filed ten separate lawsuits in two different counties, the court of appeals, and a Minnesota federal district court, and then repeatedly failed to obey court orders, appear for hearings, or otherwise respond to pleadings and discovery requests. All ten lawsuits were dismissed based either on the frivolity of Attorney Selmer's arguments or because he failed to comply with court rules. The court noted that two of Attorney Selmer's four prior Minnesota disciplinary proceedings were for similar conduct, engaging in a pattern of harassing and frivolous litigation.

The court here rejected his contentions against reciprocal discipline

Attorney Selmer has wholly failed to provide any claim predicated upon the grounds set forth in SCR 22.22(3) indicating that imposition of the identical discipline or license suspension by this court would be unwarranted.

Finally, notwithstanding Attorney Selmer’s unsupported and conclusory denials, the record supports the OLR’s assertion that Attorney Selmer failed to timely notify OLR of his suspension in Minnesota, which constitutes misconduct pursuant to SCR 22.22(1).

The court imposed a 12-month suspension. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Convicted Attorney Faces Bar Discipline

The North Carolina State Bar has filed ethics charges arising from an attorney's mortgage fraud conviction.

The Chicago Tribune reported on the criminal case

A former national radio host found guilty of mortgage fraud last year left a federal courthouse Tuesday appearing grateful after being sentenced to probation instead of prison time.

Prosecutors have said Warren Ballentine, 44, formerly of Country Club Hills, acted as the real estate lawyer at closings involving more than two dozen fraudulent loans that bilked lenders out of almost $10 million. A jury in October found him guilty of six counts of mail, wire and bank fraud as well as making false statements to financial institutions.

But at Tuesday's sentencing hearing, U.S. District Judge Matthew Kennelly said the evidence presented at trial proved Ballentine's criminal wrongdoing in only three of those deals. Kennelly sentenced Ballentine to three years of probation and 300 hours of community service.

"He was a relatively new attorney, a relatively inexperienced attorney," Kennelly said. "He was basically chasing fees wherever he could find them. … I view Mr. Ballentine as a relatively minimal participant in this."

The judge also ordered Ballentine to pay $140,940 in restitution.

At its peak, Ballentine's three-hour daily radio show featured a wide range of issues affecting the African-American community and was syndicated on Radio One in 37 media markets, including Chicago. He billed himself as "the people's attorney."

Assistant U.S. Attorney Jason Yonan said Ballentine played a significant role in a serious offense.

"The overlooked aspect of this is the damage it causes to communities," Yonan said.

In his own remarks to the judge before the sentencing, Ballentine described his personal narrative of rising up from an impoverished and fatherless childhood on Chicago's South Side and eating "sugar sandwiches."

Despite those challenges, Ballentine said he stayed out of trouble — until being convicted of fraud.

"I'm guilty, but I'm guilty of being ignorant," said Ballentine, his voice wavering with emotion. "I'm guilty of not paying attention. … Your honor, of course it breaks my heart that I'm going through this, but what hurts me the most is about my kids not having their father."

After the sentencing, Ballentine said he was planning to appeal his conviction and told reporters he was grateful to the judge for sparing him time in prison.

"I was portrayed as the one doing all this, but I wasn't," Ballentine said.

The attorney was suspended in September 2015.

The Root had the story of the jury verdict. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A $250 An Hour Paralegal Gets Suspended Again

The Arizona Presiding Disciplinary Judge approved a consent two-year suspension of an attorney who had been suspended and not sought reinstatement.

While employed as a paralegal, he impersonated an attorney and was paid a $250 hourly fee

In summary, Mr. Lerch was working as a paralegal on an at will verbal status by a law firm and two licensed attorneys were to supervise his bankruptcy work. He was referred a client by Chuck Fennimore. That client was involved in complex litigation in Texas. The law firm and its principal was not aware of this case. Notwithstanding, Mr. Lerch verbally contracted with the client that the law firm would represent client, her father and their company. Client agreed to pay Mr. Lerch $20,000.00 for the review and evaluation of her case. Client paid those funds as directed by Mr. Lerch to his then defunct law firm’s bank account and another $2,500.00 to Fennimore. Only Mr. Lerch could disperse funds from the account. During the pendency, none of the attorneys in the law firm spoke with or received copies of the emails between Mr. Lerch and client.

None of the communications between Mr. Lerch and client indicate that Mr. Lerch acted as a paralegal. The emails Mr. Lerch sent regarding the litigation used the email account from his defunct firm, not the law firm he was otherwise working for. He billed the client $250.00 per hour. None of his assistants were lawyers. While his itemized fee statement listed the law firm’s name he was working for as a paralegal, he intentionally listed his defunct email account on the document rather than the email of the listed law firm.

As to sanction

  But for the hiring of a Texas lawyer to mediate the agreement, the actions of Mr. Lerch would probably have remained hidden, encouraging him to continue to pretend he was a licensed lawyer and defraud other members of the public. Two central tenants of lawyer discipline is the protection of the public and to deter similar conduct by other attorneys. A two (2) year suspension is fully warranted. The PDJ finds the proposed sanction of suspension meets the objectives of attorney discipline and the Agreement is therefore accepted.

 (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 19, 2016

Porn Conviction, Bar Charges

An Illinois attorney has been charged with ethical violations based on his criminal conviction

Prior to June 2015, Arlington Heights police began investigating Respondent after receiving tips that had been submitted to the National Center for Missing and Exploited Children that child pornography had been downloaded via multiple Twitter accounts from an Internet service provider address belonging to Respondent.

In June 2015, Arlington Heights police searched Respondent’s home and seized a laptop computer, several external hard drives, jump drives, CDs and DVDs, containing more than 500 images and 50 videos of child pornography, including images of children under the age of 13 engaged in sexual activity.

On July 22, 2015, a Cook County grand jury indicted Respondent on 31 counts of the offense of child pornography in the matter of People of the State of Illinois v. James Crowley, docket number 15 CR -11467. Count one of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photograph or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(i)/(c-5) of the Illinois Compiled Statutes.

Count two of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photography or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct involving the sex organ of the child and the mouth of another person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(ii)/(c-5) of the Illinois Compiled Statutes.

On May 19, 2016, Respondent entered into a voluntary plea of guilty to Counts one and two of the indictment. Respondent was sentenced to serve six months in the Cook County Department of Corrections, 48 months of sex offender probation, and fined $1,199. The State’s Attorney nolle prossed counts three through 31 of the indictment upon Respondent’s plea of guilty.

The Chicago Tribune reported on the criminal charges. (Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Pillager: "So When Is A Lawyer Lying?"

sunEthics has the story of a criminal appeal decided by the Florida Third District Court of Appeal.

Guy Bailey, Jr., appeals his conviction for grand theft, the act of theft being the pillage of $700,000 held by him in trust for his clients. The State cross-appeals the downward departure sentence imposed by the trial court, which spared Bailey jail time for his infraction. On these two appeals, we affirm the conviction but reverse the downward departure sentence with the direction to the trial court to impose a guidelines sentence on Bailey of between twenty-one months and thirty years, as calculated on his Criminal Punishment Code Scoresheet. A fortiori, we also reverse the more recent order of the trial court revoking Bailey’s probation and imposing sentence, upon a determination that Bailey violated a condition of his probation by failing to pay restitution to the victims of his theft.

The issue on appeal involved the prosecutor's rebuttal argument

So where is the misunderstanding?

It’s simply an attempt, ladies and gentlemen, it’s an attempt by the Defense to use the word, misunderstanding.

And, ironically, you will find that word in an Instruction in this case, and it is more legal mumbo-jumbo.

So if there was an Agreement, then what is the misunderstanding?

Lawyers take money, and they lie. So when is a lawyer lying? It’s when they open their mouth. These are terms that we hear all of the time.

MR. PERTIERRA: Judge, it’s totally improper.

THE COURT: State your objection.

MR. PERTIERRA: It’s totally improper, Judge, Counsel’s comments.

THE COURT: Thank you. Please be seated. No reference is being made to any lawsuit. These, again, are just comments by an attorney and not considered by you to be evidence. Please, let us proceed.

MS. DUNNE: Lawyers are often the butts of jokes. They are the recipients of phrases and this happens because of the fact that we have a bad reputation.

So, Mr. Bailey exemplifies that because of the actions that he did in this case to the Levrants.

The argument was improper but did not warrant reversal

The evidence of Guy Bailey’s guilt was substantial and enabled the jury to easily reject Bailey’s defense that the entire episode was a “misunderstanding” between him and his clients. More than five years passed from the time Attorney Bailey stole $700,000 from his clients to the date of his trial. Repayment was promised – many times promised – but not a farthing was offered.

Daily Business Review reported that he is disbarred an was recently jailed for failure to pay restitution.

Good," said Hugh Culverhouse Jr., a real estate entrepreneur and Coral Gables attorney who is a former friend and colleague of Bailey's. "The man is the essence of contempt for humanity."

Culverhouse, son of former Tampa Bay Buccaneers owner Hugh Culverhouse Sr., and Bailey were co-counsel in the mid-1980s when Bailey converted almost $100,000 in client settlement funds but was never charged criminally.

Prosecutor Colleen Dunne said, "It's unfortunate that Mr. Bailey didn't take advantage of the court's leniency when he was placed on probation." Dunne was brought in from Monroe County to try the case because local prosecutors recused themselves, citing Bailey's close ties to the legal community.

Bailey, a Yale Law graduate, was admitted to practice in 1966 and rose to "the very pinnacle of the commercial litigation bar in this community," Hirsch said in his 2014 sentencing order.

(Mike Frisch)

July 19, 2016 | Permalink | Comments (0)

Hot Blooded And Reprimanded Rather Than Suspended

An attorney who was suspended for three years in New York got a reprimand as reciprocal discipline in New Jersey.

He had failed to supervise an employee who had threatened his client, leading to the 2003 suspension.

The story

On or about January 7, 1998, respondent sent or caused his office to send a letter to his client, Sulaiman Ahmad concerning a fee dispute. The letter was written on respondent’s office letterhead, identified as "The Law Offices of Jay Chatarpaul." The purported signature on that letter was that of Robendranauth (Rob) Ramphul, who was identified in the letter as a law graduate. Mr. Ramphul had graduated from law school, but was not admitted to the practice of law in the State of New York. In an effort to collect payment for legal services purportedly rendered on Mr. Ahmad’s behalf, the letter implied that confidences and privileged information would be used against Mr. Ahmad as follows:

'We will give you until January 15, 1998. This will be our last contact with you. We are trying to avoid you the pain and suffering of going through all of this. Mr. Ahmad, what you have done is very stupid. We are still your attorney. Your case is not over yet. Your case is still open. Your fingerprints will come to us within a few months. We have your rap sheet. We have your arrest record. We have your social security number. By the time you receive this letter, we will know where you work. We can subpoena your financial information from your credit card company. Where will you turn and hide. If you honestly believe that moving to another state will keep you safe, well you are really stupid.’

At or about the same time, respondent’s sister, Parbatie Ramdat, a nonlawyer employee in respondent’s office, went to Mr. Ahmad’s home address at the request of respondent. Mr.[sic] Ramdat affixed to Mr. Ahmad’s door, an unsigned letter containing similar implied threats. On or about January 19, 1998, respondent sent a letter to Martha Sherman of the First Savings Bank to which respondent annexed documents pertaining to Mr. Ahmad’s criminal court complaint, his interview prepared by the Criminal Justice Agency (CJA), and motion papers pertaining to his criminal matter. Mr. Ahmad’s case was still pending and was scheduled to be dismissed and the record sealed. On January 16, 1998 Mr. Ahmad filed a complaint against respondent with the petitioner Grievance Committee and enclosed the above mentioned January 7, 1998 letter. Respondent provided the petitioner Grievance Committee with a written answer dated January 24, 1998. He also enclosed a copy of the above mentioned January 19, 1998 letter. In respondent’s answer to the petitioner Grievance Committee he stated that it was his employee, Mr. Ramphul, who sent the letter dated January 7, 1998 to Mr. Ahmad because Mr. Ramphul had been outraged by the client’s failure to pay his fee. In an examination under oath before the petitioner Grievance Committee, on March 5, 1998, respondent testified that it was he and not Mr. Ramphul, who had drafted the January 7, 1998 letter and that respondent had directed Mr. Ramphul to sign it

The New Jersey Disciplinary Review Board

Although we were troubled by respondent’s conduct, we were not persuaded that a suspension is required in this case. Compelling mitigating circumstances convinced us that a reprimand adequately addresses the seriousness of respondent’s ethics transgressions and, at the same time, preserves the confidence of the public in the profession. Specifically, as pointed out in respondent’s February 25, 2002 letter to the OAE, respondent was a new and inexperienced attorney at the time, whose "young hotbloodedness’’ motivated his actions. Respondent has expressed regret for "each and every single act with respect to that client" and acknowledged that "he threw away all my humbleness and humanitarian beliefs out the window. I shamed myself, my client, and caused great grief to my self [sic] and those in this great profession." Respondent claimed that, since these incidents, he has learned a lot and has become a mature individual. We also noted his recent humanitarian efforts toward police officers and firefighters following the tragic events of September 1 1, 2001.

The court agreed.

In a second matter, the court ordered that ethics charges against the same attorney be dismissed.

The court held that the dissemination of public record information did violate violate the duty of confidentiality and that there was a lack of precedent that the failure to preserve web page information violated Rule 7.2(b). 

The DRB had proposed a reprimand for 

respondent’s conduct in (1) publishing, on his law firm’s website, an article about a discrimination case that he had instituted on a client’s behalf and in which he made comments about the judge who had presided over the trial, (2) failing to remove the article from the website, as required by the terms of the settlement agreement executed by the parties, and (3) failing to comply with the RPCs governing attorney advertisements. 

There was a dissent in favor of dismissal of the charges

Like the special master who heard this matter, I do not think that re-publishing confidential information that has already been made public should be considered an ethics violation or that one should need a client’s permission to use already-public information in an article. cited by the majority Nor do I think that the legal authority (at p. 61) supports such a holding...

Although RPC 7.2(b) requires attorneys to keep a copy of "an advertisement or written communication" for three years "after its dissemination," no prior case has found a violation of this rule or addressed this issue, and I disagree with the majority that failure to keep this type of record is comparable to violations of RPC 1.15(d) requiring attorneys to maintain financial and banking records. It is not even clear that RPC 7.2(b), adopted in 1984 before the wide use of the internet that exists today, requires attorneys to keep all versions of easily-changed websites that are often frequently updated. Moreover, this issue arose in this case only because a settlement agreement required respondent to remove his article from the internet and his failure to keep a copy of the various iterations of his website under these circumstances seems to be unintentional and, at most, a de minimis violation.

(Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)