Thursday, April 26, 2018

Attorney Not Compelled To Give Evidence Against Bail Jumping Client

The Montana Supreme Court granted a writ to prevent an attorney from providing testimony in a bail jumping case

Petitioner seeks a writ of supervisory control concerning the Third Judicial District Court’s order granting the State’s motion in limine that compels Shannon Sweeney (Sweeney), an attorney, to testify against her client, Dakota James McClanahan (McClanahan), on a bail jumping charge.

The story

In May 2016, Sweeney was appointed to represent McClanahan, who was charged with possession of dangerous drugs with intent to distribute. McClanahan pled not guilty and was ultimately released after he signed the District Court’s Release Order and Conditions of Release. McClanahan did not show up to the final pretrial conference on November 16, 2016, and was subsequently charged with bail jumping.

Ed Sheehy was appointed to represent McClanahan on the bail jumping charge, and he moved to dismiss. Sheehy argued McClanahan did not have notice of the November 16, 2016 hearing. Knowledge of the final pretrial conference is a necessary element of the bail jumping charge. The District Court denied McClanahan’s motion to dismiss, concluding that the State should be allowed to introduce evidence at trial as to what, if anything, Sweeney told McClanahan about appearing at the final pretrial conference on November 16, 2016. Shortly thereafter, Sweeney sent a letter notifying the State that she would assert attorney-client privilege for any line of questioning about communications with McClanahan and the preparation of his defense.

The State filed a motion in limine and the District Court determined that Sweeney would have to testify as to whether she told McClanahan about the final pretrial conference. The State issued a subpoena directing Sweeney to appear and testify at trial. Sweeney made a motion to quash the subpoena, which was denied by the District Court.

The attorney appealed and the court held

Regardless of whether the subject statements from counsel to client in this case constituted “advice given” for purposes of § 26-1-803(1), MCA, compelling counsel to testify under these circumstances would violate her duty of undivided loyalty to McClanahan.

Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel’s duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.

Concurring opinion

My concern in this case is the statute’s prohibition on examination of an attorney about “the advice given to the client.” During oral argument, the State indicated that it wanted to ask Sweeney two questions. The first question was whether she had communicated the date of the final pretrial conference to McClanahan. I do not believe this to be legal advice. Our judicial system requires lawyers, as part of their duty of representation, to convey notice of court proceedings to their clients. If courts could not depend on this, service of notice would be required to be made personally upon all clients for all matters in every case. Consequently, it would be appropriate to ask McClanahan whether she had fulfilled this judicial function. Thus, I disagree with the Court’s conclusion that all the “statements from counsel to client in this case constituted ‘advice given’ for purposes of § 26-1-803(1), MCA.” Opinion, ¶ 14. In my view, this was a permissible inquiry.

However, at oral argument the State indicated it wanted to go further, and ask a second question—whether Sweeney had told McClanahan that he needed to attend the final pre-trial conference. An attorney’s communication about a client’s attendance at a proceeding, including whether, for whatever reason, the client should risk violating a release condition, falls into the realm of legal advice. For that reason, I believe the State’s proposed inquiry here was prohibited by the statute.

And a dissent from Justice McKinnon

I agree with the rationale employed by those courts and would hold that an attorney conveying the date of a hearing to her client is not “advice” protected by the attorney-client privilege. It is common practice for the court to notify counsel of a hearing and expect counsel to, in turn, notify her client of the proceeding. The date of a hearing is publicly available information that the attorney receives from the court, a third party. The date of a hearing does not encompass a client’s confidential information or an attorney’s advice in response thereto. Prohibiting disclosure of such information by precluding an attorney from ever being “examined” is contrary to the plain language of § 26-1-803(1), MCA...

I am mindful of the Court’s concern that the State is utilizing Sweeney, McClanahan’s attorney in the drug charge, to prove an essential element of the bail-jumping charge. Opinion, ¶¶ 14-15. I do not commend the practice of calling a defendant’s prior counsel as a witness in a bail-jumping trial. The State should make all attempts to avoid the need for such testimony. However, I can find no authority supporting the Court’s conclusion that requiring Sweeney to testify would violate her duty of loyalty to her client, and therefore cannot agree.

(Mike Frisch)

April 26, 2018 in Privilege | Permalink | Comments (0)

Uncontrolled Urges

The New York Appellate Division for the Third Judicial Department disbarred an attorney convicted of a sex offense and disbarred in New Jersey

In May 2017, the Supreme Court of New Jersey disbarred respondent due to his June 2012 felony conviction for endangering the welfare of a child in connection with his sexual conduct in the presence of a nine year-old girl...

We further note that respondent's conduct was not an isolated incident, as he admitted to masturbating in front of the child on several occasions over an approximately four-month period. Finally, as the Supreme Court of New Jersey stated in its decision, respondent utilized his position of power over a child he was entrusted to care for to take advantage and satisfy his own urges.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Who Wants To Buy This Diamond Ring?

A ring-stealing attorney gets a one-year suspension with reinstatement on a further court order from the New Jersey Supreme Court.

The Disciplinary Review Board tells the tale

On October 20, 2011, Tracy Rubinetti reported the theft of her 1.6 carat diamond engagement ring to the Mount Arlington Police Department and identified respondent as responsible for the theft. In a recorded telephone conversation with Rubinetti, respondent admitted that he had taken the ring without her permission. He admitted the same to the police, as well as the fact that he had sold the ring at a jewelry store.

The attorney was charged with theft and granted pretrial diversion.

He failed to report the criminal charges to disciplinary authorities. 

He also lied in a certification to the bar

The certification, however, contained materially false statements. Specifically, respondent had informed the police that Rubinetti had not given him permission to take or sell the ring and that he had not given her the proceeds from the sale.

He has a record of prior discipline.

Theft is bad, at least in theory

Generally, theft by an attorney results in a period of suspension, the length of which is determined by the severity of the crime and other mitigating or aggravating factors.

So is lying

Attorneys found guilty of lying to ethics authorities have received discipline ranging from a reprimand to a term of suspension.

The recommendation had dissents

Chair Frost and Member Singer voted to impose a two-year prospective suspension. Member Gallipoli voted to recommend respondent’s disbarment.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Public Defender Bait-And-Switch Draws Short Suspension

The New Jersey Supreme Court has imposed a three-month suspension of a former public defender who pled guilty to charges related to his official duties

From the report of the Disciplinary Review Board

Each of these charges related to respondent’s offer of "better representation" to indigent clients for cash payments of additional fees.

On September 12, 2016, respondent appeared before the Honorable Richard F. Wells, J.S.C., Superior Court of New Jersey, Camden County. In return for the dismissal of the superseding indictment, he entered a guilty plea to the disorderly persons offense of obstructing the administration of law or other governmental function...

During respondent’s allocution, he admitted that, at the relevant time, he served as the Pennsauken Township Public Defender and obtained clients who were both "public defender clients" and private clients. He admitted knowing that it was responsibility, as the public defender, to ensure that individuals "understood their right to a public defender, and in lieu of that, obtaining private counsel." He also admitted using another person, his co-defendant, to converse with "individuals and to obtain their representation." Even though respondent knew it was his responsibility to explain to the clients their rights, he failed to do so in order to represent the individuals as clients."

 The Office of Attorney Ethics proposed a range of sanctions from public censure to a three-month suspension

The OAE stressed that respondent’s conduct, which involved more than a single act, was "reprehensible and sustained" - a "continuing course of dishonesty," and that he abused his status as a public officer. As to mitigation, the OAE noted respondent’s lack of a disciplinary record and his agreement to forfeit his employment with the Township of Pennsauken and any future employment with the State.

The DRB recommendation was not unanimous

Member Gallipoli voted to recommend disbarment, finding despicable, the preying on such vulnerable clients. Member Zmirich voted to impose a one-year suspension. Member Rivera voted to impose a six-month suspension.

In an unrelated matter, the court followed the DRB recommendation to reduce a reciprocal sanction from Pennsylvania from a year and a day to three months. 

But in New Jersey, leniency rules the day. (Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

As Maine Goes

The Maine Supreme Judicial Court is seeking comments on a proposal to revise Rule 1.10 to allow for screening as a solution to imputed conflicts of interest

The Advisory Committee recommends amending Rule 1.10(a) to conform  to subsection (a) as currently written in the ABA Model Rules. The purpose of  the change is to adopt the screening protocols that apply to potential conflicts within a firm due to a lawyer’s former association with another firm. No other  changes are recommended, and the Committee specifically recommends  retaining for clarity the sentence currently found in Maine Rule of Professional  Conduct 1.10(d) but not found in subsection (d) of the Model Rules—"For
purposes of Rule 1.10 only, ‘firm’ does not include government agencies”—and  retaining subsection(e), not currently found in the ABA Model Rules.

Subsection (e)

If a lawyer or law student affiliated both with a law school legal  clinic and with one or more lawyers outside the clinic is required to  decline representation of any client solely by virtue of this Rule 1.10,  this rule imposes no disqualification on any other lawyer or law  student who would otherwise be disqualified solely by reason of an  affiliation with that individual, provided that the originally  disqualified individual is screened from all participation in the matter  at and outside the clinic.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Brother 's Complaint Leads To A Reciprocal Suspension

A reciprocal sanction of a six-month suspension without automatic reinstatement has been imposed by the New York Appellate Division for the First Judicial Department

Respondent was administratively suspended in Massachusetts in 2000 for failure to pay required registration fees and again in 2009 for failure to cooperate with a disciplinary investigation of an unrelated matter. Neither administrative suspension has been lifted and respondent remains suspended in Massachusetts.

In March 2010, respondent was publicly reprimanded by the Connecticut Superior Court arising from the 2009 disciplinary proceeding in Massachusetts and based upon his using client funds for his own personal purposes, as well as accepting a loan from a client without proper documentation and conflict waiver. By order dated May 29, 2012, this Court, pursuant to former Rule 603.3, imposed reciprocal discipline and publicly censured respondent (97 AD3d 117 [1st Dept 2012]).

By order entered March 28, 2017, the Supreme Judicial Court of the Commonwealth of Massachusetts for Suffolk County suspended respondent for six months for professional misconduct committed during the course of a probate proceeding.

The probate case

Respondent's discipline in Massachusetts arises from misconduct he committed in connection with a probate proceeding related to the settlement of his late father's estate. In or about 2007, the Probate Court for Suffolk County appointed respondent executor of his father's estate. Respondent and his brother were the only beneficiaries of the estate. As executor, respondent was required to file both an inventory and an accounting of the estate, which he failed to do, despite repeated demands from his brother.

In September 2008, several months after the accounting was due, the court ordered respondent to file the inventory and accounting by November 28, 2008 but respondent failed to do so. In or about February 2009, respondent's brother moved to have him held in contempt. Respondent failed to appear at the March 12, 2009 contempt hearing and he was found in contempt for failing to comply with the court's order directing him to submit an inventory and accounting for the estate. He did not appeal this finding. Respondent was directed to pay $500 in attorney's fees and fined $50 per day until the inventory and accounting were filed. The contempt hearing was continued on May 7, 2009 but respondent again failed to appear on that date and the court issued a capias and a further judgment of contempt by which respondent was ordered to pay $2,500 forthwith. The $50 per day fine remained in effect. The contempt hearing was continued on July 9, 2009 and again, respondent failed to appear. He was again found in contempt and ordered to pay attorney's fees of $1,000 and $5,500 in sanctions to his brother and a second capias was issued for his arrest.

In or about December 2009, respondent prepared an inventory, a proposed accounting which he demanded his brother's attorney assent to within seven days, absent which he would file them with the court, and paid $500 in partial payment of the attorney's fees awarded under the contempt judgments. Counsel required more time to review both and raised questions about certain items in the proposed accounting. Respondent did not respond to this inquiry and on December 29, 2009, he filed the inventory but not the proposed accounting, which, according to the Hearing Officer was improper in form, inaccurate and incomplete.

In September 2013, after learning that his brother filed a request for investigation with the Massachusetts Bar Counsel, respondent filed what he styled as a "revised first and final account" for his father's estate and a petition for an order of complete settlement, in response to which his brother filed objections. In April 2014, respondent resigned as executor of his father's estate. At the time of the disciplinary proceedings, no successor had been appointed, the estate had not been fully settled, respondent had not made any further payments toward the attorney's fees or sanctions imposed by the probate court, and the contempt findings against him had not been purged.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

More Than Avoidance

The Indiana Supreme Court suspended an attorney without automatic reinstatement

We find that Respondent, Joseph Patrick Hudspeth, engaged in attorney misconduct by neglecting clients’ cases, making dishonest statements to current and prospective clients, and failing to timely respond to the Commission’s demand for information. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

There were two client complaints, failure to respond and

Two websites maintained by Respondent falsely represented his experience, specialization, and other aspects of his legal practice. More specifically, Respondent falsely claimed that “he had 35 years of experience in the [social security] industry,” falsely used the plural “attorneys” to describe the members of his firm even though Respondent was a solo practitioner, and falsely claimed to be a specialist in areas of the law in which he held no certification of specialty (and, in most instances, had little or no experience).

Sanction

we cannot subscribe to Respondent’s reductive characterization of his misconduct as “avoidance.” (Pet. for Review of Sanctions at 10). This argument simply fails to account for Respondent’s affirmative, willful, and repeated acts of dishonesty to his clients and to the public.

The parties’ respective positions on sanction differ largely on the question of whether Respondent should be suspended with or without automatic reinstatement. Respondent’s pattern of dishonesty, which Respondent employed largely to mask his own professional shortcomings, compels us to conclude that a significant period of suspension is warranted and that Respondent must be required to undergo the reinstatement process before resuming the practice of law.

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Fee Advance Misappropriation Gets Attorney Disbarred

The District of Columbia Court of Appeals has disbarred an attorney

In this case, the Board on Professional Responsibility concurred with the Ad Hoc Hearing Committee’s findings and recommended discipline. In its report, the Board acknowledged that the Ad Hoc Hearing Committee found that respondent Cynthia Malyszek had committed numerous violations in the course of her representation of three clients; however, in accepting the recommendation of disbarment the Board relied on the factual findings that respondent engaged in at least reckless misappropriation of client funds in the Mills matter.  Specifically, respondent failed to deposit the retainer she received from her client Ortez Mills into a trust account and instead commingled the unearned fees with her own funds in her operating account. Further, although respondent had only earned part of the retainer, the operating account fell far below the amount owed to Mr. Mills and was overdrawn on a day when, as respondent acknowledged, she owed Mr. Mills $990 in unearned fees. Finally, respondent failed to return the unearned fees to Mr. Mills upon his request, resulting in his contacting Disciplinary Counsel.

Sanction

While respondent did file exceptions, she failed to file her brief as directed, and most of her exceptions focus on the two matters that were not relied on by the Board to support its recommended sanction. As to the Mills matter, respondent merely asserted that the recommended discipline of disbarment was too harsh; her exceptions do not address her actions in the Mills case and fail to provide a basis for this court to depart from the Board’s recommendation.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 25, 2018

An Alleged Theft Leads To Resignation

A New York Town Court Justice who is also an attorney has resigned in the face of an indictment as stipulated to by the Justice and the Commission on Judicial Conduct.

NYup.com reported

Authorities say a suburban Albany town justice and a lawyer have been charged with stealing more than $4 million from the family trusts of three sisters.

New York Attorney General Eric Schneiderman says 57-year-old Richard Sherwood and 59-year-old Thomas Lagan were arrested Friday on charges including grand larceny and scheme to defraud.

Authorities say the men were business associates who devised a scheme to steal from trusts set up by local philanthropists Warren and Pauline Bruggeman. Schneiderman says the thefts also targeted trusts for Pauline Bruggeman's two sisters.

Sherwood is a former Guilderland town attorney who has served as town justice since 2013. Lagan is a lawyer and financial adviser.

Sherwood pleaded not guilty and was released. His lawyer isn't commenting on the charges. A message left with Lagan's lawyer wasn't returned.

(Mike Frisch)

April 25, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

57 Years Without Discipline

A note of sadness for me in an order of the Pennsylvania Supreme Court suspending an attorney for a year and a day based on his default in responding to a single client complaint.

Disciplinary Counsel had been unable to personally serve the complaint.

The defaulted allegation involve the representation of a client in a slip-and-fall. The attorney failed to have a written fee agreement, received funds in settlement of the claim and failed to forward the settlement proceeds to the client.

The attorney was born in 1936, admitted in 1961, and had no prior discipline. (Mike Frisch)

April 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Fictitious Settlement

The Indiana Supreme Court has imposed a suspension of not less than 180 days

Client” hired Respondent to represent him regarding disputes he had with Liberty Hall, a correctional re-entry program facility where Client was on work release. Respondent sent a tort claim notice to Liberty Hall, the Department of Correction, and the Attorney General. Later, Respondent sent Client’s claims to Liberty Hall’s insurer, which denied any liability.

Respondent told Client she would file suit against Liberty Hall on his behalf, but Respondent never did so. Thereafter, Respondent led Client to believe a suit was pending and
that Liberty Hall was willing to negotiate a settlement, both of which were untrue. Respondent communicated to Client a fictitious settlement offer of $20,000, which Client declined. Respondent then communicated to Client a fictitious settlement offer of $40,000 plus attorney fees, which Client accepted. Client discovered the ruse when no settlement funds were forthcoming and Respondent confessed the truth to Client.

(Mike Frisch))

April 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 24, 2018

Excluded For Exceeding Limited License

The Virginia State Bar Disciplinary Board excluded a limited license holder from practice

The Respondent graduated from law school in 2004. He then took the Virginia Bar Exam in 2004, which he failed. In 2005, the Respondent took the West Virginia Bar Exam and failed that as well. He subsequently took the Tennessee Bar Exam in 2005 and passed. He was then licensed to practice law in Tennessee. In 2006, he submitted an application and was granted the privilege to serve as corporate counsel in the Commonwealth pursuant to the Rules of Virginia Supreme Court, Part One A, Foreign Attorneys, Rule 1A:5, with the limited ability to provide legal services for a company known as 21st Century Computers (hereinafter “21st Century”) and only for 21st Century. 21st Century was a business that the Respondent’s father-in-law started out of his home in the 1980s and was later incorporated in Virginia.

At no point was the Respondent admitted before the Supreme Court of Virginia granting him the ability to practice law generally. Furthermore, the Respondent admitted to Investigator Baker that he (the Respondent) researched the license restrictions of corporate counsel before applying with the Commonwealth and acknowledged that he could only work for the corporation and the corporation only, but stated he was allowed to do pro bono work. He further stated that he believed he could give legal representation where “the poor person don’t have to pay me nothin’.” He wrongfully believed that he could be compensated through an entity, such as the Commonwealth for doing legal work for indigent persons.

You see the issue

Knowing full well that he was not authorized to practice law that was not associated with 21st Century, the Respondent rented an office with a sign that alerted the public that the office was The Billips Law Firm LLC. He also advertised to the public that he was an attorney by establishing a website and Facebook page for his firm and by making pens to hand out to the public.

Order

it is ORDERED that the privilege to practice law as corporate counsel in the Commonwealth of Virginia that was granted to the Respondent, B. Walter Billips, is revoked effective March 23, 2018 pursuant to Part VI, Section 4, Paragraph 13(1) of the Rules of Virginia Supreme Court and that B. Walter Billips shall be excluded from admission to the Virginia State Bar and shall be excluded from the exercise of any privilege to practice of law in any capacity within the Commonwealth.

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Notice Sufficient, Default Not Vacated

An immediate suspension has been ordered by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee (Committee) has charged respondent with three violations of the New York Rules of Professional Conduct (22 NYCRR 1200.0) in connection with respondent's appearance at trial in Davler Media Group, LLC v Astro Gallery of Gems, when the judge in that matter denied respondent's demand that she recuse herself from the case. Specifically, the charges allege that respondent engaged in undignified and discourteous conduct and conduct that is prejudicial to the administration of justice when he stated, in support of his request for recusal, that Judge Debra Rose Samuels had made false statements against him and was personally biased against him (rules 3.3[f][2] and 8.4[2]); engaged in undignified and discourteous conduct by threatening, in open court, to file a complaint against Judge Samuels with the Commission on Judicial Conduct (rule 3.3[f][2]); and engaged in conduct that adversely reflects on his fitness as a lawyer, as it relates to the foregoing conduct (rule 8.4[h]). Respondent defaulted on the petition.

He moved to vacate the default claiming lack of service

We find that respondent has failed to rebut the Committee's evidence of proper service. Jurisdiction was properly attained over respondent where the petition of charges was delivered to "Connie" at respondent's actual place of business and then mailed the next day to respondent's office, and any defects in the affidavit of service or the failure to timely file said affidavits with this Court are irregularities that can be properly cured by deeming it filed nunc pro tunc (Bell v Bell, Kalnick, Klee & Green, 246 AD2d at 443; see also Air Conditioning Training Corp v Pirrote, 270 App Div 391, 393 [1st Dept 1946][there is a difference between service and proof of service with the fact of proper service, which confers jurisdiction]).

In addition to proper personal service, respondent was given notice of the petition of charges via the Committee's emails to him (pursuant to his instructions), even if he could not open the attachments by using his cell phone, where the subject line and text of the email advised him of the nature of the petition, its return date, and that he would be receiving hard copies via personal service at his office and by mail.

With regard to respondent's request for an extension of time to answer the petition because, despite his request for documents and records that are in the control of the Committee, the Committee has refused and neglected to turn them over to him, the record does not bear this out.

In addition to finding respondent in default and deeming the charges admitted, he should be immediately suspended from the practice of law since his default in responding to the petition constitutes conduct that immediately threatens the public interest under 1240.9(a)(1).

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Moonlight In Wisconsin

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

Attorney Trupke was admitted to the practice of law in Wisconsin in 2002. She resides in Oregon, Wisconsin. Attorney Trupke has not previously been the subject of professional discipline. At the times of the events giving rise to this proceeding, Attorney Trupke was a partner in a Madison law firm.

The misconduct

The facts set forth in the complaint are as follows: In 2013, Attorney Trupke began serving as an independent reviewer for the Center for Copyright Information (CCI). CCI is a service offered through the American Arbitration Association (AAA) in which an independent reviewer is appointed to consider whether an individual may be violating copyright law or has a valid defense. Once a CCI reviewer or AAA arbitrator completes a matter, the parties pay a fee to AAA, which in turn pays the reviewer or arbitrator.

Between January 2013 and June 2016, AAA paid Attorney Trupke $73,025 for her work as a CCI reviewer. Attorney Trupke did not report the $73,025 in CCI fees to her firm or to her partners. 

She stipulated to the violations. 

In 2013, Attorney Trupke opened a file at the firm for an AAA matter. After working 28.10 hours on the matter, she directed the firm's accounting department to write the time off. She subsequently sent a personal invoice to AAA, requesting that AAA send payment to her home. In March 2016, Attorney Trupke gave misleading information to the firm's managing partner about her work and income from CCI and AAA.

Attorney Trupke resigned from the firm in May 2016. In June 2016, Attorney Trupke and the firm entered into a reimbursement agreement in which Attorney Trupke waived certain post resignation benefits to offset payments she owed to the firm.

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 23, 2018

Third Strike

A summary of a disbarment from the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and disbarred April Renee Morrissette (attorney registration number 35247), effective April 10, 2018.

On December 11, 2015, Morrissette pleaded guilty in Arapahoe County District Court to computer crime, a class-four felony, and to theft, a class-one misdemeanor. She received a three-year deferred judgment and sentence on the felony charge and three years’ probation on the misdemeanor charge.

These convictions arose out of Morrissette’s collection of unemployment insurance benefits. She began collecting those benefits in January 2011, after her employment at a law firm was terminated. Before doing so, she accessed a website maintained by the Colorado Department of Labor and Employment and signed a form warning against making false statements and willful misrepresentation to obtain benefits. From March to November 2011, Morrissette worked at another law firm. She intentionally continued to collect unemployment benefits even though she knew she was no longer entitled to them. She was employed during 32 of the 54 weeks that she filed for and received unemployment insurance benefits. During this period, she earned at least $52,423.72, but she misrepresented her earnings as $0.00. Morrissette fraudulently collected a total of $15,648.00 in unemployment insurance benefits to which she was not entitled.

Through this conduct, Morrissette violated Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and Colo. RPC 8.4(c) (barring conduct involving dishonesty, fraud, deceit, or misrepresentation).

A prior suspension in 2013

On February 4, 2013, Morrissette pled guilty to felony menacing, a class‐five felony (C.R.S. § 18‐3‐206(1)(a)‐(b)), as well as to the related crime of misdemeanor child abuse (C.R.S. § 18‐6‐401(1), (7)(b)(ii)). Morrissette aimed a gun at a group of people, including a three‐year‐old child, in a threatening manner while yelling obscenities, and then shot into the ground. Morrissette received a two‐year deferred judgment and sentence with conditions for the menacing charge, and she was placed on a two‐year period of probation with conditions for the child abuse charge, which runs concurrent to the two‐year deferred sentence.

There was also a sanction imposed in 2014. (Mike Frisch)

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

Sex And Suspension: Ohio Has An Outbreak

The Ohio Board of Professional Conduct has filed a report (linked here)  proposing a consent two-year suspension of an attorney.

He was convicted on an Alford plea to soliciting. 

In an unrelated matter he had sexual relations with a domestic relations client. The stipulation provides that the relationship was "legal and consensual" and did not impact negatively on the underlying case.

Another report involves a proposed fully-stayed six-month suspension. 

The attorney represented the husband and wife in a bankruptcy proceeding and had sex with the wife. He also failed to escrow the fee and mishandled the matter.

They had "sexted" with each other and had law office intercourse.

The husband found out and both the affair and the representation promptly terminated.

Still another report recommends a two-year suspension with only six-months stayed and conditions for reinstatement  for sex and neglect( Mike Frisch)

April 23, 2018 in Bar Discipline & Process | Permalink | Comments (2)

Access Denied

The Delaware Court of Chancery denied access to a reporter seeking access to discovery relating to civil litigation in the Theranos affair

Theranos, Inc. is a life sciences company that claimed to revolutionize the laboratory testing industry with innovative methods for drawing and testing blood and interpreting patient data. In October 2015, the Wall Street Journal and other media outlets began publishing details about Theranos’s technology and operations that cast doubt on Theranos’s claims of innovation. In spring 2016, multiple government agencies began investigating claims that Theranos misled investors about the state of its technology and operations.

 The civil case settled but

Non-party Alex Gibney is a journalist and documentary film maker. By letter filed on February 22, 2018, he asked the court to grant him access to the depositions taken in the two cases. Because he is a film maker, he is particularly interested in the video. As the basis for his request, Gibney invokes the right of public access to judicial records.

Nope

The materials that Gibney seeks were never filed with the court and never became part of the presumptively public record. Because a threshold requirement for the public right of access has not been met, Gibney’s request for these materials is denied. Although this decision could stop there with the bright-line rule, one category of materials presents an interesting twist. Gibney has requested video corresponding to approximately 200 pages of excerpts from deposition transcripts that were filed with the court and which the court ruled would be available for public access.22 Gibney has argued that the testimony became part of the presumptively public record, albeit in the form of transcripts. He believes that he therefore should be able to access the same testimony in the alternative form of video, which the parties have readily available. Gibney has offered to cover the expenses of a professional third-party service to edit the video and make the necessary redactions so that he only receives the portions that have been filed with the court.

In my view, Gibney cannot access the video. Court of Chancery Rule 32(e) states: “Except as otherwise directed by the Court, a party offering deposition testimony pursuant
to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form the party shall also provide the Court with a transcript of the portions so offered.”

The rule requires the filing of a transcript. A party can choose whether or not to file video. Because the rule contemplates that filing video is optional, I do not believe that the filing of a transcript brings any unfiled video within the ambit of the public’s right of access. The transcript version of the testimony and the video version of the testimony are
conceptually distinct. If a party submits video, as in Poindexter and Trump Old Post Office, then the video becomes part of the public record and subject to the public’s right of access. If a party chooses only to submit the transcript, then only the transcript becomes part of the presumptively public record. Unless a party also files the video, the video corresponding to the filed portion of the transcript does not become part of the presumptively public record.

Here, the parties only filed excerpts from the deposition transcripts. They did not file the corresponding video. Gibney therefore does not have a right to access the unfiled video corresponding to the 200 pages of deposition transcripts. Those materials did not become part of the presumptively public record.

Gibney’s request for access to unfiled discovery material is DENIED.

(Mike Frisch)

April 23, 2018 | Permalink | Comments (0)

Stuck In Traffic

A Nigerian attorney who had emigrated to Canada and was licensed there has been suspended on an interlocutory basis for dishonest counseling of a client by the Tribunal Hearing Division of the Upper Canada Law Society

Client A alleged that the Lawyer had instructed her not to attend at her scheduled refugee hearing, but to wait on another floor of the building, so that the Lawyer could determine whether the member hearing the matter would likely be favourable. Client A indicated that the Lawyer had instructed her to leave the building and telephone the tribunal office to say she was stuck in traffic, if the Lawyer found the member was not likely to be favourable.

In relation to this allegation, in February 2017, Client A’s new counsel provided the Society with an audio recording of the conversation with the Lawyer, in which the Lawyer had counselled Client A to be dishonest.

On May 5, 2017, the Lawyer provided the Society with her representations in response to Client A’s complaint, acknowledging that she had counselled Client A to be dishonest.

There are false billing issues based on a complaint from Legal Aid Ontario

In the complaint from LAO received September 21, 2017, LAO enclosed the Decision, in which it was found that the Lawyer had engaged in false billings with respect to the duration of refugee hearings, had billed LAO for refugee hearings that had not taken place, and had engaged in double billings.

The Lawyer admitted that she claimed more hours for refugee hearings than actually took place and that she had billed LAO for some hearings that had not taken place.

The Lawyer also admitted that she billed a standard four hours of hearing for each half-day of hearing scheduled even if the hours she attended were less than four, or even if the hearing did not take place at all, because this is how interpreters at refugee hearings are paid and she thought this was fair.

The final report from LAO’s audit and compliance unit indicated that an amount of approximately $80,000 potentially had been overbilled, resulting from overbilling, double-billing and in some cases triple-billing.

The LAO Decision indicated that the Lawyer’s representations regarding the overbilling allegations were problematic: “highly improbable” and not credible.

As to immediate suspension

 In the present case, the misconduct has been admitted, and through her counsel the Lawyer has acknowledged the risk of harm to the public and to public confidence in the administration of justice and in the legal profession. The evidence substantiating this risk is strong. The concerns are based on serious and multiple allegations of dishonesty – dishonesty in connection with the LAO billings and dishonesty in the Client A matter. The allegations, if proven, could warrant a lengthy suspension or the revocation of the Lawyer’s licence to practise law.

(Mike Frisch)

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

Saturday, April 21, 2018

Facebook Posts Lead To Arrest And Suspension

The Tennessee Supreme Court has imposed a two year suspension with a 30-days of active suspension followed by probation  of an attorney who was granted judicial diversion on charges of patronizing a prostitute.

The summary of the Board of Professional Responsibility also notes that he made inappropriate remarks to a client's wife.

The Cookeville Herald-Citizen   reported on the arrest

A Facebook conversation has led to the citation of a Cookeville attorney for reportedly patronizing prostitution from a local woman.

Attorney Jaramiah Hruska was issued the citation yesterday, and local woman Melissa McClanahan was issued a citation for prostitution in the incident as well.

According to reports from the Cookeville Police Department, investigators were alerted to the possibility based on incriminating Facebook conversations between the two.

“The messages contained language that indicated they were attempting to find a location ... so they could engage in the sex act,” said Det. Sgt. Bobby Anderson, who investigated the incident and issued the citations to the two.

The incident allegedly happened earlier this month, on July 6, in Hruska’s law office, located here in Cookeville at 320 E. Broad St.

According to information obtained in the Cookeville Police Department’s investigation, McClanahan had become acquainted with Hruska because the two were once neighbors.

Also according to the report, “Hruska knew that she was in need of financial help, and he approached her offering money for sex.”

Hruska reportedly told investigators that he had known McClanahan for a long time and that he had loaned her money on past occasions, but he initially denied paying her to perform sexual acts.

He reportedly did admit to having sexual intercourse with her one time, however.

The attorney reportedly later admitted to authorities that he and the woman had “an understanding” regarding the transaction of sex for money, and that the incident happened in early July, as the record of the Facebook conversations originally discovered by investigators indicate.

Hruska and McClanahan are both scheduled to appear in Putnam County General Sessions for their respective citations on Aug. 24.

The charges are class A misdemeanors.

(Mike Frisch)

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

Bad Cop, Good Paralegal

A former police officer has the necessary character to be licensed as a paralegal notwithstanding issues in that former position, according to a decision of the Tribunal Hearing Division of the Upper Canada Law Society

The applicant was a police officer for more than 20 years.  He ended his police career as a Sergeant with the Ottawa Police Service, after beginning his career as a police officer with the Nepean Police Service.

In June 2012, the applicant was charged with six counts of alleged misconduct under the PSA.  He was convicted on all charges in September 2014 by the Hearing Officer.  The charges and convictions were as follows:

•           INSUBORDINATION – accessing Records Management System (“RMS”) records between February 2011 and May 2012;

•           INSUBORDINATION – accessing Canadian Police Information Centre (“CPIC”) records between April 2011 and February 2012;

•           INSUBORDINATION – disobeying an order between February 2011 and May 2012;

•           CORRUPT PRACTICE – accessing privatized reports between August 2011 and March 2012;

•           CORRUPT PRACTICE – accessing phone subscriber information between May 2011 and May 2012; and

•           DECEIT – licence plate query remarks made on CPIC between July 2011 and February 2012.

The applicant was found to have communicated with people in the sex trade and in the escort business under the auspices of helping and advocating for vulnerable women by enhancing safety and collecting information about criminal activity.

He characterized his activities as outreach, although not within any established police or other outreach programme.  In his testimony at the PSA hearing, the applicant described how he would meet with sex workers in full uniform, occasionally bringing along a more junior member of his platoon.  He explained that his purpose was to provide information to the sex workers with respect to safety measures and to encourage members of this vulnerable community to communicate with police about threats to their security. The applicant encouraged the sex trade workers to phone the police if they encountered a “bad date” and he gave them practical advice about collecting evidence.  He gave the workers his business card, which contained his personal phone number.

On numerous occasions, the applicant accessed confidential internal police records and databases, without authority and in violation of police policies and procedures.  It appears this was for the purpose of identifying whether certain individuals might pose a threat to the safety of a sex trade worker. He was found to have conducted 37 unauthorized CPIC queries and 400 unauthorized RMS queries relating to 83 different people.  He admitted having done so.

He was found to have committed corrupt practice when, for his own personal advantage, he accessed privatized police reports without proper authority and accessed phone subscriber information on 17 occasions, none of which involved any lawful police investigation.  Police reports are privatized to restrict access to unauthorized persons.

The applicant was found to have engaged in deceit when he entered misleading “remarks” in CPIC to explain why he queried the licence plates.  He testified in the PSA hearing that the queries were made for various personal reasons, not for legitimate police business.  The Hearing Officer found that the “remarks” entered by the applicant were deliberately misleading.

The applicant used his position as a police officer to access information for other than the lawful execution of his duties.  The Hearing Officer found that this is contrary to the oath of secrecy and the duties of a police officer.

Present character

We are satisfied from the evidence of the applicant, and that of Mr. McKay, that the applicant now has his life back together and that after a stellar career as a police officer, the actions he undertook were driven by the circumstances of his life at the time.  We accept, based on the evidence before us, including the documents related to the applicant’s PSA hearing and his application for a licence, the evidence of Mr. McKay, and the applicant’s credible testimony, that he wanted to help a vulnerable sector of society and, in doing that, he lost his way.  He suffered the most severe consequences as a result of his misconduct – the loss of a long and distinguished professional career. 

 It was important to hear directly from the applicant.  We are satisfied he has fully accepted the results of the PSA hearing.  He accepts responsibility completely for the consequences of his choices and his actions.  He is deeply remorseful and it was clear that he has learned from his mistakes.  We were very much persuaded by the applicant’s testimony.  He impressed us as a credible, thoughtful and remorseful person.

(Mike Frisch)

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