Legal Profession Blog

Suspension Set Aside For Attorney Who Brought Contraband To Incarcerated Husband

The Oklahoma Supreme Court has ordered that an interim suspension of an attorney who entered a no contest plea to bringing contraband into a penal institution be set aside.

The matter is terminated without further disciplinary proceedings.

Esquire Empire had this report on the criminal case and resulting interim suspension:

The Oklahoma Supreme Court has suspended Tulsa attorney Sandra Lee Tolliver from the practice of law after Tolliver in February was handed an 18 month deferred sentence on a misdemeanor charge of bringing contraband into a jail. Tolliver was originally with a felony on the same allegations, in which she allegedly brought scissors, tweezers and a razor into the David L. Moss Criminal Justice Center.

Tolliver’s husband, Michael S. Tolliver, was charged on the same day with bringing contraband into jail. Charging information alleged he possessed the same items for which Sandra Tolliver was charged – scissors, tweezers and nail clippers. An affidavit of probable cause in Michael Tolliver’s misdemeanor case says a deputy reviewed surveillance video from the Tulsa jail and saw Sandra Tolliver remove large envelopes from a bag she’d carried into the jail visiting area and place them on top of paperwork Michael Tolliver had placed on the table. The deputy wrote that Michael Tolliver gathered the envelopes, placing one inside of others.

The same deputy reported that he listened to a phone conversation between Mr. and Mrs. Tolliver recorded later that night. In the conversation, Michael Tolliver reportedly told Sandra Tolliver he was on lock down because a jail official had found the “stuff” Sandra Tolliver had brought him. The affidavit says a jail officer had thrown the “big ass cookie away.” Sandra Tolliver reportedly replied “Oh no.”

The same deputy reported that he listened to another conversation recorded two days later – on Feb. 19, 2012, in which Michael Tolliver told Sandra Tolliver “I think next time you should just bring you (sic) files in and not your bag, that’s always clever.”

The deputy reported that he reviewed logs of attorneys, clergy and special visitors who signed into the jails and noticed Michael Tolliver had visited in with Sandra Tolliver — his wife and his attorney. In a recorded Feb. 22 interview with a deputy, Michael Tolliver denied having received contraband from his attorney and wife. He reportedly told the deputy he’d obtained the scissors, nail clippers and razor in question from another inmate. The affidavit says Michael Tolliver told the deputy “off the record, I will tell my wife not to bring in any more cookies” then asked the inmate for a bite of the cookie the deputy reportedly took from him, but then said “I’m just kidding.”

The charging document said jail staff also found pills in Michael Tolliver’s possession, which appeared to be vitamin C and omega 3 capsules, and some Godiva brand chocolate. Mr. Tolliver was being held in the jail awaiting pickup by United State’s Marshals. He was convicted in federal court in 2011, at the age of 61 on two counts of arson and to counts of use of fire to commit mail fraud in connection with fires in 2001 and 2003 at Tulsa rental properties. He was facing a 36 year prison sentence.

In the interim suspension of Sandra Tolliver’s law license, the court set a routine schedule in which she may show cause why the interim suspension should be set aside and set a May 9 deadline for any filings showing why a final order of discipline should not be imposed, to request a hearing, file a brief or submit evidence that might mitigate the severity of the discipline the court may impose.

The court rejected the claimed defense of ingorance of the law in connection with the criminal matter. (Mike Frisch)

A Concrete Answer Gets Attorney Disbarred

The Kansas Supreme Court has disbarred an attorney admitted in 1970 for misconduct in connection with a case involving a building collapse.

The attorney filed "as bare bones of a petition [suit] that could possibly pass muster" and failed to proceed in a competent and diligent manner. But the cause of the sanction had to do with a deposition he defended.

The deponent had had testing performed on concrete at issue but did not wish to disclose that fact because it was done by a moonlighting friend. The deponent was concerned that the friend could lose his job if the work came to light.

When the issue arose at the deposition, the deponent asked for a break. He expressed his concerns to the attorney and later testified that the attorney told him

Well, you're going to say what you want to say, so go ahead.

The deponent testified falsely and the false testimony was not corrected.

The attorney denied he had counseled false testimony but defaulted in the bar disciplinary case. (Mike Frisch)

Court Remands Fee Award Of Over $15.8 Million

The New York Appellate Division for the First Judicial Department has remanded a matter involving legal fees charged to and gifts received from a wealthy widow in an estate matter:

Beginning in 1983, defendant law firm represented the family of Sylvan Lawrence in litigation concerning the administration of his estate. In 1998, Alice Lawrence, Sylvan's widow, paid three of the firm's partners, the individual defendants, a bonus or gift totaling $5.05 million and also paid the firm $400,000 as a bonus or gift. By the end of 2004, the widow had paid, approximately $22 million in legal fees on an hourly fee basis.

In the hope of reducing her anticipated legal fees in the ongoing litigation, the widow entered into a revised retainer agreement with the law firm in January 2005. The revised retainer agreement provided, inter alia, for a 40% contingency fee. In May 2005, the estate litigation settled with a payment to the estate of more than $111 million and, in accordance with the revised retainer agreement, the firm sought a fee of 40% of that amount. When the widow refused to pay the 40% contingency fee, this litigation resulted, in which, among other relief, the return of the gifts the widow made in 1998 is sought.

The court held

The revised retainer agreement is both procedurally and substantively unconscionable (Lawrence v Graubard Miller, 48 AD3d 1, 6 [1st Dept 2007], affd 11 NY3d 558 [2008]). The evidence shows that the widow believed that under the contingency arrangement, she would receive the "lion's share" of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow's share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement — an agreement she entered into in an effort to reduce her legal fees...

In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered, the sheer amount of the fee, and the risks and rewards to the attorney upon entering into the contingency agreement. With regard to the last factor, the law firm had internally assessed the estate's claims to be worth approximately $47 million so that the contingency fee provision in the revised retainer would have meant a fee of about $19 million. Contrary to the law firm's assertion, on this record it seems highly unlikely that the firm undertook a significant risk of losing a substantial amount of fees as a result of the revised retainer agreement's contingency provision. Rather, the Referee accurately characterized this attempt by the law firm to justify its action as "nothing but a self-serving afterthought."(citations omitted)

The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) (see Lawrence v Graubard Miller, 11 NY3d at 596). The record shows that the law firm spent a total of 3,795 hours on the litigation after the revised retainer agreement became effective, resulting in an hourly rate of $11,000, which, as the Referee stated, is "an astounding rate of return for legal services."

However, the remedy recommended by the Referee and adopted by the Surrogate — namely, a new "reasonable" fee arrangement for the parties — was improper. Where, as here, there is a preexisting, valid retainer agreement, the proper remedy is to revert to the original agreement. For the reasons found by the Referee, we reject the firm's suggestion that it receive a reduced contingency fee. Accordingly, the matter is remanded for the determination of the fees due the law firm under the original retainer agreement. Given that the firm is entitled to fees under the original retainer agreement, it is also entitled to prejudgment interest from the date of the breach. (citations omitted)

Because the individual defendants acted alone, and in secret from the rest of the law firm, with respect to the gifts, we decline to rule that such conduct by the individual defendants results in the firm's forfeiture of its lawful fees from the date the individual defendants received the gifts.

The Surrogate's Court (opinion linked here) had awarded the law firm fees in the amount of $15,837,374.02 but found that the gifts solicted by the attorneys (concealed from their law firm and the widow's children) emanated an "odor of overreaching too potent to be ignored." (Mike Frisch)

Overpaid Judge Censured

A judge who was paid in excess of the statutory cap on salary paid to judges employed by more than one municipality has been censured by the Utah Supreme Court.

The payments were made over the period from 2009 to 2011.

In addition to the censure, the judge must make restitution of the amounts in excess of the cap.

The court held that the judge had not preserved his argument that the cap was unconstitutional. (Mike Frisch)

Court Remands Public Defender Case

The Florida Supreme Court has remanded a case involving public defender claims that they should be permitted to decline appointments and withdraw from cases due to their overloaded dockets.

WCTV.com has this report:

The Florida Supreme Court is siding with public defenders who believe they should be able to reject cases if they don't have the budget and lawyers to adequately represent poor people charged with crimes.

Thursday's ruling overturns an appeals court decision that said public defenders had to accept the cases to represent those who can't afford lawyers.

The Supreme Court cited statistics that show public defenders in Miami-Dade were taking on 200 to 300 cases beyond what they should have been able to handle. It also mentioned conditions that often meant defenders had to start trial before they could interview witnesses or visit crimes scenes.

The court asked the original Miami-Dade County court to determine whether public defenders are still overburdened.

(Mike Frisch)

In The Home Of the Father

A Tennessee circuit court judge is the subject of recently-filed charges filed by Disciplinary Counsel with the Court of the Judiciary.

The charges allege that the judge was responsible for a matter involving post divorce custody and visitation rights. It is further alleged that

...[the judge] undertook an independent investigation of the conditions present at the residence of the father, by making a personal visit to the residence of the father, inspecting the home of the father, and later utilizing her personal observations in making rulings and referring to matters concerning parenting issue.

(Mike Frisch)

Downward Departure

The District of Columbia Court of Appeals has agreed with the Board on Professional Responsibility and declined to impose identical reciprocal discipline in a case where the attorney was disbarred in Maryland.

Instead of disbarment, the attorney was suspended for two years, with the last year stayed in favor of probation with a practice monitor for 18 months. If he violates probation, he will be suspended for a year and required to demonstrate fitness.

The court called the board's probation proposal a "thoughtful, targeted response" to the attorney's "sloppy recordkeeping and a failure to communicate that resulted in the abandonment of his clients' matters."

The court also rejected Bar Counsel's call for a fitness requirement prior to reinstatement, finding that "Bar Counsel bears the burden of persuasion on this issue."

I disagree as a matter of law with the last point.

This attorney was disbarred in Maryland. There is no evidence of deficient proof of misconduct. An order of disbarment reflects an explicit conclusion that the attorney is unfit to practice. Even if the court concludes (as it does here) that "substantially different [lesser] discipline" is appropriate, the sanctioned attorney properly bears the burden of proving his fitness to practice. 

It is also notable that the court suspended this attorney for 45 days in January 2012 for similar misconduct. Those violations (and a 2008 informal admonition) are not mentioned in this decision.

Of course, the finding that the misconduct warrants substantially different discipline (and the cites to prior cases of like disposition in footnote 9) simply translates into the principle that D. C. is more lenient in attorney misconduct matters than its neighbor to the north.

Since Maryland and the District of Columbia share jurisdiction over many, many attorneys, the difference is one with real world consequences.  (Mike Frisch)

Abuse of Subpoena Draws Suspension

After rejecting two petitions for voluntary discipline, the Georgia Supreme Court imposed a six-month suspension of an attorney for misuse of a subpoena in connection with claims of family violence against him.

The attorney learned that his accuser

...may have been in contact with a local crisis center. [He] wanted to obtain any documents in the center's possession relating to the accuser, but the center refused his request.[He] returned later that day with a Subpoena for the Production of Documentary Evidence...that he obtained from the superior court clerk's office through misleading representations. He did not serve the subpoena on any other party or counsel, but submitted it to the center in an effort to obtain the desired documents. [He] did not advise the center's executive director that there was no pending case in the superior court and no hearing, trial or deposition scheduled that would have supported issuance of the subpoena.

The court concluded that reprimand was insufficient despite the attorney's remorse and lack of prior discipline. (Mike Frisch)

The Batter Is Out

The New York Appellate Division for the First Judicial Department has imposed an interim suspension based on the following:

On January 19, 2010, respondent pleaded guilty to three counts of aggravated harassment in the second degree (Penal Law § 240.30, a class A misdemeanor), and two counts of stalking in the fourth degree (Penal Law § 120.45, a class B misdemeanor). Respondent's prosecution stemmed from his threats to do bodily harm to certain judges as well as the lawyers who represented his landlord in a residential nonpayment proceeding. As a condition of the plea, respondent was required to resign from the Bar without the possibility of an application for reinstatement. On April 12, 2010, respondent submitted a purported affidavit of resignation from the Bar and was sentenced to a conditional discharge. The Committee moved this Court on April 29, 2010 for an order accepting respondent's resignation from the practice of law and striking his name from the roll of attorneys. This Court, however, notified respondent that the motion could not be granted because respondent's signature on the affidavit was not notarized as required by 22 NYCRR 603.11. Respondent then submitted another affidavit that, although notarized, was deficient because it omitted the required acknowledgment that respondent could not have successfully defended himself on the merits with respect to any charges predicated on the misconduct being investigated by the Committee (see 22 NYCRR 603.11[a][3]). Upon respondent's failure to submit a sufficient affidavit of resignation, this Court denied the motion and remanded the matter to the Committee "for further disciplinary proceedings including the issue of respondent's capacity."

On remand, the Committee examined respondent under oath on April 7, 2011. During his testimony, respondent admitted that in February 2009, he told a court clerk that he should be taken seriously and was "seriously considering resorting to violence." At the examination, respondent also acknowledged his plea allocution by which he admitted that on February 17, 2009 he asked the clerk whether he would have to "come back [to the courthouse] with a bat." Respondent also admitted at his examination that he sent a box cutter to a judge along with a letter directing her to show it to six other judges as well as his landlord's attorneys. The foregoing admitted threats of violence against judges and opposing counsel constitute professional misconduct in that they are prejudicial to the administration of justice (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4[d]). Such threats constitute misconduct for the additional reason that they are illegal and adversely reflect on respondent's fitness as a lawyer (see id. at rule 8.4 [b]).

Pursuant to this Court's remand order, the Committee also attempted to have respondent examined by a psychiatrist for the purpose of obtaining an evaluation of his mental capacity. Respondent has failed to comply with the Committee's several demands that he make himself available for the necessary psychiatric examination.

(Mike Frisch)

Dirty Laundry

The Wisconsin Supreme Court has ordered a suspension of two years of an attorney convicted of money laundering.

The attorney's misconduct involved money due to a client pursuant to a marital settlement agreement. The attorney held payments while the client filed for bankruptcy. The conduct amounted to bankruptcy fraud.

The attorney had a prior disciplinary history but nothing of the magnitude involved here. (Mike Frisch)

Inside Out

The Georgia Supreme Court accepted the voluntary license surrender of an attorney who

was employed as in-house counsel for a corporation that allowed him to do outside work as long as he did not do so on company time and as long as his [outside] work did not raise any conflicts of interest with company matters.

He used an outside law firm that did work for the corporation to do his private cases. He approved billings based on altered time records knowing that they were not for work on that was behalf of the corporation.

In Georgia, license surrender is "tantamount to disbarment." (Mike Frisch)

General Denial

Last week, we posted charges filed by the Illinois Administrator arising out of an attorney's double murder conviction.

The attorney's handwritten from prison answer has now been posted. He denies a sexual relationship with the adult victim, denies that the infant victim's last name was Curry, and denies his guilt of the crimes:

...not one person testified to being an eyewitness to the murder; no blood evidence connected respondent to the murders; no DNA was presented that established that respondent murdered anyone, no finger print evisdence linked Respondent to the crimes, Respondent exercised his right to remain silent when questioned by the police; no ballistic evidence was presented that connected respondent to the murders; no murder weapon was recovered in this case; no testimony was presented at trial that any neighbor of [the adult victim] identified Respondent or his vehicle being at the crime scene on January 29, 2009, there was no video surveillance presented at trial that positively placed Respondent or his vehicle at the crime scene on the day of the murders. 

He demands strict proof that there is a judgment of conviction. (Mike Frisch)

Mandatory Pro Bono Proposed For New Jersey Bar Admission

The New Jersey Supreme Court has asked for comments on a report of a Working Group that calls for mandatory pro bono as a condition for admission in the Garden State.

The report identifies three primary goals: increase pro bono hours for underserved populations, give admittees real-life experience and "instill in future attorneys a desire to continue pro bono work throughout their legal career - the habit of doing good."

Query: does forced service really meet the last articulated goal?

The report calls for 50 hours of required service. (Mike Frisch)

A Hoosier Horror Story: The Fall Of The House Of Usher

The Indiana Supreme Court has imposed a suspension of at least three years without automatic reinstatement of an attorney named Arthur Usher.

The court found he had "engag[ed] in a pervasive pattern of conduct involving dishonesty and misrepresentation that was prejudicial to the administration of justice."

The attorney developed a romantic interest in an Indiana McKinney School of Law student ("Jane Doe" in the court's opinion) who interned at his law firm of Bose, McKinney & Evans. She just wanted to be friends. The misconduct took place after she had rebuffed his romantic overtures.

Jane Doe was an actress who had appeared in a horror film.

The attorney (who had left the Bose firm) contacted the fim's producer and obtained a copy of a clip from the film that apparently showed Jane Doe in a "state of undress." As a result of his contact with the producer, Jane decided to end their friendship.

The attorney then used the film clip in an attempt to humiliate Jane Doe (who had had a body double in the nude scene) and interfere with her employment prospects.  He sent the clip to an attorney at the Bose firm where Jane had accepted an offer and suggested that hiring her would have an adverse impact on the firm.

Jane told him to leave her alone or she would file for a restraining order.

He retaliated by widely disseminating (through his paralegal) a false e-mail chain along with the film clip.

Lowlights from the e-mails:

Firm Slogan becomes "Bose means Snuff Porn Film Business" w/addition of Jane Doe.

I think you are failing to understand how harmful [Jane Doe]'s behavior was to all female professionals...

Quite frankly, I can not [sic] believe Bose McKinney employs this woman...

That firm is free to hire idiots who participate in a film demeaning to women...

The e-mails and film clip was distributed by the paralegal, who believed it was a prank. He gave her a flash drive and had her create an e-mail account using the name of the managing partner at Bose. It was sent to 51 recipients, mostly at the Bose firm.

When Jane Doe filed a bar complaint and civil suit, the attorney denied he sent the e-mail. He later admitted he had done so, claimed his answers in the litigation were technically accurate and claimed First Amendment protection.

The court rejected his "[h]ypertechnical parsing of ordinary English" and found he had made knowing false statements in the civil case.

Justice David would disbar. (Mike Frisch)

No New Rule 8.4(h) For Tennessee

The Tennessee Supreme Court has entered an order denying the petition of its Board of Professional Responsibility to amend its Rule 8.4 to add a subsectuon (h) prohibiting engaging "in a professional capacity, in certain discriminatory conduct."

The court concluded that the rule and comment to subsection (d)(conduct prejudicial to the administation of justice), which tracks the ABA Model Rules, sufficiently deals with the issue. (Mike Frisch)

The 14 Percent Chance

The Wisconsin Supreme Court has reinstated an attorney suspended for two years in 2010 for possession of heroin and felony bail jumping.

The court described the situation that led to the conviction

Attorney C. began using illegal drugs around 2006, and he admitted being "coked up" while handling legal cases in court.  The referee noted that Deputy Sergeant Patek of the Walworth County Sheriff's Department testified at the reinstatement hearing that Attorney Compton's conduct before his arrest included possession and delivery of both heroin and cocaine.  Deputy Sheriff Long of the Walworth County Sheriff's Department testified that Attorney Compton's conduct before his arrest had a major impact on a woman who was a significant person in Attorney C.'s life, and the woman ultimately lost her teaching license as a result of drug conduct and her relationship with Attorney C.  Deputy Sheriff Long described Attorney C. as a "great person" and "a very smart attorney."

Lake Geneva News.com had this report on the criminal case.

The petitioner had turned his life around to a remarkable degree and has been drug-free for nearly five years.

There was testimony from a representative of the bar's recovey program that after five years of sobriety, there is a 14% chance of relapse.

The court:

In spite of Attorney C.'s remarkable efforts to turn his life around, the referee did express some concern about the possibility of relapse.  Although Ms. Albert put the risk of a relapse at approximately 14 percent for someone who has been free of drugs and alcohol for five years, the referee said when it comes to trusting a lawyer to serve the public and the legal profession, a 14 percent relapse rate still needs to be addressed.  For that reason, the referee recommends that Attorney C. remain under close monitoring, similar to his current WisLAP monitoring, for a minimum of two years from the date of his reinstatement.  The referee said extending the monitoring deadline beyond the October 1, 2014 expiration of his current WisLAP monitoring agreement will not only provide further support for Attorney C., but will also allow a quicker response to any relapse.

In response to the concerns of the two sheriff's deputies that Attorney C.'s term of suspension has been insufficient given his criminal convictions, the referee pointed out that this court saw fit to suspend Attorney C.'s license for a period of two years.  The referee said during that two-year period, Attorney C. has done everything possible to rehabilitate himself; he appears rehabilitated; and expert testimony shows there is very little more that can be done for him.  The referee said to deny reinstatement on the basis that a two-year suspension was not long enough would be second guessing this court's choice of the appropriate period of suspension and would also be ignoring Attorney C.'s nearly perfect record at rehabilitation up to this time.

The court order provides that the attorney's recovery be monitored for two years. (Mike Frisch)

Suspended Despite A Great Lawyer Name

An attorney who had converted funds and failed to maintain required records had been suspended for nine months with reinstatement conditioned on probation by the Massachusetts Supreme Judicial Court.

Nothing particularly notable about the case other than the fact that the attorney shares the name of perhaps the most famous lawyer in Masachusetts history -- Daniel Webster. (Mike Frisch)

Suspension For Failure To Return Unearned Fee

The Indiana Supreme Court has imposed a suspension of 30 days without automatic reinstatement in a case involving fee misconduct.

The attorney charged a flat fee of $12,000 for a criminal matter and was paid $6,000 up front. After a month, she was discharged. She had failed to keep records of the time devoted to the case and provided a reconstruction.

The hearing officer found that the attorney did little to earn a fee and that the reconstructed invoice was intended to deceive.

The hearing officer conclude that the attorney had only earned $1,000 and failed to return the unearned portion of the fee after discharge. (Mike Frisch)

Tailored Sanction

An attorney who had misappropriated funds held in connection with the sale of tailoring business was permanently disbarred by the Ohio Supreme Court.

The attorney initially defaulted on the charges and then tried to resign. The court did not accept his resignation.

In response to the question, here's a link to the record before the Supreme Court. (Mike Frisch)

Ethics Charges Filed After Murder Conviction

The Illinois Administrator has filed a complaint based on the following factual averments:

On or before October 16, 2006, Respondent agreed to represent Nova Frances Henry ("Henry") in matters related to her pending paternity suit against the father of her son. That matter had been docketed by the Clerk of the Circuit Court of Cook County as Nova F. Henry v. Eddy Curry, case number 2005D080721.

In or about December 2006, while Respondent was still acting as Henry’s attorney in relation to case number 2005D080721, Respondent and Henry began having a sexual relationship.

On January 24, 2009, Respondent shot and killed Henry, and her 10-month-old daughter, Ava Curry.

On March 19, 2009, a Grand Jury for the Circuit Court of Cook County, Illinois, returned a fourteen-count criminal indictment against Respondent stemming from the incident described in paragraph three, above. People of the State of Illinois v. Fredrick Goings, case number 09-CR-5704. A copy of the indictment is attached as Exhibit One.

The attorney was convicted of first degree murder and sentenced to life in prison.

NBC Chicago reported that the child victim was the daughter of former NBA center Eddy Curry. (Mike Frisch)