Sunday, September 23, 2018

Were Exonerated Clients Abused And Cheated By Attorney?

The North Carolina State Bar has filed charges against an attorney alleging misconduct in his dealings with two exonerated defendants.

The complaint allege violations of Rule 1.1 to multiple violations of Rule 8.4 (b), (c), and (d)  with many stops along the way such as Rules 1.5(a) (excessive fees), 1.6(a) (breaching confidentiality), 1.16(a)(improper financial penalty on withdrawal), 1.8(a)&(e) (improper business transaction with client ), 3.3(a) (false statement to tribunal), Rule 5.4(a) (sharing fees with non-lawyers), 5.5(f)(taking direction from "consultant advisors") and 7.1(a).

The Marshall Project reported on the Bar's investigation

The North Carolina State Bar is investigating a Florida lawyer for his treatment of two mentally disabled clients who spent 31 years in prison before being declared innocent.

Henry McCollum and his half-brother, Leon Brown, were exonerated in 2014 after serving decades in prison for the notorious rape and murder of an 11-year-old girl. They received $750,000 each from the state in compensation.

After they were freed, lawyer Patrick Megaro pocketed a third of each award despite having done virtually no work on the exonerations or pardons the men received in 2015. He approved loans at 42 percent interest for the brothers and a $20,000 payment to two women, self-described advocates for the brothers who brought Megaro the case.

McCollum went broke and began borrowing more money at 39 percent with the lawyer’s approval.

The Marshall Project detailed the brothers’ plight in a story in The New York Times.

McCollum’s court-appointed guardian removed Megaro from the case earlier this week. High-powered Washington, D.C., law firm Hogan Lovells, where U.S. Supreme Court Chief Justice John Roberts once practiced, now will be representing him for free in his lawsuits against the police agencies who allegedly wronged him.

“We are honored to be representing Henry in this important case,” said Cate Stetson, a partner in the firm. “We hope to bring him some measure of justice for the wrongs he’s suffered.”

Megaro did not respond to requests for comment. He is still representing Brown, McCollum’s half-brother. Duane Gilliam, a Fayetteville, N.C., lawyer who is Brown’s legal guardian, did not return phone calls inquiring about Megaro’s status.

The state bar is looking into at least two complaints against Megaro in connection with the McCollum case, said lawyer Ken Rose, who represented McCollum for 20 years when he was on death row. Rose said he filed a complaint earlier this year and was told the bar was already probing the Florida lawyer.

The president of North Carolina Advocates for Justice, an association of criminal defense and plaintiff lawyers, also asked the bar to investigate. This is not Megaro’s first run-in with the bar, which reprimanded him in 2015 for making false and misleading statements about legal services provided through an out-of-state law firm not licensed in North Carolina.

The bar also has a third case pending: An Alamance County woman filed a complaint saying Megaro did nothing after she paid him thousand of dollars to appeal her divorce case. The judge dismissed the appeal after ruling that Megaro “blatantly disregarded” court rules.

The link takes the reader to an in depth background story.

The Death Penalty Information Center had this report with links to additional articles. (Mike Frisch)

September 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 22, 2018

A Dangerous Mix Of Sex, Drugs And Farming

The Louisiana Supreme Court disbarred an attorney who defaulted on these charges:

Count One

On September 28, 2009, New Orleans police, while responding to a report of suspicious activity, observed respondent exiting a vehicle with a needle sticking out of her forearm and blood trickling down her arm. After taking possession of the needle and questioning respondent, she acknowledged the presence of additional drug paraphernalia in a bag located under the vehicle’s seat. This drug paraphernalia included additional needles, a lighter, a “coppertop” that had been burned on the bottom, and an elastic band that the police confirmed is associated with heroin use.

After respondent’s arrest and arraignment for possession with intent to use drug paraphernalia in violation of La. R.S. 40:1033, she was released on bond. Respondent subsequently failed to appear in court for trial, which resulted in a bench warrant for her arrest. The district attorney’s office eventually dismissed the charges against respondent when they became stale after not locating her.

Count Two 

Respondent represented M.S and her husband W.S in connection with their corporate farming enterprise and business. During the representation, respondent commenced a sexual relationship with W.S. and introduced him to the drug culture in which she was engaged. Respondent’s conduct with W.S. resulted in the acrimonious divorce of M.S. and W.S.

Count Three

Respondent has been ineligible to practice law since September 10, 2010 for failing to pay her bar dues and the disciplinary assessment. Additionally, as a result of her conduct in Count I above, respondent was interimly suspended from the practice of law by order of this court effective February 7, 2012. Notwithstanding her status, in December 2011, respondent continued to represent W.S. and his farming enterprise.

Count Four

In September 2010, respondent was arrested on an attachment for contempt of court arising from her failure to appear in response to a speeding citation. Months later, respondent appeared and paid her court fine.

In October 2012, respondent was involved in a motor vehicle accident and was cited for driving with a suspended driver’s license and failure to maintain control. Respondent failed to appear for her arraignment, and an attachment was issued, which attachment remains open.

Count Five

In March 2013, respondent and W.S. were arrested in Ascension Parish when they were caught by police in a bathroom of the Lamar Dixon Center in possession of cocaine, crack cocaine, and a crack pipe. Respondent was released on bond but failed to appear for her arraignment. A bench warrant was issued for her arrest, and she is currently a fugitive from justice.

The attorney did participate in the discipline matter.

Sanction

Respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession, causing significant actual harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, the mitigating factor of personal or emotional problems is present because evidence in the record indicates respondent has a severe drug problem.

Regarding the appropriate sanction for respondent’s misconduct, in addition to the cases cited by the board, we find guidance from In re: Blanche, 12-0552 (La. 6/22/12), 90 So. 3d 1034. In Blanche, an attorney neglected a legal matter, failed to communicate with a client, and was convicted of three drug- and alcohol-related criminal offenses. For this misconduct, we suspended the attorney from the practice of law for three years. In light of this case law, and given that respondent also practiced law while ineligible to do so and engaged in a sexual relationship with a client, we find disbarment is warranted.

Justice Hughes would impose a lesser sanction. (Mike Frisch)

September 22, 2018 | Permalink | Comments (0)

Friday, September 21, 2018

Wicked Words, Wicked Deeds

An order entered by a Connecticut Superior Court Judge yesterday in the case of Corona v. Day Kimball Healthcare Inc. suspending an attorney for 120 days begins as follows

For the courts to guarantee the triumph of the law over the loud, there must be civility in court proceedings.

The court's ire was drawn by a statement picked up by a lapel microphone before a deposition that revealed the attorney's strategy to an associate

"Fuck him," she said - referring either to opposing counsel or the court itself - "I am going to give him such a fucking hard time."

The court rejected the suggestion that these bon mots were "ordinary lawyer talk" and explained at length how the attorney's conduct of the proceeding showed that her "wicked words betoken[ed] wicked deeds." 

The ABA Journal noted prior sanctions

A 24-year practitioner has been sanctioned $11,484 by a Connecticut judge for coaching a witness during a deposition.

Defense lawyer Madonna Sacco has been sanctioned four times previously for “strikingly similar” behavior during depositions, but the penalties apparently didn’t have the desired deterrent effect, according to Hartford Superior Court Judge Robert Shapiro. He found not only that the medical malpractice specialist had violated discovery practice standards but that she had also violated attorney ethical rules, reports the Connecticut Law Tribune.

During a hearing earlier this year, Sacco argued that the judge had incorrectly invoked the ethics rules without adequate notice, contending that the state’s attorney disciplinary system was the proper forum for any such complaint. However, she has since paid the sanction, the legal publication reports. She declined to comment for the article.

No attorney grievance has been filed against Sacco, notes Mark Dubois, the chief disciplinary counsel for the the state. “Sometimes,” he says, “judges just like to handle these things themselves.”

Thanks to Steve Zoni for sending this order to us. (Mike Frisch )

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Shades Of Gray And Black

A public  censure of an attorney has been imposed the the New Yor k Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8), alleging that respondent was guilty of certain misconduct in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) because he counseled a client to engage in conduct he knew was illegal or fraudulent and misrepresented his personal experience and knowledge during a meeting with the client. Specifically, respondent met with a potential client who represented himself as appearing on behalf of a West African minister. The individual stated that the minister desired to purchase real property in the form of a brownstone, an airplane, and a yacht in the United States and identified the money as "gray money" or "black money." Respondent did not personally inquire as to the provenance of the money. Although respondent knew that the money was questionable, he informed the individual that he would have to consult with an expert to determine whether the money could be moved anonymously and to make sure that the money was "clean" and not criminally derived. Nonetheless, respondent offered suggestions on how to transfer the money into the United States from other countries in ways that would mask the minister as the ultimate or beneficial owner. He also misrepresented his personal experience and knowledge of the subject matter to keep the potential client interested.

Sanction

In light of the significant factors in mitigation, including respondent's cooperation, admitted conduct and acceptance of responsibility, and the fact that the misconduct was aberrational and occurred in the context of a single, open-ended conversation during a meeting with a potential client after which respondent took no further steps, the parties agree that a public censure is appropriate.

(Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Supervision Obligations When Secretary's Ex-Husband Is Murdered

An attorney has been suspended for 60 days by the Iowa Supreme Court

Mathahs has practiced law in Iowa since 2001. Upon obtaining his law license, Mathahs has practiced mostly from an office in Marengo. Although he practiced with a firm for a brief period after becoming an attorney, Mathahs has been in a solo practice for most of his career.

In October 2001, the SPD and Mathahs entered into a contract whereby Mathahs would provide legal services to indigent adults and juveniles in certain Iowa counties. The contract initially specified that Mathahs would provide services in seven counties. Through a series of renewals, the geographic scope increased to as many as nineteen counties. Mathahs testified his SPD work eventually constituted more than ninety-nine percent of his practice. The parties agree Mathahs was very busy and performed his representation of indigents and juveniles satisfactorily. Mathahs continued in this line of work until the expiration of his most recent contract with the SPD on May 1, 2013. Since that time, Mathahs has not been under contract with the SPD.

To receive payment from the SPD for his services, Mathahs was required to submit General Accounting Expof expenses, including mileage. enditure (GAX) forms to the SPD detailing the dates, specific services performed, and the amount of time for each service. Mathahs was also required to submit itemization of expenses, including mileage...

On March 1, 2013, Samuel Langholz from the SPD wrote to Mathahs about his concerns over the accuracy of the hours and mileage expenses recorded on Mathahs’s GAX forms. Langholz wrote that Mathahs had claimed more than 3000 hours and had received more than $180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).

Langholz and Mathahs met on March 7 to discuss the matter. On March 24, Mathahs wrote to Langholz to explain the inaccuracies and discrepancies in his GAX forms. After acknowledging he had signed the GAX forms and accepting responsibility for the incorrect information, Mathahs explained how the errors had occurred.

With regard to the excessive hours, Mathahs explained it was the result of inattentiveness on the part of his legal secretary. Mathahs attributed his secretary’s inattentiveness to the brutal murder of her exhusband. He stated he could not fire her because her ex-husband’s death had ended child support and left her with no income. Mathahs further explained he had instructed his secretary as to her duties by dictation on cassette tapes and had told her to work from the dictation sequentially. Each tape contained information regarding  the correspondence, motions, and reports but would put the billing off until later. She would then go back and listen to the same tapes, fastforwarding through the correspondence, motions, and reports she had already completed to get to the parts about billing. Because she skipped around when transcribing the dictation, she would bunch together time from many different dates into one date instead of recording the time as hours spent over the course of many days. According to Mathahs, after becoming aware of her mistakes, he told her to stop skipping around, but she failed to comply. The secretary also haphazardly entered the dates of service, and thus the dates of service on the GAX forms often did not correspond to the dates Mathahs had done the actual work.

With regard to the excessive mileage expenses, Mathahs explained that beginning in 2009, he made single trips for several clients and erroneously billed each client for the total mileage.

The court rejected a defense of  laches based on a four-year delay in the bar process.

Misconduct re fees and expenses

Mathahs conceded he billed the SPD for excessive hours and mileage and reimbursed the state for some of the excessive fees and mileage expenses he billed. Based on the record, we conclude the Board proved by a convincing preponderance of the evidence that Mathahs violated rule 32:1.5(a).

And he failed to properly supervise his secretary'

Mathahs knew of her diminished mental state and lack of attentiveness at work because of her ex-husband’s murder. Yet upon finding billing errors, he simply instructed her to listen to the dictations sequentially and continued to allow her to prepare his GAX forms. A reasonably prudent lawyer in Mathahs’s shoes would have taken more care to ascertain that his secretary did not repeat her mistakes, especially when she began working remotely and Mathahs found it difficult to monitor her compliance with office procedures.

The court looked to prior caselaw as well as the mitigating and aggravating factors in determining sanction. (Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 20, 2018

Illinois Supreme Court Enters Discipline Orders

The Illinois Supreme Court has announced sanctions in a number of matters.

Highlights

In re WARREN BALLENTINE III, Attorney Number 6276358

Mr. Ballentine, who was licensed in 2002, was disbarred. After a four-day federal jury trial, he was found guilty on one count of fraud, one count of mail and wire fraud, two counts of bank fraud, and two counts of making false statements to financial institutions. He acted as a lawyer in real estate closings that involved more than two dozen fraudulent loans that bilked lenders out of almost $10 million. He was suspended on an interim basis and until further order of the Court on October 21, 2015.

In re WALTER RYAN HAYBERT, Attorney Number 6289703

Mr. Haybert was licensed in Illinois in 2006 and in California in 2008. The Supreme Court of California disbarred him following a misdemeanor conviction of contempt of court for violating a protective order requiring him to stay at least 100 feet away from his ex-wife. The Supreme Court of Illinois imposed reciprocal discipline and disbarred him.

In re SCOTT THOMAS KAMIN, Attorney Number 6226855

Mr. Kamin, who was licensed in 1995, was suspended for ninety days. He dishonestly accepted service of a complaint and summonses for the subtenants in his office suite, who, along with Mr. Kamin, were defendants in an eviction action filed by his landlord.  After he accepted service on behalf of the subtenants, he concealed the lawsuit from them.  When he appeared in court for the case, he failed to inform the court that he had not been authorized to accept service or appear on behalf of the subtenants. The suspension is effective on October 11, 2018.

One we had reported involving on line misconduct

In re DREW RANDOLPH QUITSCHAU, Attorney Number 6278288

Mr. Quitschau, who was licensed in 2002, was suspended for six months and until further order of the Court. He created an account and false profile for another attorney on the website Match.com, and enrolled that lawyer in online groups, including the Obesity Action Coalition, Pig International and Diabetic Living, without that lawyer’s knowledge or permission. He also created a false Facebook profile account and posted false reviews of that lawyer’s legal abilities on three other websites.

A breach of the duty of confidentiality

In re LAURA LEE ROBINSON, Attorney Number 6216755

Ms. Robinson, who was licensed in 1993, was suspended for ninety days and must complete the ARDC Professionalism Seminar within one year. She entered into an agreement that improperly prohibited her client from reporting any aspect of her representation to the ARDC.  Approximately nine months later, after her client informed her that he no longer wanted her to represent him, she drafted a letter that disclosed information about her client’s criminal history, and that levelled accusations against him, including that he wanted to “bribe the court” and was a “con man.” She thereafter filed the letter with the court without her client’s consent. The suspension is effective on October 11, 2018.

The gurus of Illinois discipline can illuminate

For additional information concerning these disciplinary orders contact:

James J. Grogan or Ari Telisman, Attorney Registration and Disciplinary Commission, Chicago.

312.565.2600 or 800.826.8625

(Mike Frisch)

September 20, 2018 | Permalink | Comments (0)

Wednesday, September 19, 2018

Practice In The Shadows Draws Revocation

A licensed legal consultant had his limited license revoked  by the New York Appellate Division for the Second Judicial Department

Charge one alleges that the respondent exceeded the scope of his authority as a legal consultant by holding himself out as an attorney in the State of New York, in violation of section 521.3(f) of the Rules of the Court of Appeals (22 NYCRR) and rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: On or about November 25, 2015, the respondent appeared at the New York City Office of Trials and Hearings in Matter of Taxi & Limousine Commn. v Doumbia (Index No. 80041335A). The respondent noted his appearance for his client, Daouda Doumbia, on the record, and confirmed on the record that he was an attorney. The respondent participated in the entire hearing, including the direct and redirect examinations of his client. The respondent failed to identify himself as a legal consultant.

Counts two and three alleged business card, letterhead  and trade name violations.

His response

While the respondent declined to testify at the hearing, he testified at his examination under oath during the Grievance Committee’s investigation that he did not view representing clients before an administrative agency as practicing law. At the hearing, the respondent contended that the term “legal consultant” does not exist in the legal profession throughout the entire world, and that the term “legal consultant” is not a professional title, unless used in conjunction with the title of attorney or lawyer. The respondent contended that in the absence of the word “attorney,” no one understands what a “legal consultant” is, and thus, he should be able to hold himself out as an attorney.

The referee sustained all charges

“Respondent is a legally educated Sudanese lawyer who sought (and was granted) court permission to practice as a ‘licensed legal consultant’ (L.L.C.). This status was sought only after repeatedly failing to pass the New York State Bar examination.

“As an L.L.C., he was obliged to limit his legal consulting practice, consistent with the Rules of the Court of Appeals. However, the available evidence suggests that Respondent viewed himself as imbued with ‘attorney’s status’ equal to lawyers who pass the bar examination, and are approved by the Committee on Character and Fitness.

“Respondent’s decision to practice in administrative tribunals was marred by representation calculated to indicate he was a duly admitted lawyer. His business card, and attendant paperwork, similarly created a carefully calculated ‘optic’ that those with whom he interacted were dealing with a New York licensed lawyer.

“That Respondent apparently did not comply with General Business Law Section 130, and utilized a de facto trade name, are powerful indicia of an attempt to operate a law practice in the proverbial ‘legal shadows.’”

(Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Bright Line Rule On Judicial Recusal

A new opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2018-22
Date of Issue: September 12, 2018

ISSUE

Do the Canons of Judicial Ethics require that a judge automatically recuse or disqualify himself/herself without request when a close relative and that relative’s company are represented by a law firm whose lawyers have unrelated cases pending before the judge.

ANSWER: No.

FACTS

The inquiring judge’s spouse owns a construction company that is represented by a large law firm with many departments. The firm currently has cases pending before the inquiring judge; however, none of the lawyers representing the company and the judge’s spouse appears before the inquiring judge. The inquiring judge is aware that disclosure of the firm’s relationship with the judge’s spouse is required. What the judge is unsure of is whether there is a bright line rule requiring automatic disqualification.

DISCUSSION

On many occasions this committee has recommended that judges disclose relationships that might call into question their ability to act impartially and without bias. However, there have been only a few circumstances where we have suggested that disqualification is automatically required as a bright line rule. For example, we have opined that a judge who draws an opponent should automatically disqualify himself or herself in cases that directly involve that opponent. Fla. JEAC Op. 84-12. We have said that a sitting judge who intends to seek re-election should automatically disqualify from presiding over cases in which the law partner of an attorney who has qualified to run against the judge. Fla. JEAC Op. 11-08. We have opined that automatic disqualification is appropriate in all cases involving a law firm that currently represents the judge. Fla. JEAC Op. 99-13. Finally, this Committee has consistently opined that disqualification is automatically required in any case involving a law firm if a close family member is a lawyer with that firm. See Fla. JEAC Ops. 17-2012-3206-2698-20 and 84-24.

For a time, this committee was of the opinion that almost any employment of a relative by a law firm was a basis for the automatic disqualification of the judge.1 We later recognized that a bright line rule requiring automatic disqualifications in “all cases involving the employment of a judge’s relative by a law firm” was misplaced and we receded from that position. Fla. JEAC Op. 07-16. We acknowledged that our prior opinions disregarded the Commentary to Canon 3E(1)(d) which states:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that the judge’s impartiality might reasonably be questioned under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding under Section 3E(1)(d)(iii) may require the judge’s disqualification.

Instead, we concluded that “issues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm.” Fla. JEAC Op. 07-16.

The issue presented here does not involve the relative of a judge working as an employee of a law firm that has cases pending before the judge. Nor does it involve a firm that controls the income and financial interest of that relative. Here, the judge’s spouse is the employer and the law firm is the employee. The positions of power are reversed and the risk of the relative’s “interest in the law firm [being] substantially affected by the outcome” of any proceeding pending before the judge is either de minimus or nonexistent. See Canon 3E(1)(d). Instead, the incentive to make sure the firm does well for the client rests with the employee/law firm and not with the employer/client or the judge’s spouse of the employer/client.

In Fla. JEAC Op. 17-03 the inquiring judge presided in criminal court. The judge’s spouse was an attorney who had a civil practice and who, from time to time, received referrals from lawyers who appeared before the judge. The judge wanted to know if disqualification was automatically required from any case of any lawyer who had referred a case to the judge’s spouse. We opined that the judge was not required to disqualify. We reasoned that this was not a circumstance where the judge’s impartiality might reasonably be questioned because the spouse’s relationship with the referring attorneys was a “business relationship.” Id. We acknowledged the potential for retaliation against the judge’s spouse by refusing to refer business and the incentive for the judge to “lean in favor” of the referring attorneys to prevent retaliation. Id. None-the-less we concluded that although disclosure was required recusal need not automatically follow.” Id.

In Fla. JEAC Op. 05-06 the judge’s spouse owned an “S Corporation” chartering sailboats. The boats were docked at a marina owned by a local attorney. The attorney’s associates occasionally appear before the judge. The judge had no individual interest in the corporation and did not participate in corporate decisions. The judge inquired as to whether automatic disqualification was required in all cases handled by lawyers in the firm. We answered that question in the negative. We found that the success of the attorney’s practice “was immaterial” to the business relationship between the attorney and the spouse. Id. We concluded that if “there is any basis for concern, it stems from a perception that the attorney could retaliate against the spouse’s business as a result of adverse rulings by the judge, or that the judge would lean in the attorney’s favor to prevent this from happening.” Id. We counseled the inquiring judge that in analyzing whether he or she should choose to disqualify, the judge should consider the significance of the business relationship. That consideration includes:

[The] length of time the business relationship has existed, whether the relationship is one of unusual value to the judge’s spouse, whether the attorney takes an active role in the business, whether and how frequently the attorney has face-to-face dealings with the spouse, and whether the attorney and the spouse (as well as the judge) share other professional or personal relationships.

We left it up to the inquiring judge to determine whether disqualification was appropriate even though it was not automatically required.

Finally, in Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 43 Fla. L. Weekly D1283 (Fla. 3d DCA June 6, 2018) a member of a large law firm declared his candidacy to unseat a sitting judge. The firm had as many as twenty-six cases pending before the judge though none of the cases were being handled by the candidate for office. The firm sought to disqualify the judge from all of the cases pending before the court arguing that disqualification was required due to the “‘inherent prejudice or bias by the Incumbent Judge against the movant represented by the Law Firm and the Law Firm itself.” Id. at 2. The judge denied the motion to disqualify and the firm and its clients sought relief in the appellate courts. The appellate court affirmed the trial court’s denial of the motion to disqualify. Among the reason for denying the petition for certiorari, the Third District observed that the “law presumes ‘that a judge will remain impartial . . .” Id. at. 3. See also State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3d DCA 1977) (“[T]he impartiality of the trial judge must be beyond question, for justice presumes an impartial judge.”). The court stated that “a motion to disqualify will not be legally sufficient unless the movant overcomes the presumption of impartiality.” The court rejected the argument that “inherent prejudice” existed based solely upon an “attorney’s mere association” with a candidate employed by a statewide law firm. Sands Pointe at 3. More was required to overcome the presumption of impartiality and require disqualification. We do not believe that the mere association of a judge’s spouse with a law firm by employing that firm to handle business matters unrelated to any proceeding pending before the judge defeats the presumption of impartiality. Automatic disqualification from all unrelated cases involving that firm is not required.

In opining here that the inquiring judge is not required to automatically disqualify himself or herself based upon the facts presented here, we do not mean to suggest that the judge is not required to, or should not consider a properly filed Motion to Disqualify on the merits. Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge should disqualify himself or herself in a proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding.”

(Mike Frisch)

September 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Opiates and Mitigation Weighed In Louisiana

The Louisiana Supreme Court has ordered a  year and a day suspension of an attorney with all but 90 days stayed with conditions

In 2012, respondent was involved in an automobile accident that caused injuries to the driver of the other vehicle. Respondent was under the influence of a prescription drug, butalbital with codeine, at the time of the accident. Respondent was arrested and charged with second offense DWI,  careless operation of a motor vehicle, obstruction of justice, and vehicular negligent injuring.

In August 2013, respondent pleaded no contest to DWI, careless operation, and vehicular negligent injuring. For each count, he was sentenced to serve six months in the parish jail, with credit for time served; the sentence was suspended and respondent was placed on unsupervised probation for six months with conditions, including payment of a fine plus costs and completion of community service.

He entered an in patient recovery program for a three-day evaluation but

Palmetto recommended that respondent complete a long-term inpatient treatment program followed by the execution of a five-year JLAP recovery agreement. Palmetto also recommended that respondent taper off all controlled medications under medical supervision and that he complete inpatient treatment “before consideration for return to the practice of law.” Respondent declined to comply with Palmetto’s recommendations. 

At the disciplinary hearing

Respondent denied that he has a drug problem warranting substance abuse treatment or the requirement that he execute a JLAP agreement. Respondent emphasized that in the past he has taken only pain medication prescribed to him by “a doctor that knew my history for 30 years. And I took the medication as prescribed.” Moreover, he reiterated that as of 2016, he is no longer taking any pain medication. Respondent testified that he is sober at this time and does not need any help in staying sober, as recommended by the professionals at Palmetto...

While recognizing that respondent has recently made vast improvements in limiting his prescription drug usage, the committee nonetheless recommended that respondent execute a five-year JLAP recovery agreement as a condition of a fully deferred one year and one day suspension.

Before the Disciplinary Board

After review, the disciplinary board determined that the hearing committee erred in finding that respondent had experienced withdrawal symptoms. Additionally, the board noted that respondent stopped using pain medication several months prior to the hearing and has had success with alternative treatments to manage his pain.

Therefore, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of probation. Given the change in circumstances since respondent’s last evaluation at Palmetto in 2015, the board also recommended that he undergo an updated substance abuse evaluation at a JLAP-approved facility and comply with whatever conditions are recommended pursuant to that evaluation.

The court ordered an evaluation

On June 11, 2018, respondent submitted to a three-day evaluation at the Professionals’ Wellness Evaluation Center (“PWEC”) in Alexandria, a facility approved by JLAP. On June 20, 2018, PWEC released its report, indicating that respondent’s hair test was positive for opiates, despite his claim that he was no longer taking opioid pain medication, and that respondent has an untreated substance use disorder which will require long-term inpatient treatment at a JLAP-approved facility.

His response

In his response, respondent states that he suffered severe pain after falling in his kitchen in January 2018, causing injuries to his head, neck, and back. To relieve the pain, he took the remains of an old prescription for hydrocodone that he had in his medicine cabinet. However, respondent represents that he did not disclose his use of hydrocodone when he was evaluated at PWEC in June 2018 because he did not recall this accident; instead, his memory of the accident was only triggered when he received the results of his hair test, which was positive for recent use of hydrocodone. Respondent concludes that he is willing to undergo regular “stand alone” monitoring for drug and alcohol use, but that he is not in need of inpatient substance abuse treatment.

The court

In this case, respondent, like a growing number of people in our country, developed an addiction to medications that were validly prescribed by his physician to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly requires long-term inpatient treatment to successfully address this unfortunate disease, but thus far he has been reluctant to agree to participate in such treatment. In order to fulfill our role of ensuring the public is protected, we conclude it is necessary to fashion a suspension which is responsive to respondent’s current misconduct and provides him with an adequate opportunity to address his substance abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year and one day. In view of the mitigating factors, we will defer all but ninety days of this suspension, subject to a two-year probationary period and with the condition that during the active period of his suspension, respondent shall enter into long-term inpatient treatment at a JLAP-approved facility, as recommended by PWEC. Thereafter, he shall comply with any and all recommendations made by the treatment facility and JLAP, including, but not limited to, entering into a JLAP recovery agreement. Should respondent fail to comply with any of these conditions or commit any misconduct during the probationary period, the ODC shall have the right to file a summary petition in this court requesting that the deferred portion of respondent’s suspension be made immediately executory, or requesting other relief as appropriate.

Justice Crichton dissented

I dissent in what I believe is a premature disposition of respondent’s case. The majority’s per curiam ignores respondent’s prayer for an opportunity to be heard as to the January 2018 incident and the June 2018 PWEC report. Specifically, in my view, respondent should be allowed the opportunity to confront and cross-examine the methodology and results of the test as well as an opportunity to provide an explanation under oath as to these issues. Anything less offends fundamental due process, which we must extend to all parties, including lawyers. Accordingly, in lieu of immediately implementing sanctions, I would instead remand the matter for an evidentiary hearing.

Two colleagues joined the dissent. (Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Under The Table

The Cincinnati Bar Association has filed a complaint alleging that a criminal defense attorney violated jail procedures by passing $11 in cash under the table to an inmate with whom she had a romantic relationship.

The incident was observed by prison officials who searched the inmate. The search revealed that he possessed smokeless tobacco (which was seized as contraband) but did not locate the cash. 

The attorney was charged with a criminal offense in passing the tobacco but pleaded guilty to a second degree charges of passing the $11.

If the above link does not work, the complaint involving attorney Virginia Riggs-Horton can be accessed here. (Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 18, 2018

Reprimand Insufficient

Dan Trevas reports on the Ohio Supreme Court web page

The Ohio Supreme Court today suspended former Mahoning County Commissioner and Youngstown Mayor John A. McNally from practicing law based on criminal convictions for his role in the “Oakhill scandal.”

In a per curiam opinion, the Supreme Court disregarded the Board of Professional Conduct’s recommendation that McNally receive a public reprimand, and issued a one year suspension, with six month stayed.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and R. Patrick DeWine joined the opinion. Justices Patrick F. Fischer and Mary DeGenaro did not participate in the case.

Opposition to Property Purchase Led to Criminal Convictions
The Mahoning County Bar Association alleged in 2017 that McNally violated multiple rules governing the conduct of Ohio attorneys when he served as a county commissioner in 2006 and 2007. McNally opposed the county’s purchase of the Oakhill Renaissance Center. A subsequent criminal investigation into the efforts by McNally and other local officials to thwart the purchase led to McNally pleading guilty to four misdemeanor charges.

Since the early 1980s, the Mahoning County Department of Job and Family Services had been located in spaced leased in the Ohio Valley Mall Company’s Garland Plaza. In 2006, the Southside Community Development Corporation, owners of Oakhill, sought to sell the county the property, which the county intended to use to relocate the job and family services offices. The Oakhill owners filed for bankruptcy, and the majority of county commissioners voted to purchase Oakhill and assume its debt.

McNally, the county treasurer, and the county auditor filed objections in the bankruptcy case, seeking to prevent the sale. The Carfaro Company, the Ohio Valley Mall’s parent company, also filed legal actions to block the sale and prevent the department’s relocation.

In 2008, the Youngstown Vindicator began to publish articles suggesting McNally and others acted unethically when opposing the Oakhill purchase. A special prosecutor was appointed to investigate, and in 2010, McNally, the county treasurer, and the county auditor were indicted on multiple criminal charges.

While the 2010 indictment against McNally was later dismissed, he was indicted again in 2014. In 2016, McNally pleaded guilty to four misdemeanors, including attempted unlawful use of a telecommunications device, attempted disclosure of confidential information acquired in the course of a public official’s duties, and making false statements in an official proceeding. The other counts were dismissed. He was sentenced to one year of community control, and agreed to place his law license on inactive status during that period. He also was ordered to perform 20 hours of community service, and to pay a $3,500 fine and $3,098 in court costs.

McNally completed his sentence, and he was returned to active status as a lawyer.

Bar Association Files Complaint
The county bar association filed a complaint against McNally with the Board of Professional Conduct alleging eight rule violations. The parties stipulated to the facts and the misconduct as well as to aggravating circumstances and mitigating factors that the board considers when recommending a sanction. A three-member board hearing panel agreed with the parties’ request to dismiss six of the eight charges, and found that McNally engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that he committed an illegal act that reflected on his honesty and trustworthiness.

Court Considers Sanction
The board recognized that rule violations involving dishonesty typically lead it to recommend that the Supreme Court suspend a lawyer from practicing law. But citing evidence, that McNally introduced at his disciplinary hearing to challenge the facts of his criminal convictions, the board concluded that McNally’s conduct should not lead to a suspension of his license to practice law.

The Court, however, recognized that once a lawyer pleads guilty to criminal charges, the facts of those charges cannot be challenged in a related attorney-discipline proceeding.

“Those facts cannot be explained away by the parties or the board,” the Court stated.

The opinion noted that among the charges McNally contested was giving false testimony in an official proceeding. The Court stated that had McNally told the truth during the proceeding, it would have raised additional questions about his association with the Carfaro Company and his motives for opposing the Oakhill purchase.

The Court concluded that the “seriousness of McNally’s conduct” warranted the suspension, which was stayed for six months on the condition that he not commit further misconduct. If he fails to comply with the condition, the stay will be lifted and he must serve the full year.

2017-1743. Mahoning Cty. Bar Assn. v. McNally, Slip Opinion No. 2018-Ohio-3719

(Mike Frisch)

September 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 16, 2018

Lifestyles Of The Rich And Suspended

A justice of the Massachusetts Supreme Judicial Court adopted recommendations of its Board of Bar Overseers and ordered suspension of two attorneys in a 72-page opinion

This matter came before me on an information and record of proceedings pursuant to S.J.C. Rule 4:01, § 8(6), and a recommendation and vote by the Board of Bar Overseers (board) that respondent Gerald L. Nissenbaum be suspended from the practice of law in the Commonwealth for a period of three years for multiple instances of misconduct. These included knowing misrepresentations of fact to a judge of the Probate and Family Court and before the Appeals Court; "improperly disparaging the presiding judge" in a guardianship case (in which Nissenbaum publically [sic] represented the ward and also had an "agreement of representation" with the ward's sons; making knowingly false and disparaging remarks in two motions to have the judge recused after the judge declined to approve what he viewed as excessive fees in the guardianship case; charging and collecting ''clearly excessive fees"; and engaging in a conflict of interest involving his former clients (the sons). 

As set forth more fully below, Nissenbaum was a highly-successful domestic relations attorney.

The (not my) three sons had retained him to assist with their father's financial affairs. 

Kenneth Simon Sr. (Kenneth Sr.) was in poor health and was living in a nursing home on Cape Cod. The brothers told Nissenbaum they were concerned that his much younger wife, Anne Flaherty Simon (Anne), was dissipating his assets and that his health care costs were not being paid. At the time, the Simon sons were estranged from their father because they had disapproved of his marriage to Anne; they did not attend the wedding and had not had much contact with him after the marriage. The sons told Nissenbaum they had become concerned when the nursing home contacted them to say that the facility had not been receiving payments. After speaking with the Simon sons, Nissenbaum recommended appointing a temporary guardian for Kenneth Sr...

The sons wanted the eldest, Kenneth Jr., to be appointed as guardian, but Nissenbaum advised them that a judge probably would not agree to that arrangement because of the conflict of interest with Anne.

The guardian was also prosecuted

The board recommended also that respondent James Veara be suspended for a period of one year and one day for his role in the joint misconduct. More particularly, the board found that Veara failed to correct what he knew to be Nissenbaum's deliberate misrepresentations that Nissenbaum was no longer representing the sons; made knowingly false and disparaging statements impugning the integrity of the presiding judge in a case; and charged and collected clearly excessive fees.

Nissenbaum was admitted in 1967.

He persuaded a judge to appoint Veara to serve as a guardian and did not disclose that he had never previously served in that capacity.

Although his usual fee for legal work was from $100 to $300 per hour, he told Nissenbaum that he would charge an hourly rate of $400 if he were appointed as temporary guardian for Kenneth Sr. Veara decided to increase his rate "simply because he knew he could and because the ward could afford it.'' Nissenbaum did not inform the sons of Veara's lack of experience or that Veara was charging a significantly higher rate than his usual hourly rate.

Veara in turn retained Nissenbaum as counsel so both could water themselves at the trough. 

Throughout the guardianship, Nissenbaum and Veara had paid themselves from the margin loan on Kenneth Sr. 's brokerage account. Each also kept an "evergreen retainer," which never fell below a certain sum; Nissenbaum replenished his retainer from Kenneth Sr. 's estate at least twice.

The pie

When the guardianship began, Kenneth Sr. 's assets totaled approximately $4.5 million. Soon after his marriage to Anne in July, 2004, Kenneth Sr. had transferred title to his house in Harwich Port to himself and Anne as tenants by the entirety. In September, 2004, he executed a will that left Anne $150,000.00, the Harwich Port house, and $120,000 in an education trust; he executed a declaration of trust leaving the residue of his estate to his grandchildren.

On the day that he was appointed, Veara retained Nissenbaum as his counsel. That same day, Nissenbaum filed the previously prepared complaint for divorce on behalf of Veara. Veara did not consult with Kenneth Sr. and did not read the divorce complaint before authorizing Nissenbaum to file it.

In fact, Veara at that point had never met Kenneth Sr.

When they actually did meet at a later hearing, Kenneth Sr. expressed his love for Anne and eschewed any desire for a divorce.  

The plot thickened

Nissenbaum filed, on Veara's behalf, a petition to prepare a new estate plan for Kenneth Sr. The proposed plan would have revoked Kenneth Sr.'s will and replaced it with one that created a family trust for the lifetime benefit of Kenneth Sr., and thereafter his sons, and would have created a real estate trust to hold title to the house in Harwich Port. The next day, Nissenbaum filed, on Veara's behalf, a complaint to annul Kenneth Sr. 's marriage to Anne; the complaint alleged that the marriage had resulted from Anne's "deceit and imposition, fraud and duress," and that the "essentials of the marriage relationship" had been so "abrogat[ed] and vitiat[ed)" that no marriage should be deemed to have existed. Kenneth Sr. was not consulted about a new estate plan or an annulment. Nissenbaum also filed a motion to amend the earlier complaint for divorce to add grounds of cruel and abusive treatment. 

 A hearing was held on a motion to hold Anne in contempt and on the guardianship status

The judge then asked Nissenbaum if he continued to represent the Simon sons. Nissenbaum responded, "No, I represent Mr. Veara now. The children are not parties to the case." After confirming the details of the manner in which Veara had been appointed, the judge asked Nissenbaum about the status of his relationship with the Simon sons after Veara was appointed. Nissenbaum replied, "Well, in terms of -- well, I don't represent them in this case."

He was still billing the sons for his services.

By late October, 2005, Kenneth Sr. 's health was declining. At the end of the month, he was placed on ventilation and lifesustaining medications. On October 22, 2005, Nissenbaum revised a draft motion, prepared by his associate, to enter "do not resuscitate" and "do not intubate" orders concerning Kenneth Sr.'s care.

One less witness, I suppose. He died on November 2. 

Then the fees

Veara charged a total fee of $126,813.45 to Kenneth Sr. 's estate. Veara also charged the estate $21,169.28 in expenses for payments he made to a private investigator to investigate whether Anne had been engaged in illegal activities, and to a research firm to determine whether an annulment action would survive the death of one of the parties. Veara had not consulted with Kenneth Sr. about these activities. Veara's first and final account also charged the estate $375,177.03 for legal fees paid to Nissenbaum, at a rate of $600 per hour. Together, these fees totaled $523,159.76.

For a temporary guardianship that lasted 83 days. 

Anne deigned to object and a judge noticed

When Veara confirmed that he had been charging approximately $375 per hour for his services as a court appointed guardian, Judge Scandurra asked "Are you kidding?" When the judge noted that Veara was seeking an additional $45,000 in fees that were not covered in the invoices he had submitted, Veara explained that the extra fees sought accounted for his activities after Kenneth Sr. 's death to "wind up affairs." After Veara also confirmed that Nissenbaum had charged $600 per hour, Judge Scandurra responded "Gentlemen, I'm not going to sign this motion. This is an insult and an affront to the Court," and added, "you'll have to have a hearing on this."

A Master actually approved the fees (two of the sons objected and cited conflicts of interest) but the judge disagreed.

Nissenbaum then sought that judge's recusal

The motion stated that, at the September hearing, Judge Scandurra had "verbally attack[ed) " Veara and Nissenbaum "in a loud, aggressive, often angry voice, repeatedly chastising them for charging hourly rates which Scandurra, without benefit of a trial, concluded could never be justified and, worse, were an 'insult to the court! ' '' The motion claimed that Judge Scandurra's conduct "went beyond intentionally inflicting embarrassment on counsel in front of others then in the courtroom to being an embarrassment to the court, itself." "This was all the more shocking to counsel because, until that point in time, they held Scandurra in high regard."

Another judge (Judge Steinberg) held an 11-day hearing on the fee request and issued an order concerning the already fully-paid amounts

He ordered Veara to return $107,741.75, and Nissenbaum to return $199,859.64, to Kenneth Sr. 's estate. He also determined that the $21,169.28 in charges from the private investigator and the research group were unreasonable, and ordered Nissenbaum and Veara to reimburse Kenneth Sr. 's estate for those charges, with each to pay one half of the amount.

The attorneys appealed and sought to recuse Judge Steinberg. They lost on both counts.

Judge Scandurra filed the bar complaint in 2008. Bar Counsel filed charges in 2014.

Justice Lenk on Nissenbaum

the description of "charging an excessive fee" does not adequately convey the nature of the respondents' misconduct. The act of attempting to wring the largest possible amount of money from his client's elderly ward, in the months before his death, for his own financial gain, as described in Nissenbaum's own words, is abhorrent on its own and cannot but harm the public's perception of the reputation and integrity of the bar. Particularly where there has been extensive publicity surrounding the respondents' actions, it would do additional substantial harm to the perception of the public and the bar, and serve to encourage, rather than deter, similar misconduct by others, if Nissenbaum simply were allowed to evade any sanction because of his last minute retirement, after vigorously pursuing litigation challenging the hearing committee's and the board's findings for approximately three and one-half years, and having previously pursued a strategy in the Probate and Family Court of what Judge Steinburg described as filing actions in ''bad faith,'' where the respondents' "egregious litigation conduct was designed to make the proceedings as costly as possible in an attempt to force the Simon children to withdraw or abandon their objections."

She concluded that the evidence supported the conclusion that Veara knew Nissenbaum falsely denied representing the sons and failed to correct that falsehood.

Cape Cod Times reported on the lower court return of fees order and noted that Anne had served time for operating a Cape Cod prostitution ring. The same source reported that the attorneys accused her of marrying Kenneth Sr. for his money and plotting to kill him with a Viagra overdose or by pushing him down a flight of stairs when he was drunk. 

Huffington Post covered Nissenbaum's book on high-end divorce matters entitled Love Sex and Money: Revenge and Ruin in the World of High-Stakes Divorce

Nissenbaum’s clients are the ultra-rich, he explains, “because only the rich can pay what I charge: $700 an hour, which is tops for this kind of work in Boston and in most places around the country.” His clients must also have $5 million in assets, and many have another zero or two after the 5. They have so much money, he says, that they “don’t mind my fees and expenses.” One case — with a twenty-four-day trial — earned him $2 million. “One case went on for seventeen years,” he writes. “My fee? A cool and hard-earned million. For a client who left happy.”

If the hard luck of rich folks in extremis is your thing, the fast-paced, sometimes sexually explicit case histories in Sex, Love and Money will take your mind off your troubles and make you glad, once and for all, that you don’t have $5 million in bank — because, that way, you know your spouse won’t ever hire Nissenbaum to divorce you.

(Mike Frisch)

September 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Sad Ending To A Promising Career

The Virginia State Bar Disciplinary Board accepted the revocation of an attorney's license.

The Roanoke Times reported 

A Richmond attorney who gained national exposure five years ago for helping incarcerated juvenile offenders as a University of Virginia law student pleaded guilty Thursday to three felonies related to smuggling an addictive opioid drug and a cellphone to an inmate at Riverside Regional Jail serving 30 years for murder.

In a plea agreement between the prosecution and defense, Dana Lauren Tapper, 30, of Richmond, pleaded guilty in Prince George Circuit Court to one count each of providing a prisoner with a cellphone, conspiracy to provide the prisoner with a cellphone and conspiracy to provide a controlled substance to the prisoner.

In exchange for her pleas, Assistant Prince George Commonwealth's Attorney Mark Bernard withdrew three accompanying felony charges.

In accordance with the agreement, Circuit Judge Allan Sharrett sentenced Tapper to 20 years in prison with all but three months suspended. The judge allowed a defense request that Tapper begin serving her time on Aug. 13.

The charges against Tapper, who received national attention in 2013 when she appeared on "The Ellen DeGeneres Show" and was handed two $10,000 checks in a surprise gift, arose from two incidents five days apart at Riverside Regional Jail involving an inmate named Karon Porter. Tapper provided Porter a cellphone on Dec. 7 and passed him Suboxone strips on Dec. 12, according to a summary of evidence.

Suboxone is a frequently abused narcotic, Bernard told the court. It is typically used in the management of opioid abuse and withdrawal but can be abused resulting in addiction.

Tapper was not the attorney of record for Porter, but she went to visit him at Riverside Regional Jail 38 times between November 2016 and February 2018, according to jail records.

The investigation into Tapper's illegal activities at the jail, which is in Prince George, was investigated by Chesterfield County police who received a tip from another inmate about Tapper and Porter.

Tapper was represented Thursday by attorneys Craig Cooley and Chris Collins. Both the prosecution and defense emphasized in court Thursday there was no evidence that Tapper was having a sexual relationship with Porter.

Porter, 28, was sentenced in September to 30 years in prison on a felony murder charge for killing a third-generation Marine officer in a horrific crash while fleeing police in Chesterfield County in March 2013.

When asked by the judge if the defendant had anything to say, Tapper declined to comment. Tapper also declined to comment to reporters as she left the courthouse.

Collins said that Tapper plans to surrender her law license now that she has pleaded guilty.

Tapper was recognized in 2013 as a third-year law student for volunteering her time outside of her classes at the UVa School of Law "to help children transition out of juvenile detention centers in Virginia," according to a story on the school's website at the time.

During her televised appearance, DeGeneres presented her with a gift of $10,000 contributed by Shutterfly, an online photo service. "That'll help pay for your bar exam and other expenses, right?" DeGeneres said to Tapper.

 Moments later, a Shutterfly representative walked on stage and handled Tapper an oversized check for an additional $10,000.

Tapper worked with the JustChildren program at the Legal Aid Justice Center and also participated in the law school's Child Advocacy Clinic, which provides legal assistance to troubled low-income children.

A friend of Tapper, Kathryn Cragg, who also was a third-year law student at the time, had written DeGeneres a letter about Tapper, which DeGeneres read on the show.

"Most law students are lured in by promises of large corporate salaries to help pay off their debt, but Dana has been steadfast in her commitment to helping those less fortunate," Cragg wrote in her letter.

In the story for the school's website, Tapper was quoted as saying, "I want to be an advocate for kids. I've met some of the most incredible people. They have just this incredible untapped potential. I would like to help them realize it."

Tapper, who at the time of her arrest lived in a Richmond apartment in the 2300 block of East Cary Street, operated a law practice at 2222 Monument Avenue in the city. It has since closed,

WRIC ABA 8 had additional coverage of the conviction. (Mike Frisch)

September 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 15, 2018

A Collateral Consequence For Paul Manafort

When a member of the District of Columbia Bar pleads guilty to or is adjudicated guilty of a crime, the following provisions of D.C. App. R. XI, section 10 are applicable

 (a) Notification. If an attorney is found guilty of a crime or pleads guilty or nolo contendere to a criminal charge in a District of Columbia court, the clerk of that court shall, within ten days from the date of such finding or plea, transmit to this Court and to Disciplinary Counsel a certified copy of the court record or docket entry of the finding or plea. Disciplinary Counsel shall forward the certified copy to the Board. Upon learning that the certified copy has not been timely transmitted by the clerk of the court in which the finding or plea was made, or that an attorney has been found guilty of a crime or has pleaded guilty or nolo contendere to a criminal charge in a court outside the District of Columbia or in any federal court, Disciplinary Counsel shall promptly obtain a certified copy of the court record or docket entry of the finding or plea and transmit it to this Court and to the Board. The attorney shall also file with this Court and the Board, within ten days from the date of such finding or plea, a certified copy of the court record or docket entry of the finding or plea.
  (b) Serious crimes. The term "serious crime" shall include (1) any felony, and (2) any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."
  (c) Action by the Court—Serious crimes. Upon the filing with this Court of a certified copy of the record or docket entry demonstrating that an attorney has been found guilty of a serious crime or has pleaded guilty or nolo contendere to a charge of serious crime, the Court shall enter an order immediately suspending the attorney, notwithstanding the pendency of an appeal, if any, pending final disposition of a disciplinary proceeding to be commenced promptly by the Board. Upon good cause shown, the Court may set aside such order of suspension when it appears in the interest of justice to do so.

According to the web page of the D.C. Bar, among the membership is

Paul J Manafort Jr. 

Membership Type: INACTIVE ATTORNEY 
Membership Status: Good Standing 
Date of Admission: 01/20/1979 

Thus, we can expect an order suspending him in the District of Columbia shortly.   His inactive status does not deprive the court of the jurisdiction to suspend and disbar him. 

As the crimes for which he has been adjudicated guilty include offenses that involve moral turpitude per se, he will be disbarred "as night follows day" unless he is pardoned. 

If a pardon is granted, he will nonetheless be subject to discipline although not automatic and summary disbarment. (Mike Frisch)

September 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 14, 2018

Will Rogers, ADHD And Bar Discipline

The Iowa Supreme Court has imposed a one-year suspension  of an attorney

Royce D. Turner, over a span of twenty months, was repeatedly rebuked by state and federal judges for missing hearings and violating court rules. He was found in contempt several times. Three of his clients were arrested and two were jailed for missing hearings he overlooked. Despite an ongoing audit, Turner continued to flout basic requirements for client trust accounts.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Turner alleging multiple violations of the Iowa Rules of Professional Conduct. He delayed responding to the Board’s inquiries and complaints. Our court imposed a five-month interim suspension to protect the public. We permitted Turner’s return to practice with the help of an experienced attorney under stipulated limitations pending resolution of the disciplinary charges.

The parties submitted a stipulation of facts. A division of the Iowa Supreme Court Grievance Commission found violations of numerous rules. Noting Turner’s inexperience and attention deficit hyperactivity disorder (ADHD), the commission recommended a three-month suspension of his license to practice law with conditions on his reinstatement. The Board recommends a suspension of twelve to eighteen months. Based on our de novo review, we now suspend Turner’s license to practice law for one year from the date of this opinion with conditions on his reinstatement.

Inexperienced sole practitioners who lack mentors and take on cases without the requisite experience are at greater risk of making mistakes. Any Iowa lawyer should be concerned about receiving one rebuke from a judge. Attorneys should view a single mistake as a wakeup call to reexamine practices or get help to avoid further missteps. Continuing to make the same mistakes without correcting behavior invariably leads to more trouble, as shown here. According to the adage commonly attributed to Will Rogers, “good judgment comes from experience, and a lot of that comes from bad judgment.” We hope Turner gains better judgment from his bad experiences.

ADHD may mitigate if treatment is sought

We have recognized that “[p]ersonal illnesses, such as depression or attention deficit disorder, do not excuse a lawyer’s misconduct but can be mitigating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008). The key for mitigation is that the lawyer proactively seeks treatment to address the condition and avoid reoccurrence of the misconduct. See Clarity, 838 N.W.2d at 661 (“To be considered in mitigation, the alcoholism must have contributed to the ethical misconduct, and the lawyer must undertake rehabilitative efforts to control his addiction.”); see also Dolezal, 841 N.W.2d at 129 (noting that when an attorney receives treatment for an illness, “his efforts to get healthy must be considered in fashioning an appropriate sanction” (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 800 (Iowa 2010))). Because Turner attends counseling sessions and takes medication, we consider his depression and ADHD in mitigation.

The attorney was admitted in 2013. (Mike Frisch)

September 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Jumping The Gun

The Delaware Supreme Court has approved an affidavit of an applicant who passed the Bar exam in 2016 but had not yet been admitted.

The affidavit acknowledged that the applicant engaged in unauthorized practice by accepting fees in two legal matters and forging a client's name.

She pleaded guilty to misdemeanor theft.

The agreement provides that she refrain from future unauthorized practice and withdraw her application for Delaware admission. (Mike Frisch)

September 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

SOBB Brother

The Illinois Administrator has filed a complaint alleging misconduct that led to a criminal conviction for an attorney's role in posting bond for an accused drug trafficker

In August 2011, Troy Clark ("Clark") was arrested and charged in the Circuit Court of Cook County, Illinois, with offenses relating to trafficking controlled substances in the matters entitled People of the State of Illinois vs. Troy Clark, case numbers 11 CR 15697, 11 CR 15698, 11 CR 15699, 11 CR 15700 and 11 CR 15701 ("Clark's cases"), and, on August 27, 2011, the court in his cases set his bond at $400,000 cash, with the requirement that a source of bail bond hearing ("SOBB hearing") be conducted before bail could be posted for Clark.

In late September or early October 2011, Clark's girlfriend, Tamira Smyth ("Smyth"), was introduced to Respondent. At or about that time, Smyth and Respondent agreed that Respondent would assist Smyth in posting funds for Clark's bond. Thereafter, Smyth delivered hundreds of thousands of dollars in cash to Respondent in installments, and Respondent devised a transaction in which Smyth would not be identified as the source of funds for Clark's bond.

In or about October 2011, Respondent contacted Kevin Frank ("Frank") and Kenneth Lukowski ("Lukowski"), employees of Forshay Land Title & Appraisal Services, Inc. ("Forshay Land Title"), a business located in Roscoe, Illinois. At or about that time, Respondent promised to pay thousands of dollars to Lukowski, and, to explain the source of $400,000 being available for Clark's bail, Lukowski agreed to testify under oath at a SOBB hearing in Clark's cases about a fictitious transaction regarding property that Lukowski owned at 12746 Waltham Close in Roscoe ("Waltham Close property").

Lukowski testified at the hearing and

 On or about October 20, 2011, in reliance on Lukowski's false testimony and the purported promissory note and other fictitious documents, Judge Flood entered an order allowing funds from the purported loan transaction between Lukowski and Forshay Storage & Van to be used to post bond in Clark's cases.

The State conducted an investigation of the transaction and

 On July 26, 2018, pursuant to a plea agreement, Respondent pled guilty to forgery and subornation of perjury, as charged in Counts 7 and 8 of the indictment in case number 12 CR 12822.

 On July 26, 2018, the Honorable Alfredo Maldonado entered a judgment of conviction against Respondent as to Counts 7 and 8 of the indictment in case number 12 CR 12822, and sentenced Respondent to a concurrent term of two-years probation, with conditions including completion of the TASC (Treatment Alternatives for Safe Communities) Treatment Program. On the motion of the State, Judge Maldonado dismissed all of the other counts of the criminal indictment returned against Respondent.

(Mike Frisch)

September 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

All That Jazz: Spoliation In Big Sky Country

The Montana Supreme Court exercised supervisory control in a matter in which it is alleged that Montana State University - Bozeman negligently hired and failed to protect a student from a predatory professor. 

we find that exercise of supervisory control is necessary and proper and accordingly reverse and remand for further proceedings.

The Professor

In 2006, MSU hired Shuichi Komiyama as a teaching professor in the Music Department of the MSU College of Arts and Architecture (A&A). At pertinent times, Komiyama was also the Director of the MSU Orchestra and Jazz Band.

The lower court action

By order filed April 11, 2018, the District Court summarily adjudicated liability against MSU on Plaintiff Breanne Cepeda’s asserted negligence claim as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(e).

The court vacated the default sanction.

Concerns about the professor's conduct from many sources led to an investigation by in-house counsel and a spoliation issue

More troublesome is MSU’s failure to preserve all emails associated with the email accounts of Leech, Agre-Kippenham, Letendre, and Komiyama music students other than Cepeda, that may have existed on the MSU email server or faculty computers on June 15, 2011. Apart from an unverifiable, self-serving showing that they likely contained no relevant information other than as referenced in emails retained pursuant to its internal investigation, MSU’s affidavit showings, through in-house counsel, were at best vague or ambiguous as to when unpreserved emails associated with the MSU accounts of Leech, Agre-Kippenham, and Letendre were in fact irrecoverably lost. Further, other than a showing that Komiyama and Cepeda primarily, if not exclusively, communicated by private email, MSU made no particularized evidentiary showing in response to Cepeda’s sanctions motion as to whether and to what extent, if any, emails associated with MSU email server accounts assigned to Komiyama music students would still have been present on the MSU server on June 15, 2011.

Though Leech and Agre-Kippenham retired in May 2011, MSU’s measured evidentiary showing and arguments evince tacit acknowledgment that it did not preserve all of the emails associated with the MSU accounts of Leech, Agre-Kippenham, and then-still-active Letendre that existed on June 15, 2011. Substantial evidence thus supports the District Court’s finding that MSU retained only the faculty and student emails that it deemed relevant to its internal investigation. Based on MSU’s vague and ambiguous evidentiary showing, we cannot say that the District Court’s implicit finding—that MSU breached a duty to take reasonable action to preserve information at least potentially relevant to a reasonably foreseeable adverse claim—was clearly erroneous.

But

However, the balance of the District Court’s sanctions analysis is more problematic. Without any predicate finding, the court insinuated that MSU failed to preserve the entirety of the subject faculty and student emails in bad faith, i.e., with the intent or purpose of concealing unfavorable evidence. Except for disputable evidence of a breach of a duty to preserve the entirety of music department faculty and student emails, neither the District Court nor Cepeda have cited any non-speculative direct or circumstantial evidence indicating that MSU knowingly failed to preserve any potentially relevant student or faculty email communications with the purpose or intent of concealing unfavorable evidence. To the contrary, MSU’s failure to preserve occurred in the midst of MSU’s own aggressive investigation of Komiyama at a time when the decision to reinstate or terminate him from employment hung in the balance. The only real-time assessment reasonably supported by the limited record before us was that MSU was actively searching for evidence manifesting the propriety or impropriety of Komiyama’s conduct and relationships with students, including Cepeda, in the face of serious and already significantly-substantiated allegations of misconduct. Beyond rank speculation and conjecture, neither the District Court nor Cepeda cited any substantial direct or circumstantial evidence that would support a finding or inference that MSU knowingly failed to preserve evidence with purpose or intent to conceal unfavorable evidence.

Thus

We hold that exercise of supervisory control is necessary and proper on the ground that this case presents a significant question as to whether the District Court is proceeding  under a mistake of law which, if uncorrected prior to final judgment, will likely cause significant injustice rendering ordinary appeal inadequate. Upon extraordinary review, we hold that the District Court abused its discretion in imposing default judgment against MSU as a spoliation sanction under M. R. Civ. P. 37(b)-(c) and (e). We therefore reverse that portion of the District Court’s sanctions order and remand for further proceedings in the ordinary course.

The Bozeman Daily Chronicle reported on the lower court action

A Helena judge has ruled Montana State University allowed email evidence about conductor Shuichi Komiyama to be destroyed and so the university is liable in a former student’s lawsuit, which alleges the university is to blame for hiring a convicted sex offender who coerced her into having sex.

Judge James Reynolds ruled Wednesday in Lewis and Clark County District Court that whether it was done intentionally or negligently, MSU’s failure to preserve all staff and student emails concerning Komiyama “irreparably damages” the former student’s ability to make her case and to respond to MSU’s accusations against her.

Preserving relevant evidence is critical to the court’s “search for the truth,” Reynolds wrote, quoting a 2015 Montana Supreme Court decision. “’There can be no truth, fairness or justice in a civil action where relevant evidence has been destroyed before trial.’”

  MSU’s attorneys had insisted that the university did a reasonable job preserving those emails of Komiyama and other evidence that officials found relevant to the university’s internal investigation. That investigation led to the conductor being banned from campus in April 2011 and losing his job.

University attorneys argued that MSU turned over more than 1,700 pages of evidence to the student’s attorney.

They argued that when some emails were deleted or written over by the MSU computer system, it was not intentional but part of routine practice to free up space in the server a few months after students, administrators and professors leave the university.

“MSU should not get the benefit of the systematic removal of email accounts of its professors, students, and Komiyama, and be the only party to determine what was relevant,” Reynolds wrote. “MSU does not get to determine what will be relevant and important in foreseeable lawsuits.”

Relevance is a decision for trial courts, the judge wrote.

Geoffrey Angel, the Bozeman attorney for the former student, declined to comment on the judge’s ruling. Anderson Forsythe, the Billings attorney for MSU, referred questions to the university.

“MSU is still looking at the ruling, and the case is ongoing,” the university said in a written statement. “The university does not comment on pending litigation.”

Judge Reynolds ordered that MSU pay the former student’s unspecified costs and fees for her effort to seek legal sanctions. His order did not set any date for determining those costs.

The judge also rejected MSU’s effort to have the former student sanctioned for deleting some of her own email and texts. He ruled that unlike MSU, she is not a “sophisticated litigant” who should know the legal rules.

 Also, the judge wrote, MSU attorney Pam Merrell sent out a “do not destroy” notice in June 2011, two months after Komiyama was booted off campus, telling staff that a lawsuit was likely and so all email, voicemail, videos, calendars, correspondence and other evidence should be preserved. MSU had a duty to ensure that emails and texts weren’t deleted, but “allowed that very thing to happen,” the judge wrote.

The former student originally sued MSU in October 2012, charging MSU was negligent for hiring a music professor who turned out to be a convicted sex offender and who coerced her into non-consensual sex.

The erased email would have been critical for showing when MSU knew of Komiyama’s behavior, including the extent of a 2009 complaint by a former male music student, the judge wrote.

The student’s attorney argued MSU shouldn’t have allowed email accounts to be erased for Alan Leech, interim music department head; Susan Agre-Kippenhan, former dean of the College of Arts and Architecture; Diane Letendre, former Title IX director; Komiyama; Heather Bentz, former assistant dean; Merrell; and several MSU students.

Leslie Taylor, then MSU legal counsel, said in an affidavit she directed that Komiyama’s email account be retained, but the judge wrote MSU decided what was relevant and let the rest of his emails be erased. Taylor did not direct a search of Letendre’s email or save Leech’s account when he retired in May 2011.

“This Court finds troubling,” Reynolds wrote, that while MSU sent out a “do not destroy” message, it still let the system systematically delete accounts. “By allowing the systematic deletion of the email accounts, MSU was able to shape the available evidence and limit (the student’s) opportunity to present her claim.”

(Mike Frisch)

September 14, 2018 in General Counsel, Hot Topics, Music, Professional Responsibility | Permalink | Comments (0)

Thursday, September 13, 2018

Power And Responsibility

The Indiana Supreme Court has allowed suit against cities of sexual assault by its police officers

Two on-duty police officers—one in Fort Wayne and one in Evansville—sexually assaulted women, who then brought civil actions against the officers’ city employers. We address two theories of employer liability: (1) the scope-of-employment rule, traditionally called respondeat superior, and (2) the rule’s common-carrier exception, which imposes a more stringent standard of care on certain enterprises. We hold that the cities may be liable under the scope-of-employment rule and that the exception does not apply.

Resounding in our decision today is the maxim that great power comes with great responsibility. Cities are endowed with the coercive power of the state, and they confer that power on their police officers. Those officers, in turn, wield it to carry out employment duties—duties that may include physically controlling and forcibly touching others without consent.  For this reason, when an officer carrying out employment duties physically controls someone and then abuses employer-conferred power to sexually assault that person, the city does not, under respondeat superior, escape liability as a matter of law for the sexual assault.

We thus affirm the denial of summary judgment to the City of Fort Wayne on the respondeat superior issue. In doing so, we clarify when an officer’s tortious acts will fall within the scope of employment, making the city liable.

(Mike Frisch)

September 13, 2018 in Current Affairs | Permalink | Comments (0)

No Reciprocal Suspension For "Relatively Minor" Misconduct

The New York Appellate Division for the Second Judicial Department has imposed a reciprocal public censure based on a Minnesota sanction.

Among the violations

In March 2012, while he was still on probation from a 2010 disciplinary action, the respondent represented J.D. in a child visitation matter. M.S. was the court-appointed parenting consultant. DuringM.S.’s deposition, the respondent implied that M.S. had previously been accused of sexual misconduct with minors. At the hearing before the referee, the respondent testified that he recalled that M.S. had been accused of sexual contact with minors. At the conclusion of the hearing, the referee determined that the respondent had no evidence to support that recollection, that the respondent’s testimony was not credible, that the question “appeared to be intended to embarrass and humiliate” M.S., and that the question was asked without a good faith basis, thus violating Minn R Prof Conduct 4.4(a) and 8.4(d).

And

In 2013, S.A. discharged the respondent and requested that her files be returned to her. S.A. retrieved her files in May 2013. In August 2013, S.A. contacted the respondent informing him that her files were incomplete. In December 2013, the respondent located four more boxes of files and sent them to S.A.’s home. The referee determined that the respondent “failed to apply adequate reasonable actions to timely return files,” thus violating Minn R Prof Conduct 1.16(d). Among the files sent to S.A. were files belonging to other clients. By doing so, the referee determined that the respondent violated Minn R Prof Conduct 1.6(a).

Minnesota suspended him for 60 days followed by probation but

In view of the “relatively minor” nature of the misconduct underlying the Minnesota order of discipline, and the fact that the respondent does not practice law in New York and has already been reinstated in Minnesota, we conclude that a public censure is warranted.

(Mike Frisch)

September 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)