Wednesday, July 18, 2018
An attorney's misuse of the funds of his mother's estate to the detriment of his sister drew disbarment from the New York Appellate Division for the Second Judicial Department
Notwithstanding the mitigating factors present in this case, we find that the respondent’s misconduct is grave and warrants a severe sanction. The respondent engaged in a course of conduct to deprive Baillergeau of her rightful share of her inheritance. In so doing, he deceived Baillergeau, filed a false statement with the court, entered into a fraudulent conveyance, and misused his escrow account to shield funds from Baillergeau and other judgment creditors. Not only did he deprive Baillergeau of the share of the proceeds from the sale of their mother’s home, but he converted the funds for his own use. While acknowledging his obligation to repay Baillergeau, the respondent is paying her only what he receives in monthly social security payments, a payment level so low that it is unlikely that Baillergeau will live long enough to see the debt satisfied. The respondent’s motives were both venal and paternalistic. He acted in his own self interest and clearly took advantage of Baillergeau and her lack of education. He violated his fiduciary duty as administrator of Kathryn’s estate. Beyond the respondent’s misconduct surrounding the handling of Kathryn’s estate, the respondent ignored wholesale the rules governing attorney trust accounts, his most egregious violation being the use of his escrow account as a shield against Baillergeau as a judgment creditor and other creditors as well. The respondent’s feigned ignorance of the rules is belied by his possession of knowledge sufficient to use his escrow account as a shield. The respondent’s ignorance of the rules is inexplicable and inexcusable given the fact that he is no novice and is a certified public accountant.
Under the totality of the circumstances, we find that a disbarment is warranted.
The attorney was collaterally estopped from defending several allegations based on a Connect icut judgment. (Mike Frisch)
A July 6 decision from the Wisconsin Supreme Court reversing Marquette University's decision to terminate a tenured faculty member has generated diverse commentary from applause (The National Review) to dismay (The Chronicle of Higher Education)
Justice Ann Walsh Bradley in dissent touches on a point that, as a blogger with some audience, I consider before clicking on the "publish" button.
Missing from its opinion are key facts that informed [Professor] McAdams' action. After publishing the blog post, McAdams actively promoted it to local and national media outlets. The record reflects that McAdams did so by "distributing copies of the audio recording to interested journalists and bloggers, posting follow-up stories linking back to the Nov. 9 post, creating a category of posts linked to [junior colleague] Abbate by name, and arranging to appear on radio and television interviews about the story and subsequent controversy." McAdams wrote that he was aware that "'[w]hen one does something that gets national publicity, some jerks are going to say nasty things."
That prophecy was fulfilled here. Within hours of the blog post, Abbate started receiving negative emails, which only multiplied in the following weeks. She feared for her safety at Marquette and within weeks withdrew her dissertation proposal and transferred to another university despite adverse consequences to her academic progress...
In his letter to McAdams informing him of the disciplinary action taken, President Lovell is clear that it was not the views expressed in the blog post that led to discipline: "I think it is important to state that the sanctions being brought against you are solely based on your ACTIONS as a tenured faculty member at Marquette University, and have nothing to do with the political or ideological views expressed in your blog" (capitalization in original). President Lovell's letter thus makes clear that McAdams was disciplined for his actions, and not the blog post's viewpoint. Thus, the question is not "whether [the blog post's] contents remove the doctrine's protections." Id., ¶64. It is whether McAdams' actions are worthy of protection.
The majority recognizes that in engaging in extramural activities, a professor "occupies a 'special position in the civil community,' one that comes with 'special obligations.'" Majority op., ¶65. Included in these "special obligations" is the duty to "exercise appropriate restraint." Id.
McAdams did not exercise any restraint at all, let alone appropriate restraint. I agree with the FHC that "where substantial harm is foreseeable, easily avoidable, and not justifiable, it violates a professor's obligations to fellow members of the Marquette community to proceed anyway, heedless of the consequences."
McAdams' actions were well summarized in President Lovell's discipline letter, where he approvingly quoted from the FHC report: "[McAdams'] use of a surreptitious recording, along with Ms. Abbate's name and contact information, to hold Ms. Abbate up for public contempt on his blog, recklessly exposed her to the foreseeable harm that she suffered due to Dr. McAdams's actions."
The majority unpersuasively asserts that the vile commentary immediately following the blog post "does not mean the blog post instigated or invited the vileness." Majority op., ¶76. The only way the majority can reach this conclusion is by ignoring significant facts in the record.
First, McAdams knew the effect his blog post would have on Abbate. Among the FHC's factual findings that go unmentioned by the majority is that Dr. McAdams wrote in a blog post that "[w]hen one does something that gets national publicity, some jerks are going to say nasty things," indicating he was well aware of this modern media phenomenon. Indeed, that is exactly what happened here.
Shortly after the post's publication, Abbate began to receive hateful emails. The negative communications multiplied over the next several days, particularly after the incident received coverage on Fox News. She was forced to shut down her email account and remove her email address from Marquette's graduate student website.
Several of the communications Abbate received expressed violent and profane thoughts. She feared for her physical safety and experienced significant detrimental effects on her mental and physical health. A public safety officer was even posted outside Abbate's classes for two weeks.
Abbate ultimately withdrew from her dissertation proposal defense and transferred to another university. This transfer requires that she repeat three semesters of course work.
The record reflects that at the time of the events at issue in this case, Abbate was a graduate student in the philosophy department at Marquette. In addition to working on her dissertation, in the fall of 2014 Abbate taught two sections of Theory of Ethics, a philosophy class for undergraduates. I observe that throughout its opinion, the majority cherry-picks facts when it refers to Abbate as an "instructor" and not a "student." See, e.g., majority op., ¶1. In doing so, it colors the facts, disregarding the realities of the power dynamics at play here between a tenured professor and a graduate student.
My blogger reaction:
Much of what I publish likely brings unwanted attention to a person subject to public bar discipline, disqualification, judicial misconduct allegations and the like.
My overarching goal has been to shed some light on areas - particularly attorney discipline - that had historically been beyond public reach and that reflect on the ability of the bar and bench to self-regulate.
But I temper that with some sense that with a soapbox comes a level of responsibility. I often decline to post matters where I think that the educative value is outweighed by the embarrassment or harm it can cause to the individual to the extent that I am able to discern such harm.
If the harm is brought to my attention, I have deleted posts on request where such action appears appropriate.
I've also learned that, the more prurient or bizarre the conduct, the greater the traffic.
Whether or not the Wisconsin court is correct on the law, the use of a blog to intimidate and harass a junior colleague is the antithesis of my own views concerning responsible blogging. (Mike Frisch)
The Michigan Attorney Disciplinary Board has ordered an interim suspension of a convicted attorney.
62 CBS Detroit reported
A Huntington Woods attorney has pleaded guilty to fraud charges in what investigators say was a scheme involving a medical marijuana business.
The U.S. Attorney’s office says 48-year-old Robert Gross told investors that the $2 million they would give him were going to be used for a medical marijuana business and equipment. However, Gross used the money to gamble in Las Vegas. The investors involved in this incident included several clients of his law practice.
Gross also admitted to creating fraudulent documents as part of the scheme — that included falsely-notarized documents and a false net worth statement that he understood would be used in an attempt to secure additional funds from investors.
“As with all financial scams, the victims in this case received promises of hefty profits, but they were the ones who ended up paying the price,” Steve Francis, special agent in charge for Homeland Security Investigations Detroit, said in a statement. “As today’s plea agreement clearly demonstrates, HSI special agents and our partners are committed to holding perpetrators of financial crime accountable and making every effort to ensure victims receive justice.”
As part of the plea, Gross will have to pay back more than $3.5 million in restitution to the victims.
Monday, July 16, 2018
An attorney's consent to disbarment was approved by the District of Columbia Board on Professional Responsibility.
The Board, acting through its Chair, and pursuant to D.C. Bar R. XI, § 12(b) and Board Rule 16.2, has reviewed Respondent’s affidavit declaring his consent to disbarment and recommends that the Court enter an order disbarring Respondent on consent pursuant to D.C. Bar R. XI, § 12(b). Disciplinary Counsel’s motion asserts that Respondent requested that his disbarment not take effect immediately “so that he can close his practice and complete all client matters,” and Disciplinary Counsel consents to disbarment effective on September 21, 2018. The Court has previously ordered disbarment to be effective on a future date. See In re Vidal, No. 17-BS-1081 (D.C. Oct. 26, 2017) (disbarment effective October 31, 2017); In re Allen, No. 12- BG-1148 (D.C. Aug. 23, 2012) (disbarment effective October 1, 2012). Because a disbarment order issued prior to the effective date protects the public by providing notice of Respondent’s pending disbarment, the Board further recommends that the effective date of disbarment be September 21, 2018.
No reasons are disclosed although it appears from the docket numbers that Disciplinary Counsel had opened two matters in 2017.
The matter is In re Torrance J. Colvin.
The attorney had sued Quentin Tarantino on behalf of himself and his father as reported by The Guardian
Two scriptwriters have launched legal action against Quentin Tarantino, alleging that his 2012 film Django Unchained infringes the copyright of their screenplay Freedom, according to The Wrap. In the suit, Tarantino – along with the Weinstein Company and Columbia Pictures, which produced and distributed the film – Oscar Colvin Jr and Torrance J Colvin call Tarantino “an admitted thief”, quoting him as saying “I steal from every single movie ever made.”
They say they submitted their screenplay to the William Morris Agency, which discussed Tarantino as a possible collaborator, and that the overlap of ideas and characters from their script goes beyond coincidence.
Tarantino’s film, in which Jamie Foxx stars as the escaped slave of the title, pays homage to many classic movies, including Sergio Corbucci’s Django, which the film-maker credited as a source. But the Colvins say the final film bears “far more similarities” to Freedom.
The writers’ suit says: “Before Django Freeman, there was an escaped slave named Jackson Freeman who desired to purchase his family’s freedom from a malevolent plantation owner. Before Dr Schultz, there was Samson, another white man, who would assist Mr Freeman in his efforts to rescue his loved one(s) from slavery.”
The Colvins continue that they “provided the heart, bones and muscles to develop the unique idea that eventually would be transformed into Django Unchained … Tarantino took the plotlines and main story of Freedom and Tarantino-ised them.”
The papers were filed in a federal court in Washington DC and request compensatory damages “in an amount in excess of hundreds of millions of dollars to be proven at trial”.
The Louisiana Attorney Disciplinary Board recommends a stayed suspension for an attorney's two (widely spaced) DUIs
Ms. Stadler has had her own law firm since 1999. She practiced primarily family law and child protection.
Fourteen years prior to the hearing, on Christmas Day, she had drinks with friends and received a DWI. After that event, she totally cut alcohol out of her life and had not had a drink until the evening of August 30, 2014.
On August 30, 2014, she conducted a gun and knife show in Chalmette, Louisiana. The show was a success and that night a lot of the vendors went out to celebrate. That evening she had a few drinks. She realized she should not be driving and pulled over on the shoulder. She was waiting for someone to pick her up and apparently someone had called the police. The police arrived and gave her a DWI.
She described herself as a non-drinker and does not drink. Her level of alcohol was .104. Since August 30, 2014, she has not consumed any alcohol.
There were a number of character witnesses including a judge who has appointed her to several positions
She reports to him and [he] testified that she has earned his trust. He has never seen her drink and felt that she was a health nut.
And from the Bar's counselling program
After the testimony of Mr. Stockwell, Linda Stadler was called back to resume her testimony. She testified regarding her background and hiking the Appalachian Trail. Additionally, she indicated that since the 2014 DWI incident she has completely abstained from alcohol. Finally, as a result of the DWI she has forfeited her concealed carry permit for five years as a result of the conviction. In summary, she testified that alcohol is not a part of her life and assured the panel that this event would not happen again.
After reviewing the jurisprudence relating to sanctions imposed for misconduct similar to that of Respondent, which discussion is quoted previously herein, and considering the mitigating circumstances specific to Respondent, the committee recommended a one-year suspension, fully deferred. While the committee’s recommended sanction is not unreasonable, the Board finds that a six-month suspension, fully deferred, subject to a two-year probation period, would be a more appropriate sanction under the unique circumstances presented in this particular case. The more lenient suspension period appears warranted in this matter based on Respondent’s good character and reputation as attested by a judge, a client, and an adversary attorney; her active participation in community work in addition to her general practice; her accepting responsibility for her actions in both DWI cases and fully and timely complying with the requirements of probation in both cases; her cooperation with JLAP and compliance with the recommended therapy; no recommendation or requirement by JLAP that she enter into a recovery agreement or be subject to supervision or screening; her genuine remorse, and the fact that Respondent has no prior disciplinary record.
Dan Trevas previews an interesting case up for argument this Wednesday before the Ohio Supreme Court
In re Application Alice Auclair Jones, Case no. 2018-0496
Board of Commissioners on Character and Fitness
The Board of Commissioners on Character and Fitness recommends that attorney Alice A. Jones, who practiced law in Kentucky before transferring to her law firm’s Ohio office, not be admitted to the practice of law in Ohio without taking the Ohio bar examination. The board alleges that Jones is committing the unauthorized practice of law by continuing to represent Kentucky clients in Kentucky courts while residing and working in Ohio.
Jones has challenged the board’s decision that she is in violation of Rule 5.5 of the Rules of Professional Conduct. She asserts that because she doesn’t solicit or represent Ohio clients, she isn’t engaging in the unauthorized practice of law.
The Cincinnati Bar Association, which recommended Jones for admission without examination, and her law firm, Dinsmore & Shohl have filed amicus curiae briefs in her support, claiming the board’s interpretation of the rule would significantly harm the ability for Ohio law firms, companies, and government to attract quality attorneys who are in good standing in other jurisdictions. A joint brief supporting Jones was submitted by six of Ohio’s largest law firms.
Attorney Marries and Moves
In 2009, Jones became a member of the Kentucky Bar Association and began her legal career as an assistant commonwealth attorney in Louisville. She served in that positon until 2014, when she entered private practice as an associate attorney in the Louisville office of Huddleston Bolen.
In 2015, Dinsmore & Shohl acquired Huddleston Bolen, and Jones became an associate attorney in the Dinsmore Louisville office. Later that year, she planned to move to Cincinnati with her future husband and requested permission to transfer to Dinsmore’s Cincinnati office. The firm allowed her to transfer with the condition that she apply and be admitted to the Ohio bar, and that she continue to practice Kentucky law exclusively until her application was resolved. She filed her application to be admitted without examination to practice law in Ohio and then moved to Ohio.
Jones began working in Cincinnati, restricting her practice to Kentucky matters, then took maternity leave, before returning to practice.
A Cincinnati Bar Association committee interviewed Jones in April 2016 and recommended to the board that her application be approved.
Board Concerned About Continued Practice
After an April 2017 hearing, the board filed an entry stating that except for her physical presence in Ohio, there were no issues affecting Jones’ character, fitness, or moral qualifications to practice law. The board, however, ordered Jones to cease the practice of law and submit an affidavit stating she would only provide services that could be offered by a paralegal or law clerk until the board completed its review.
Jones responded that her practice wasn’t in violation of Ohio’s professional conduct rules and that she would continue to represent Kentucky clients. The board responded that the Ohio Supreme Court hasn’t directly addressed the issue of whether Rule 5.5 permits an attorney licensed in another jurisdiction to practice law, pending admission to Ohio, so long as the attorney isn’t practicing Ohio law. The board’s panel concluded Jones’ activities constitute the unauthorized practice of law, which makes her unfit for admission without exam to the Ohio bar.
Rule Prohibits Kentucky Representation, Board Argues
The character and fitness board notes that Rule 5.5 states, “A lawyer who is not admitted to practice in this jurisdiction shall not, except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” The board also indicates that Rule 5.5(c)(2) provides that a lawyer in good standing in another jurisdiction may provide services on a temporary basis.
The board explains that Jones contends her practice is “temporary” and that she is in compliance with the rule. However, the board argues the provision acts as an exception for those not establishing a “systematic and continuous presence.” The board concludes that Jones’ work and residence in Ohio is the type of sustained presence that disqualifies her for the temporary status exception.
“Whether an attorney is handling a matter involving Ohio law or the law of another jurisdiction, the attorney is in either case practicing law. Applicant is merely contending that while in Ohio she is not dealing with matters that arise under Ohio law, but that does not mean that she is not practicing law in Ohio while not admitted to do so,” the board’s report stated.
Attorney Challenges Board’s Interpretation, Raises Constitutional Issues
Jones contends that the board misinterprets the meaning of “temporary” in the rule, and notes that an official comment to the rule indicates attorneys moving to Ohio from another jurisdiction may continue to serve their existing clients on a “temporary” basis, which may last for extended periods of time based on the nature of the legal matter. She argues the board states the typical duration of an application to be admitted without exam lasts nine months, and argues that she has done nothing to prolong the matter, which has now taken more than two and a half years.
Jones maintains that the board misinterprets the rule, which allows a lawyer to establish a systematic and continuous presence in Ohio while awaiting admission. However, she argues she hasn’t established anything other than a physical presence in the state, which is not the same thing as a systematic and continuous presence. A systematic presence would require an attempt to solicit and represent clients in Ohio or being engaged in firm work on Ohio matters, which she hasn’t done.
As a matter of public policy, Jones argues the state’s concern regarding the unauthorized practice of law is the protection of the public from unqualified representation. She notes that she isn’t harming or risking the harm of any Ohioan because her practice is exclusively in Kentucky.
Additionally, Jones raises a constitutional question about whether the law discriminates against out-of-state lawyers moving to Ohio. She notes the rules allow an Ohio lawyer to practice law in Ohio while not physically present in the state. An Ohio lawyer can permanently move to Florida and practice law in Ohio every day through the use of a computer, she observes. She argues the U.S. Constitution’s Fourteenth Amendment’s privileges and immunities clause and due process clause is violated by allowing Ohio lawyers to practice from anywhere, while characterizing the work of a Kentucky attorney working out of Ohio as the unauthorized practice of law.
Law Firms Concerned About Board’s Position
The joint brief submitted by Thompson Hine, Frost Brown Todd, Bricker & Ecker, Squire Patton Boggs (US), Porter Wright Morris & Arthur, and Keating Muething & Klekamp takes no position on whether Jones should be admitted, but expresses concern about the board’s interpretation of Rule 5.5. The firms state that the board’s position doesn’t protect against any identifiable threat of harm that licensed attorneys from other states would pose by serving clients from other states while awaiting admission to Ohio. However, they find the board’s interpretation would be a “substantial impediment” to recruiting attorneys and unduly restricts the mobility of lawyers.
- Dan Trevas
Representing Alice Auclair Jones: David Greer, 937.223.3277
Representing the Cincinnati Bar Association: Brian Dershaw, 513.357.9359
Misconduct in Minnesota drew a reciprocal Massachusetts sanction per this summary on the web page of the Massachusetts Board of Bar Overseers
The respondent was also admitted to practice in the State of Minnesota. On January 17, 2018, the Supreme Court of Minnesota suspended the respondent from practice for sixty (60) days, effective immediately and subject to conditions upon reinstatement, for her conduct while representing two clients. The respondent: failed to adequately represent her clients, unnecessarily subpoenaed the billing records of predecessor attorneys, continuously interrupted the judge in the courtroom, sued the judge in his personal capacity for his actions as a judge, impugned the judge’s character in several letters to members of the Board on Judicial Standards, and defied the court’s scheduling orders. That conduct violated Minnesota Rules of Professional Conduct 1.1, 3.1, 3.4(c), 3.5(f), 4.4(a), 8.2(a) and 8.4(d).
On May 22, 2018, the Supreme Judicial Court (Kafker, J.) entered an order suspending the respondent for sixty days, retroactive to January 17, 2018, the effective date of her suspension in Minnesota. The respondent’s reinstatement in Massachusetts is conditioned on her reinstatement to the practice of law in the State of Minnesota.
The order of the Minnesota Supreme Court finding misconduct in a family law matter is linked here.
Before the official start of the second day of trial, but after the judge had briefly taken the bench, MacDonald approached the court reporter and accused her of inaccurately recording the prior day's testimony. MacDonald announced that, if the court reporter was unwilling to accurately record the events at trial, she would do so herself. MacDonald then began taking pictures of the courtroom. Court deputies approached MacDonald and reminded her that she knew not to take pictures in the courtroom. See Minn. Gen. R. Prac. 4.01 (“[N]o pictures ․ shall be taken in any courtroom ․ during a trial․” (emphasis added)); Order Regarding Cameras and Other Recording Equipment in Court Facilities (Dakota Cty. Dist. Ct. July 1, 2005) (providing, in a standing district-court order adopted “pursuant to Rule 4 of the General Rules of Practice,” that “[n]o pictures ․ shall be taken in any courtroom․” (emphasis added)).
Later that morning, during a recess, the deputies again approached MacDonald and advised her that she would receive a contempt citation for taking photographs in the courtroom. MacDonald initially cooperated with the deputies by accompanying them to a holding area to complete the necessary paperwork, but thereafter refused to give the deputies her full legal name, date of birth, and address. When asked for her name, for example, she replied, “[y]ou know my name.” 8 The deputies tried for approximately 15 minutes to obtain basic biographical information for the citation, but MacDonald refused to cooperate. Eventually, the deputies placed her in custody.9
The deputies asked MacDonald to remove her jewelry, glasses, and shoes, and to submit to a pat-down search. The deputies then placed MacDonald in a holding cell. When the time came for her to return to the courtroom, MacDonald refused to stand up or walk to the courtroom on her own. The deputies therefore placed her in a wheelchair and handcuffed her hands to a belt that they had secured around her waist to bring her to the courtroom. Video footage of the incident shows that the deputies attempted to return MacDonald's shoes, but she refused to put them on.
While MacDonald was in custody, S.G. retrieved MacDonald's files, including her trial materials, and left the courthouse. Once MacDonald returned to the courtroom, the judge reminded her that she had an obligation to her client and repeatedly inquired about how she wished to proceed, including offering her numerous chances to contact her client and retrieve her files. Each time, MacDonald refused to respond or otherwise seek an accommodation. Her involvement in the remainder of the trial was minimal. In fact, MacDonald agrees that she did not competently represent her client, but she testified at the disciplinary hearing that her inadequate representation was due solely to her illegal arrest. She maintains that there was “nothing [she] could say or do” to correct the situation and that she “didn't do anything wrong.”
The referee found that MacDonald's actions, both before and after her arrest, were an effort to produce a mistrial or support an appeal in S.G.'s case, or to gather evidence for the federal lawsuit against the judge. The referee concluded that MacDonald's conduct violated Minn. R. Prof. Conduct 1.1, 3.4(c), 3.5(h), and 8.4(d). The referee also concluded that MacDonald's separate failure to perfect an appeal in S.G.'s case, by neglecting to serve the notice of appeal on the guardian ad litem in a timely fashion, violated Minn. R. Prof. Conduct 1.1.
Minnesota Lawyer reported on the sanction. (Mike Frisch)
Sunday, July 15, 2018
The Maryland Court of Appeals has disbarred an attorney without a hearing based on a federal conviction
This attorney discipline proceeding involves a lawyer who, in the words of the United States Court of Appeals for the Fourth Circuit, “concocted and executed a scheme to launder drug proceeds that he obtained from a client.” United States v. Blair, 661 F.3d 755, 759 (4th Cir. 2011) (per curiam), cert. denied, 567 U.S. 905 (2012). In its opinion disposing of the first appeal in the lawyer’s criminal case, the Fourth Circuit set forth the facts underlying the lawyer’s convictions for money laundering, witness tampering, making a false statement, and willful failure to file a federal income tax return—all of which the Fourth Circuit affirmed. See Blair, 661 F.3d at 759.
According to the Fourth Circuit, Elizabeth Nicely Simpson, a prospective client, told Walter Lloyd Blair, Respondent, a member of the Bar of Maryland, that she possessed a safe that contained drug money belonging to Anthony Rankine, who had operated a large marijuana distribution ring near Richmond, Virginia. See id. at 759-60. Among other things, Blair invented a lie regarding drug money being from a legitimate source, and told Simpson to tell the lie if anyone inquired about the drug money. See id. at 760-61. Without being asked to do so, Blair caused a corporation to be created through which Simpson could buy and sell real estate with the drug money. See id. at 761.
After agents of the Federal Bureau of Investigation (“the FBI”) contacted Simpson to interview her, Blair told Simpson not to tell the FBI agents about the drug money, and to instead talk to the agents only about a car that Simpson had purchased for Rankine. See id. at 762. Blair told Simpson that, if the money came up, she should use the lie that he had made up regarding the money being from a legitimate source. See id.
In a federal court in Virginia, Blair applied for admission pro hac vice to represent one of Rankine’s associates as co-counsel. See id. at 763. In his pro hac vice application, Blair misrepresented that he had never been subject to disciplinary action by a bar association. See id. Contrary to Blair’s application, the Supreme Court of Appeals of West Virginia had previously suspended him from the practice of law in West Virginia based on witness tampering. See id. at 763, 767.
During an investigation of the marijuana distribution ring and money laundering scheme, FBI agents discovered that Blair had failed to file federal income tax returns for two years, including the year in which he had taken some of the money from the safe for himself. See id. at 768, 761.
In the United States District Court for the District of Maryland (“the District Court”), the United States Attorney’s Office for the District of Maryland filed an indictment against Blair, charging him with: nine counts of money laundering; one count each of witness tampering, obstruction of justice, and making a false statement; and two counts of willful failure to file federal income tax returns. A jury found Blair guilty of all fourteen charges. Blair’s convictions came to Bar Counsel’s attention.
Delay was not a mitigating factor
Blair did not inform Bar Counsel of the Fourth Circuit’s opinion for more than six years, i.e., until after he was released from federal custody. On December 1, 2017, after he had been released from custody, Blair filed the Petition for Reinstatement, in which he advised Bar Counsel for the first time that the Fourth Circuit had affirmed thirteen of his convictions. Within two months of Blair’s notification, on January 30, 2018, Bar Counsel filed the Motion for Final Disposition or, in the Alternative, Further Proceedings, recommending disbarment.
And the court majority found no need to have a hearing
Maryland Rule 19-738(i) contemplates that, where a final judgment of conviction establishes that an attorney committed the serious crime in question, the attorney may introduce evidence or otherwise show cause why discipline should not be imposed. A careful review of our attorney discipline jurisprudence and this attorney discipline proceeding’s unique circumstances makes clear that there is no reasonable basis on which to exercise our discretion to designate a hearing judge for the purpose of determining whether there are any mitigating factors.
To begin, the case for disbarment is overwhelming. “[G]enerally, disbarment is the appropriate sanction for a lawyer’s misconduct where the lawyer commits a crime that establishes that the lawyer is unfit to continue to practice law.” Attorney Grievance Comm’n v. Greenleaf, 438 Md. 151, 170, 91 A.3d 1066, 1077 (2014) (cleaned up). For example, this Court has disbarred: a lawyer who solicited for sexual acts a person whom he believed to be under the age of consent, see id. at 167, 91 A.3d at 1075; a lawyer who obstructed and hindered a law enforcement officer by helping a murder suspect flee the country, see Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 249-50, 812 A.2d 981, 995-96 (2002); a lawyer who illegally transported a handgun and committed battery when he abused his spouse and child, see Attorney Grievance Comm’n v. Painter, 356 Md. 293, 307, 305, 739 A.2d 24, 32, 31 (1999); a lawyer who possessed marijuana with the intent to distribute, see Attorney Grievance Comm’n v. Dechowitz, 358 Md. 184, 193, 186, 747 A.2d 657, 661, 658 (2000); a lawyer who committed misprision of a felony, see Attorney Grievance Comm’n v. Wingerter, 400 Md. 214, 217, 236, 929 A.2d 47, 49, 60 (2007); a lawyer who committed conspiracy to commit immigration fraud, Attorney Grievance Comm’n v. Garcia, 410 Md. 507, 529, 509-10, 979 A.2d 146, 159, 147 (2009); and a lawyer who violated the Sherman Antitrust Act, see Attorney Grievance Comm’n v. Nusbaum, 436 Md. 609, 617, 613, 84 A.3d 98, 103, 101 (2014). Unlike the lawyers in these cases, Blair did not commit only one or two crimes; he committed thirteen. Additionally, of particular significance here, this Court has disbarred “attorneys who have
committed tax-related violations with fraudulent intent.” Attorney Grievance Comm’n v. Worsham, 441 Md. 105, 133, 105 A.3d 515, 531 (2014) (cleaned up).
And disbarment has been imposed for microwaving a cat as in Attorney Grievance Commission v. Protokowicz
"Ms. Sanders later discovered a fish decoy was missing and subsequently learned that items of jewelry were missing as well. Kerry's watch was found in the driveway. On Friday, October 18, Ms. Sanders used her microwave oven for the first time since the death of Max. She was defrosting a bagel and smelled the distinct odor of cat. Upon examining the interior of the microwave, she observed cat hair. It was then she realized how Max had died.
"Precisely what happened in the early morning hours of October 14 is not at all clear. The evidence, however, is sufficient to persuade the court that respondent and Mr. Sanders entered the home of Ms. Sanders without authorization, ransacked it, clogged the toilet, stole personal property and killed the family kitten Max. The court rejects respondent's contention that Max's death was accidental.
Judge Harrell would grant a hearing before imposing sanction
I dissent, although with the utmost respect for some of the views, reasons, and outcomes expressed in the Majority opinion. For example, I concur that Respondent’s Petition for Reinstatement (Misc. Docket AG No. 44) should be denied, if for no other reasons than Blair’s failure to comply with the information – sharing requirements of Md. Rule 19-751(c) and (d). That being said, I disagree with the Majority opinion’s rush-to-judgment in disbarring Blair, at least at this point in the proceedings under Misc. Docket AG No. 83. I submit that additional fact-finding may be required before a final sanction is imposed. I would remand No. 83 to a judge of the Circuit Court for Prince George’s County for an evidentiary hearing limited to the accepted factors of sanction mitigation (as identified in the Majority opinion at 25) for why, if at all, the sanction appropriate for
Blair’s misconduct should be less than disbarment. The judge hearing this matter should make credibility assessments of any witnesses marshalled by Blair and render written findings of fact (and, as may be appropriate, conclusions as to the legal relevance of any evidence offered on any proper mitigation factor).
Judges Adkins and Raker agreed.
The District of Columbia Court of Appeals summarily disbarred him in 2012.
Unlike Maryland, D.C. automatically disbars an attorney for any felony conviction that involves moral turpitude per se. (Mike Frisch)
The Law Society of Upper Canada Tribunal Hearing Division has sanctioned an attorney for dishonest billing practices
The Licensee engaged in conduct that would normally attract the penalty of revocation.
The Agreed Statement of Facts (“ASF”) entered into by the Licensee on June 27, 2017 indicates that LAO identified 42 instances where the Licensee entered an online account for a contested indictable trial with all four tariff enhancers between March 2005 and November 2009.
LAO selected 10 of these accounts for further investigation and concluded that the Licensee was overpaid for fees and disbursements billed, as he had knowingly misrepresented the nature and extent of the proceedings and services performed. For example, the Licensee billed for indictable offences when the Crown had elected to proceed summarily, for services not provided, or for contested trials where the client(s) pleaded guilty.
In the 10 accounts investigated, the Licensee knowingly overbilled LAO by the sum of $29,540.61, more or less. In addition, LAO discovered that the Licensee had acted for certain clients privately while or after serving as LAO Duty Counsel, both of which are prohibited either by the provisions of Regulation 106/99 or by the Duty Counsel Manual.
Mitigation was considered
we accept that the Licensee’s depression and alcoholism made him reckless. We accept that his depression and alcoholism are causally connected to the misconduct we found. We find that the Licensee’s depression and alcoholism, combined, form an exceptional circumstance, which explains the Licensee’s misconduct and displaces the presumption in Mucha.
Even where the presumption is displaced, we must move on to consider whether, in all the circumstances, a penalty other than termination of licence is appropriate. We cannot find that it is in this case.
Mucha requires consideration of whether the misconduct is likely to recur. On the evidence in this case, the Licensee’s ongoing depression and alcoholism cause reckless, uncaring behaviour. In our view, the misconduct probably will recur, so long as the Licensee continues to minimize the wrongdoing and his alcoholism and avoids medical and psychiatric treatment for his depression. The evidence in this case also does not meet the requirement in Bishop that the public and the professions can be assured of the Licensee’s future integrity given that the recklessness caused by his alcoholism and depression leads him to acts of financial malfeasance.
To be clear, we do not find that depression causes dishonesty. In our view, the evidence does not establish that the Licensee’s depression caused dishonesty. In this case, combined with alcoholism, it caused recklessness which happened to manifest itself in dishonest overbilling of LAO. Each case must be considered on its own facts, to see whether the tests in the jurisprudence are met and whether the presumption in Mucha is displaced.
Dishonest overbilling of any client is serious misconduct. It is particularly serious in the case of LAO, since every dollar improperly taken deprives a qualified client of a licensee’s assistance and, thereby, denies access to justice. Dishonest overbilling of LAO also causes high administrative and investigative costs, which further burden the publicly-funded system.
The Law Society acknowledges its obligations under the Code, and recognizes that mental conditions, such as depression, are a disability which must be accommodated. In our view, accommodation in this case, such as a long suspension with oversight and rehabilitation, would cause undue hardship to the public interest, to the Law Society’s reputation as a legal regulator, and to the reputation of the professions the Law Society regulates. We have already found that the Licensee might well misconduct himself in the same way again, since we saw no evidence of his full acceptance of the seriousness of his condition and the recommended treatment.
This means that the test in Bishop to depart from termination of licence is not met. The circumstances in this case, in our view, do not rise to a level where it would be obvious to members of the public and the professions that they no longer need be concerned about the Licensee’s honesty and integrity.
[We conclude that, although the Licensee’s evidence and submissions meet the test of exceptional circumstances and displace the presumption of revocation, we are unable to accede to his submission for a lengthy suspension followed by restrictions and supervision. In our view, termination of the Licensee’s licence is still required.
If the Licensee does not surrender his licence on or before July 31, 2018, his licence shall be revoked.
Friday, July 13, 2018
How many lawyers are admitted to practice in both Hawai'i and Arkansas?
At least one - a fact gleaned from an order of reciprocal discipline of the Hawai'i Supreme Court imposing an 18-month suspension.
we find that, on October 3, 2016, the Arkansas Supreme Court Committee on Professional Conduct suspended Respondent Rhodes for charging an unreasonable fee and
for engaging in unnecessary billing that was dishonest or deceitful in nature, in violation, respectively, of Rules 1.5(a) and 8.4(c) of the Arkansas Rules of Professional Conduct, conduct which, if engaged in this jurisdiction, would constitute violations of Rules 1.5(a) and 8.4(c) of the Hawai'i Rules of Professional Conduct.
The misconduct involved padding bills for his (minor) role in a "simple" guardianship proceeding.
The Arkansas order is linked here. (Mike Frisch)
The Wisconsin Supreme Court has accepted and imposed a stipulated license revocation
Goldmann does not contest that he committed all 38 acts of professional misconduct alleged by the OLR. He also does not contest that the revocation of his Wisconsin law license is appropriate discipline for his misconduct, along with a requirement that he comply with a monetary judgment obtained against him by a client regarding unearned advance fees.
After fully reviewing the matter, we approve the stipulation and revoke Attorney Goldmann's Wisconsin law license. His transgressions leave us no choice: Attorney Goldmann has shown himself to be unwilling or unable to conform his conduct to the standards that are required to practice law in this state. We also adopt the stipulated requirement that he comply with his client's monetary judgment against him. Finally, because this matter is being resolved without the appointment of a referee, and because the OLR has not sought costs, we impose no costs.
Attorney Goldmann's work in ten client matters gave rise to all but one of the misconduct claims in this case. It is not necessary to describe the particular factual allegations
of Attorney Goldmann's misconduct in each client matter; a synopsis will suffice. Beginning in 2015 and continuing into 2017, Attorney Goldmann effectively abandoned the ten clients identified in the OLR's complaint: M.G. (Counts 1-4); S.M.C. (Counts 5-7); A.L.R. (Counts 8-11); E.G.H. (Counts 12-16); C.H. (Counts 17-21); R.C.M. (Counts 22-23); R.D.S. (Counts 24-26); A.P. (Counts 27-30); S.D.Y. (Counts 31-33); and M.D.C. (Counts 34-37). Attorney Goldmann undertook to represent these clients in a variety of matters——criminal cases, civil cases, parental rights cases, etc.——but he failed to take necessary actions on their behalf. Among other things, he failed to attend court hearings; failed to file crucial documents; failed to comply with court orders; failed to forward his clients' case files to the clients or successor counsel; failed to refund unearned advance fees; failed to be forthright about his actions; and failed to respond to his clients' requests for information or otherwise keep them updated on their cases. Once the aggrieved clients contacted the OLR, he failed to cooperate with the OLR's investigation.
The remaining misconduct claim in this case (Count 38) concerns certain false and misleading information that Attorney Goldmann gave his employing law firm about his level of professional experience and success. The firm included this information on its website, with Attorney Goldmann's knowledge and understanding.
We agree that the revocation of Attorney Goldmann's Wisconsin law license is in order. Attorney Goldmann has engaged in a widespread pattern of serious professional misconduct that has harmed his clients and tarnished the profession. A sanction of revocation is clearly supported by our precedent.
He was already suspended.
Attorney Goldmann's license to practice law in Wisconsin is currently suspended. On June 15, 2017, this court temporarily suspended his law license for his willful failure to
cooperate with the OLR investigation of this matter. In October 2017, his law license was administratively suspended for failure to pay bar dues and assessments and failure to file the required trust account certification. The parties report that Attorney Goldmann abandoned the practice of law in mid-2017.
A recently-sentenced attorney has been suspended by the Pennsylvania Supreme Court as a result of a criminal conviction.
The Morning Call reporte
Calling it a warning to others who might offer or take bribes, a federal judge on Friday sentenced former Allentown lawyer Scott Allinson to more than two years in prison for a pay-to-play scheme in which he was convicted this year with former Mayor Ed Pawlowski.
U.S. District Judge Juan R. Sanchez said Allinson’s offer to gather donations for Pawlowski’s U.S. Senate campaign in exchange for promises of legal work for his firm undermined the public’s right to a fair, open and honest city contracting process and damaged trust in elected officials.
“The sentence I impose today must reflect the seriousness of the offense and must send a strong, powerful message to the community of the Lehigh Valley, Allentown and the nation,” Sanchez said.
Allinson was led by U.S. marshals from the courtroom after Sanchez revoked his bail, agreeing with prosecutors that Allinson’s assets made him a flight risk.
The suspension is an interim one until final discipline is imposed. (Mike Frisch)
Thursday, July 12, 2018
An Illinois Hearing Board accepted a stipulated reprimand of an attorney who pleaded guilty to but was not convicted of misdemeanor battery
On the evening of June 24, 2016, and again on the evening of June 25, 2016, at the request of his spouse, Respondent changed the light bulbs at their home in northwest suburban Inverness. On June 25, 2016, Respondent and his spouse were discussing household responsibilities, including his spouse's request that Respondent change additional light bulbs. By 9:30 that evening, Respondent had not finished changing the light bulbs.
On the evening of Sunday, June 26, 2016, Respondent sat down in a chair after dinner to watch television. Respondent and his spouse continued their discussion about the light bulbs. The discussion continued about other topics as Respondent was on a stepladder finishing changing the burned-out light bulbs in the kitchen.
Respondent recalls that his spouse was yelling at him as he came down from the stepladder. Respondent then put his hand up and placed it on his spouse's neck. Respondent removed his hand from his spouse's neck when she told him she could not breathe. That same night, Respondent's spouse contacted the Palatine Police Department to file a police report against Respondent based on his conduct.
On June 26, 2016, officers arrived at Respondent's home, and spoke with both Respondent and his spouse. Respondent's spouse told the officers that she had not lost consciousness, and informed them she was declining medical treatment because she did not feel she was injured. The officers noted in their report that they had observed visible red marks on Respondent's spouse's neck. The officers then arrested Respondent.
On June 27, 2016, the Cook County State's Attorney charged Respondent with Domestic Battery in violation of 720 ILCS 5/12-3.2(a)(2). The matter was captioned The People of the State of Illinois v. Brian J. Wanca, and docketed in the Domestic Violence Division of the Circuit Court of Cook County as case number 16 DV 30448.
On October 3, 2016, Respondent pled guilty to Battery, a Class A misdemeanor. On that date, Judge Samuel J. Betar entered an order sentencing Respondent to twelve months of court supervision, requiring him to complete a drug and alcohol evaluation and adhere to any corresponding treatment recommendations, and completion of a domestic violence program.
On September 28, 2017, having complied with the conditions imposed by Judge Betar, Respondent's supervision was terminated as "satisfactory" and no judgment of conviction was entered against Respondent as a result of his conduct.
In mitigation, Respondent has not been disciplined since his admission in 1980, and he has been cooperative in the disciplinary process. Respondent has expressed remorse for his conduct and promptly complied with all conditions related to his supervision. He has also engaged in pro bono work throughout his legal career, and, in various class action matters he has handled, has distributed in excess of one million dollars in cy pres donations (distributions of class funds to non-profit organizations that advance the public interest)
The Ohio Supreme Court imposed a partially-stayed suspension for misconduct that included the following
After attending a December 18, 2014 hearing, Benbow and [client] K.V. entered a courthouse conference room to wait for the magistrate to complete the final orders. The conference room was equipped with a video camera that transmitted a live feed that was monitored by courthouse deputies. The video shows—and Benbow now stipulates—that he was initially seated across from K.V. but that he later moved to a chair next to her and placed his file and winter coat over his lap. Together, they placed K.V.’s hand under Benbow’s coat and onto his lap, and for the next eight minutes she fondled him and rubbed his penis through his clothing. The fondling ceased when Benbow answered a telephone call, during which the courthouse deputies delivered the magistrate’s orders. Benbow and K.V. then left the courthouse together, hugged, and went their separate ways. Their conduct in the conference room was referred to the Coshocton County Sheriff’s Office.
Dan Trvas summarized the case
A Zanesville attorney caught on courthouse security cameras engaging in sexual activity with a client, then lying about the encounter during a disciplinary investigation, has been suspended by the Ohio Supreme Court for two years, with one year stayed.
In a 6-0 per curiam decision, the Supreme Court today suspended Brian W. Benbow, who admitted to misrepresenting the facts about his personal relationship with his client before eventually stipulating that he violated multiple rules governing the conduct of Ohio attorneys. Justice Mary DeGenaro did not participate in the case.
Relationship Begins During Child-Visitation Proceedings
Benbow was hired by a woman identified in court records as K.V. in May 2014 to represent her in a child-visitation proceeding in Coshocton County Common Pleas Court.
Before the judge could issue a final decision in the matter, Benbow and K.V. developed a personal relationship in which they exchanged texts and Facebook messages of a sexual nature along with explicit photographs of themselves. The two agreed to delete the communications immediately after receiving them, but seven digital photos of K.V. were saved to Benbow’s personal computer.
Activity Caught on Camera
In September 2014, the father of K.V.’s child asked the court to modify his visitation order. After a December 2014 hearing, Benbow and K.V. entered a Coshocton County courthouse conference room to wait for the magistrate to complete the final orders. The conference room was equipped with a video camera, which transmitted a live feed monitored by courthouse deputies. Video footage showed Benbow initially seated across from K.V. But he moved to a chair next to her and placed his file and winter coat over his lap. The two placed K.V.’s hand under Benbow’s coat.
The conduct in the conference room was reported to the Coshocton County Sheriff’s Office, which interviewed K.V. After the interview, K.V. arranged to meet with Benbow. At a meeting at his house, Benbow checked K.V.’s phone and patted her down to ensure she was not recording the conversation. Benbow advised her to hire another lawyer and then blocked all communication with her.
Benbow Reports Activity
About a month after K.V. and Benbow met, Benbow self-reported some of his improper activities to the Columbus Bar Association. The letter misrepresented the extent of the relationship with K.V. and the nature of the conduct in the conference room, and he denied violating any professional misconduct rules.
During a September 2016 deposition with the Office of the Disciplinary Counsel, Benbow omitted relevant information under oath, and misrepresented facts, including that he exchanged explicit photographs with K.V. and his conduct that was caught on courthouse video. After reviewing the deposition transcript, Benbow submitted a report to clarify his testimony, but the report omitted key information.
The disciplinary counsel filed a complaint in April 2017 with the Board of Professional Conduct alleging that Benbow violated multiple rules. A three-member panel of the board conducted a hearing on the matter. The board reported Benbow as non-cooperative, stating that his testimony was “evasive and argumentative.” It noted Benbow admitted he was “struggling with denial.”
Disciplinary counsel and Benbow stipulated that Benbow violated several rules including: soliciting or engaging in sexual activity with a client; knowingly making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
The board also concluded that Benbow’s “repeated and improper sexual conduct with his client and the subsequent course of dishonest conduct” warranted a finding that he engaged in conduct that adversely reflects his fitness to practice law.
Court Finds Suspension Warranted
When considering a sanction, the Court considers aggravating circumstances that would increase the punishment it imposes on a lawyer and mitigating factors, which could lead to a reduced penalty.
The parties agreed and the board found Benbow had a dishonest and selfish motive, did not cooperate in the disciplinary process, made false statements, submitted false evidence, and engaged in deceptive practices during the disciplinary process. The board also found he committed multiple rule offenses, acted for his own gratification, harmed a vulnerable client, lied under oath, and harmed the profession by engaging in sexual activity in the courthouse.
Among the mitigation factors, the board found Benbow had no prior disciplinary record, submitted 40 letters attesting to his good character and reputation, and demonstrated he sought help from the Ohio Lawyers Assistance Program (OLAP). The board noted he didn’t seek OLAP assistance until after the disciplinary counsel filed its 2017 complaint.
“Because Benbow not only engaged in an inappropriate sexual relationship with a client, but also engaged in a course of dishonest conduct involving multiple false denials and lies under oath, we agree that a two-year suspension, with the second year stayed on the conditions recommended by the board, is the appropriate sanction for this case,” the Court stated.
Benbow must not commit further misconduct, remain in compliance with his OLAP contract, and if reinstated, must serve one year of monitored probation.
As expected, the District of Columbia Court of Appeals side-stepped the issue of a ridiculous Board on Professional Responsibility rule and denied reinstatement
Given our disposition, we need not address whether the Hearing Committee should have considered the additional unfavorable evidence, proffered by Disciplinary Counsel, related to petitioner’s conviction.
Applying heightened scrutiny, the court found insufficient evidence of two of the five so-called Roundtree factors
Although petitioner provided assurances of his new character, he offered no examples of post-discipline conduct from which his personal growth can be reasonably inferred. Applying heightened scrutiny, we deem the lack of evidence regarding petitioner’s present character to weigh against reinstatement
A petitioner’s post-disbarment legal work may demonstrate his competence to practice. See, e.g., Bettis, 644 A.2d at 1030 (petitioner established his competence where he “worked as a law clerk . . . and improved his legal research and writing skills”). However, like the Board, we deem significant petitioner’s failure to explain whether his post disbarment work required legal analysis or otherwise improved his legal knowledge or skills. See, e.g., Tinsley, 668 A.2d at 838 (appending Board report) (petitioner failed to demonstrate his competence where he provided no details concerning his legal teaching experiences). Nor did petitioner call witnesses who could testify to the quality or nature of his work. See, e.g., In re Stanton, 589 A.2d 425, 427 (D.C. 1991) (per curiam) (petitioner failed to prove his competence where no supervisory lawyer testified to his work).
Applying heightened scrutiny, we find that the remaining evidence is too meager to establish his competence to practice, and therefore conclude that this Roundtree factor weighs against reinstatement.
My coverage of the controversy is linked here.
In an earlier blog post, I noted that a test case had finally arisen to challenge the single worst rule ever dreamed up by the District of Columbia Board on Professional Responsibility.
I have been waiting a long time for a case to come along that would provide District of Columbia Bar (now Disciplinary) Counsel with an opportunity to test the single most public protection-unfriendly rule of the Board on Professional Responsibility, the infamous Board Rule 9.8
Evidence of unadjudicated acts of misconduct occurring prior to the Court’s order of disbarment or suspension with fitness (“unadjudicated acts”) may be introduced by Disciplinary Counsel at a hearing on reinstatement only if: (i) Disciplinary Counsel demonstrates that the attorney seeking reinstatement received notice, in Disciplinary Counsel’s letter dismissing the complaint alleging the unadjudicated acts, that Disciplinary Counsel reserved the right to present the facts and circumstances of the unadjudicated acts at a reinstatement hearing; and (ii) Disciplinary Counsel gives notice in the Answer to the petition for reinstatement that he intends to raise the unadjudicated acts at reinstatement.
Let me say it plainly: No legitimate public policy purpose underpins any rule that excludes relevant evidence in the reinstatement hearing of a disbarred attorney.
Question: who in their right mind dreams up a procedural rule to exclude evidence in a reinstatement matter on grounds other than its merits?
Answer: the District of Columbia Board on Professional Responsibility.
And there is no reason for Disciplinary Counsel to waste its limited resources on sending notices of anything to disbarred lawyers. Rather, the petition for reinstatement makes any past misconduct fair game if proven.
Wednesday, July 11, 2018
A summary of a May 1 oral argument from the web page of the Missouri Supreme Court
In re: Eric G. Zahnd
Listen to the oral argument: SC96939 MP3 file
Chief Disciplinary Counsel Alan Pratzel represented his office in Jefferson City during arguments; Zahnd was represented by Edwin Smith of Polsinelli PC in St. Joseph. Judge George E. Wolf III – a circuit judge in the 16th Judicial Circuit (Jackson County) – sat in this case by special designation in place of Judge W. Brent Powell.
Eric Zahnd has served as the elected prosecutor in Platte County since 2003. This disciplinary case arises out of matters relating to his office’s prosecution of Darren Paden, a prominent member of the Dearborn community in northern Platte County. In December 2012, the prosecutor’s office charged Paden with two counts of first degree statutory sodomy, alleging he had admitted to sexually assaulting one of his daughters. Paden posted bond and was released from jail, after which he made statements to various members of the community, causing his daughter to feel ostracized. In August 2015, when Paden pleaded guilty as charged, he admitted he had lied to people in the community. Before Paden’s sentencing hearing, held in October 2015, the circuit court received a number of letters directly from individuals referencing Paden’s character, apparently upon solicitation of Paden’s father or attorney. Some letters questioned Paden’s guilt, the victim’s character or both. The letters were placed in the court’s public file, with copies sent to the prosecutor’s office. Zahnd or his assistants contacted several of the letter writers. Zahnd alleges his office did so to advise the writers their letters were part of the public record, to apprise them of the full facts of the case and to consider whether to call them as witnesses during the sentencing hearing. The chief disciplinary counsel alleges the prosecutor or his representatives told the letter-writers their names would be included as supporters of child molestation in a news release the office was preparing to send to media if the writers did not withdraw their letters. The day before the sentencing hearing was scheduled to be held, Zahnd permitted an assistant prosecutor to post to the office’s Facebook page that: Paden would be sentenced the next day, a number of people had submitted letters to the court in support of Paden and anyone wishing to show support for the victim could attend. During the hearing, the defense did not mention the letter-writers or ask the circuit court to consider the letters when imposing sentence, and the assistant prosecutor referenced the letter-writers only as a group. After the circuit court imposed two consecutive sentences of 25 years in prison, the prosecutor’s office distributed to the media a news release with a headline and quotations from Zahnd expressing disappointment about community members supporting a defendant who had confessed to sex crimes against a child over the victim. The news release listed the names and current or former employers of certain individuals who had written letters in support of Paden. Three of the individuals named in the news release allege they were harmed as a result.
The chief disciplinary counsel instituted disciplinary proceedings against Zahnd in July 2017. A disciplinary hearing panel conducted an evidentiary hearing. During the hearing, Zahnd denied any wrongdoing or any violations of the rules of professional responsibility and said he included information about the letter-writers in his news release to show the public that criminal defendants supported by prominent community members will not receive preferential treatment. In December 2017, the panel issued its decision finding Zahnd violated certain rules of professional responsibility but not others and recommending he be reprimanded. Zahnd rejected the recommendation. The chief disciplinary counsel asks this Court to suspend Zahnd’s law license with no leave to apply for reinstatement for at least six months.
This case presents two primary questions for this Court – whether the evidence shows Zahnd violated rules of professional responsibility and, if so, what discipline, if any, is appropriate. Related issues include the extent to which Zahnd’s public statements are protected by the First Amendment or within the “safe harbor” of the rule governing trial publicity; what purposes the news release identifying certain letter writers served; and whether the rules of professional conduct are vague, overly broad or otherwise failed to provide notice of the conduct required.
Several organizations filed briefs as friends of the Court. The Missouri Association of Prosecuting Attorneys argues prosecutors have a First Amendment right and an ethical duty to communicate truthful facts to the public and should be permitted to continue doing so. The Missouri Press Association argues the rules of professional conduct permit statements of information contained in the public record, and speech regarding matters taking place in court impact the public’s trust in the judicial system. The Missouri Victim Assistance Network argues prosecutors have a responsibility to crime victims and should be permitted to advocate with zeal on behalf of crime victims. Synergy Services Inc. argues prosecutors should be permitted to speak the truth about child sexual abuse to encourage other victims to come forward and to deter future crimes of this nature
The national and state associations of criminal defense lawyers argue the conduct of Zahnd and his subordinates violates the rules of professional responsibility and professional standards for prosecutors and undermines confidence in the justice system; his contacts with the letter writers was to threaten or intimidate them into retracting their letters; and the content of the news release mischaracterized events, included information that was not part of Paden’s criminal case and did not constitute protected speech under the First Amendment.
The Kansas City Star reported that the court imposed a reprimand.
Platte County Prosecutor Eric Zahnd said Wednesday he may ask the U.S. Supreme Court to review his reprimand by the Missouri Supreme Court for violating certain rules of professional conduct.
Zahnd and his office were accused of intimidating and threatening supporters of a Dearborn man after he pleaded guilty in 2015 to repeatedly sexually abusing a child for at least a decade...
"This case involves important issues of an elected prosecutor’s right to speak truthfully about cases in our courts," he said. "Unfortunately, the Court’s order does not address my contention that my work to stand up for a victim was protected by the First Amendment and the rules themselves. Let me be clear: I never threatened anybody; I simply told the truth."
A major upgrade in transparency in the District of Columbia bar disciplinary system is the long-overdue online link to public charges of misconduct.
A new feature on the Disciplinary Counsel web page provides the links to six filed petitions.
These are the first posted cases - charges have been public for, oh, nearly 20 years.
And more. Also posted for the first time are filed petitions for reinstatement
Filed Petitions for Reinstatement
In re Maqsood H. Mir, Disciplinary Docket No. 2014-D380
In re Samuel N. Omwenga, Disciplinary Docket No. 2017-D283
If anyone has information that they wish to provide to Disciplinary Counsel regarding these petitioners for reinstatement, please call our office at (202) 638-1501, and request to speak with the attorney handling the case.
I have been lobbying for public access to information concerning petitions and reinstatement for as long as this soap box has been available to me. The prior leadership had no apparent interest in providing such access.
Kudos to the present leadership at the Office of Disciplinary Counsel for making these improvements. (Mike Frisch)
A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct
In January 2015 respondent, without notice or permission, entered the home of a woman who had defaulted on a mortgage held by an estate of which respondent's wife was co-executrix. Respondent took photographs to document what he considered to be the poor physical condition of the premises, and he posted the photographs on his wife's Facebook account with the comment "Mom and Alton are turning over in their graves," referring to the deceased relatives who left the estate;
On April 6, 2017, respondent publicly posted four of the photographs of the premises on his own Facebook account, as well as six photographs of the residence's interior taken prior to its sale. Along with the "before" and "after" photographs, respondent commented on contrasting the condition of the home before and after the sale, and he stated that the buyer had been in arrears in her mortgage payments. Respondent made the posting in retaliation for the woman's public accusations that respondent and his co-judge had committed judicial misconduct; and
Respondent did not remove the four "after" photographs from his Facebook account until November 13, 2017, following an inquiry by the Commission. As of February 2, 2018, respondent had not removed from his Face book account either the "before" photographs or the comments about the condition of the house or the buyer's mortgage arrearage.
Respondent is married to Joanne Fisher. In 2008, following the death of Ms. Fisher's stepfather, Alton Adams, Ms. Fisher became a co-executrix of his estate ("Estate"). The primary asset of the Estate was a house located at ("Property").
Respondent was not an executor or beneficiary of the Estate and had no legal right to act on its behalf.
In March 2012 the Estate sold the Property to S. The note and mortgage identified the Estate as the mortgagee and provided that S. was to make monthly payments to the Estate until March 16, 2015, at which time she was required to make a "balloon" payment of the outstanding balance. Under the note and mortgage, the Estate's legal remedies, upon a default by the buyer, were to commence summary eviction and/or foreclosure proceedings. The note and mortgage included no provision granting the Estate a right to enter and inspect the Property.
On January 10, 2015, S. was in arrears in her mortgage payments and was not living on the Property. After consulting the Estate's attorney but without providing notice to S. or obtaining her permission to enter, respondent entered the Property, which was in a state of disorder, and took photographs of the premises. The Estate had not commenced legal proceedings against S.
More photos were later posted on Facebook, apparently in retaliation for judicial misconduct complaints filed by S.
Compounding respondent's misconduct, he inexplicably failed to remove the offensive Facebook post promptly after the Commission questioned him about the matter, despite promising under oath to do so. Although he assured the Commission during his investigative testimony in July 2017 that he would remove the post "this afternoon," he did not remove the four photos taken during his unauthorized inspection of the property until four months later - shortly after the Commission had contacted him again to ask why the post had not been removed - and did not remove the remainder of the post until February 2018. In the meantime, his comments denigrating the property's owner remained on Facebook, and we can assume that more public members would have the opportunity to read them and comment. That was a further injustice to the owner of the property. Respondent concedes that he has "no excuse" for his lengthy delay in removing the post promptly after pledging to do so, and his failure to respond promptly to the Commission's concerns shows a lack of sensitivity to his ethical responsibilities as a judge.
In accepting the jointly recommended sanction publicly admonishing respondent for his behavior, we note that respondent has acknowledged the impropriety of his conduct and has pledged to be more circumspect in the use of social media in the future.
The agreed statement of facts is linked here. (Mike Frisch)
The Ohio Supreme Court permanently disbarred an attorney as described by Dan Trevas
The Ohio Supreme Court today permanently disbarred a Cleveland attorney for violating several professional conduct rules, including failure to file an appeal of his client’s criminal conviction that he had promised to submit.
Guy D. Rutherford had been under suspension by the Supreme Court since December 2015 and was being disciplined for past instances of accepting client payments then not following through with work on their cases. The Office of Disciplinary Counsel sought Rutherford’s permanent disbarment in September 2017, which the Court voted 6-0 in a per curiam opinion to impose. Justice Mary DeGenaro did not participate in the case.
Lawyer Suspended Multiple Times
Rutherford was suspended four times between 1998 and 2009, beginning with a two-month sanction for nonpayment of child support. He was briefly suspended both in 2005 and 2007 for failure to timely register as an Ohio attorney. In 2006, he received a six-month stayed suspension for neglecting three client matters, not depositing unearned fees into his client trust account, and not promptly delivering funds that his clients were entitled to receive. The stay was revoked because he was found in contempt of a Supreme Court order, and he remained suspended until May 2009.
In March 2016, Rutherford was suspended on an interim basis after failing to respond to a disciplinary counsel investigation regarding his alleged abandonment of several clients, failure to refund their retainers, and engaging in additional misconduct. Later that year, the Court converted the interim suspension into an indefinite suspension, which remained in effect until his disbarment today.
Investigators Receive Additional Client Complaints
As the disciplinary counsel was pursuing Rutherford on the March 2016 complaints, the office filed additional charges with the Board of Professional Conduct in November 2016 based on four separate client matters.
Three client matters involved individuals who paid Rutherford to represent them in divorces. He accepted $600 to $800 retainers from each, and did not perform any of the contracted work. He falsely told one client that he filed a divorce on her behalf when he did not, and he had little to no communication with the clients. While all requested refunds, only one was paid and it took Rutherford more than a year to return the money.
Based on his behavior, the board found Rutherford violated several rules governing the conduct of Ohio lawyers, including failing to act with reasonable diligence in representing a client, not keeping clients informed of the status of their legal matter, charging an excessive or illegal fee, failure to promptly refund any unearned fee, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Criminal Matter Not Pursued
In the fourth instance, Rutherford accepted $4,500 from Rinaldo Vega to represent his son in a criminal and immigration matter. After numerous failed attempts to contact Rutherford, Vega hired another attorney to represent his son in the immigration case. Rutherford met with the other attorney and promised to forward files in his possession. He forwarded some documents, but never provided most of the files.
Vega’s son was found guilty of several criminal offenses, which Rutherford attempted to appeal. The appeals court sent notifications to Rutherford’s address on record, but the mail was returned, and Rutherford took no further action on the case. The appeals court dismissed it for failure to prosecute. Vega filed a grievance with the disciplinary counsel and requested a refund of his $4,500.
The board found Rutherford violated several rules when representing Vega’s son, including engaging in conduct that was prejudicial to the administration of justice.
Lawyer Unresponsive to Disciplinary Inquiry
In addition to his failure to represent clients, Rutherford also did not respond to letters and emails sent to him from the disciplinary counsel at the addresses he provided to the Court’s Office of Attorney Services. The investigators learned from an office building receptionist that Rutherford had not been seen at his office in months, but that mail was being left on his desk. They left letters regarding two client matters and noticed stacks of unopened mail on the desk. After several unsuccessful attempts to reach him, the board found Rutherford violated the rules for failing to cooperate with a disciplinary investigation and not providing his current residential address and business contact information. The board recommended the Court permanently disbar him.
Court Weighs Evidence
When considering a sanction, the Court considers aggravating circumstances that would increase the punishment it imposes on a lawyer and mitigating factors, which could lead to a reduced penalty. The Court found he acted with a selfish motive, engaged in a pattern of misconduct, committed multiple offenses, took advantage of vulnerable clients, and failed to pay restitution.
The Court found no mitigating factors. It also considered the punishment it levied to other attorneys committing similar rule violations. The opinion noted that attorneys who accept retainers and fail to do any work is conduct that is “tantamount to theft of a fee from the client.”
“Given the nature of Rutherford’s misconduct, the extensive aggravating factors present — including his prior discipline for similar acts, the complete absence of mitigation factors, and the sanctions we have imposed for comparable misconduct, we agree that permanent disbarment is warranted,” the Court concluded.
A Louisiana Hearing Committee proposes a six-month suspension for an attorney's conviction
the Committee finds Respondent violated the following Rule of Professional Conduct: Rule 8.4(b), which provides that it is a violation for an attorney to commit a criminal act, especially one that reflects badly on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. The Respondent's criminal convictions for simply battery and criminal mischief involving an incident with a New Orleans cab driver wherein Respondent and the cab driver had a sexual encounter is a clear violation or [sic] Rule 8.4(b). The Respondent appealed her criminal conviction to the Louisiana Fourth Circuit Court of Appeal; however, her conviction was affirmed. See State v. Gaubert, 2015-0774 (La. App. 4 Cir. 12/9/15); 179 SoJd 986, reh'g denied (Jan. 4. 2016); writ denied, 2016-0122 (La. 1/23/17).
This disciplinary matter arises solely in regard to Respondent's criminal convictions for simple battery and criminal mischief. These convictions stem from an incident involving Respondent and a New Orleans cab driver, Hervey Farrell. On April 6, 2012, Respondent was a passenger in Mr. Farrell's taxicab. The two had a sexual encounter in the taxicab. Mr. Farrell used his cellphone to take a bawdy video of Respondent. Following the encounter, Mr. Farrell reported to police that he was sexually assaulted in his cab by Respondent. Respondent was subsequently charged in the Orleans Municipal Court with simple battery. On April 5, 2013, Mr. Farrell filed a civil lawsuit against Respondent in Orleans Parish Civil District Court, alleging that he suffered tort damages arising from the taxicab incident.
While the civil litigation and the simple battery charge were pending, Respondent went to the Third District Station of the New Orleans Police Department to report that she was a victim of the crimes of extortion and video voyeurism by the alleged perpetrator, Mr. Farrell. Respondent's report to police essentially asserted that Mr. Farrell emailed Respondent a copy of the video of the April incident, indicating that if he received $1 ,000.00, the video and charges he filed against the video would "go away."
While investigating Respondent's complaint against Mr. Farrell, the State charged Respondent, on October I, 2013, with one count of false swearing for the purposes of denying a constitutional right, a violation of La.R.S. 14:126.2. The State later amended the bill of information to charge Respondent with one count of false swearing for the purposes of violating public health or safety, a violation of La.R.S. 14:126.1.
The attorney did not respond to the bar charges.
The Times-Picayune reported on the criminal charges.
Authorities say a woman who in August accused a taxi driver of shooting lewd video footage of her in an extortion scheme made up the story, and charges against the cabbie have been dropped.
Jennifer Gaubert, 32, a New Orleans lawyer and self-proclaimed "public figure" who at one point hosted her own radio show, has been charged by the Orleans Parish district attorney's office with filing false statements concerning denial of constitutional rights, stemming from her complaint to police that she was filmed without her permission while in a cab in April 2012.
Prosecutors refused to bring charges against Metairie resident Hervey Farrell, who had been jailed on Aug. 29 on charges of voyeurism and extortion based on Gaubert's complaint to police.
"We didn't feel there was a basis for the charges," said Christopher Bowman, a spokesman for the district attorney's office.
In an August interview with NOLA.com | The Times-Picayune, Gaubert said she was intoxicated when she was in the cab. She said she had openly discussed her local notoriety with the cabdriver, which she said made her a target. A New Orleans native, Gaubert is known for her WGSO radio show "Law Out Loud", which she has since stopped hosting.
Gaubert said in the interview she had flirted with Farrell, 38, and kissed him, but told police she never gave him permission to film.She told police that Farrell shot video of underneath her skirt, exposing her underwear and genitals to the camera.
Farrell was the first person to contact authorities, filing a report in municipal court saying Gaubert battered him when she was a passenger in his cab. Nothing ever came of that charge.
After that, Gaubert went to police, saying Farrell sent a message threatening to release the video unless she gave him $1,000. Bowman wouldn't comment on Gaubert's charge, citing the pending case.
She has not been arrested. Arraignment is set for next week.
The conviction was noted by The Advocate.
In a case with more twists than a bag of pretzels, both Farrell and Gaubert took the witness stand, presenting starkly contrasting accounts of the April 6, 2012, cab ride to Lakeview from Galatoire’s restaurant on Bourbon Street, where Gaubert left soused after a three-hour lunch.
Farrell, 39, flatly denied trying to extort money from Gaubert under threat of releasing the video. That was the allegation that Gaubert originally brought to police in 2013, landing the cabbie in jail for nearly 30 hours before District Attorney Leon Cannizzaro’s office found holes in her story.
Since his call to 911 shortly after the cab ride — saying “She whipped out my penis and was trying to give me oral sex and I said no” — Farrell has maintained he was a victim of Gaubert’s drunken aggression after she’d hopped into the front seat during the ride.
He quickly filed a civil claim against Gaubert, whose radio show on WGSO, “Law Out Loud,” ended right after the cab ride.
At issue in the criminal case was whether Gaubert lied when, a year later, she went to police to report that Farrell had demanded money while sending the video to Gaubert’s lawyer by email.
No email documenting the alleged extortion attempt has turned up. On the witness stand Friday, Gaubert said the email claim was a minor miscommunication with police. She insisted, however, that the video had been sent, one way or another, to her attorney and friend, Brigid Collins, and that the message was clear: Pay or else.
She also said the sexual encounter was completely consensual. She said she had asked Farrell, who was holding his phone, if he was videoing her and he denied it.
In tearful testimony, she said she went to police to ensure that the video would be confiscated.
“That’s all I wanted — that the tape can’t be distributed. It was the fear of it being released that had the original effect on me,” Gaubert testified. She said she moved to Thibodaux and gave up her law practice, petrified.
“The release of it has been the best thing that’s happened to me,” she added. “What feared me the most is out there, and whether people don’t want to like me, they can. What can they hold over my head now?”
Cannizzaro’s office refused the extortion and voyeurism counts against Farrell, instead charging Gaubert with making a false statement.
Collins testified Friday that she never received an explicit “pay or play” threat from Farrell or his lawyer, though she said she did receive the video and a money demand as part of Farrell’s bid to settle the civil suit. The first solicitation was for $60,000, Collins said. “No one ever said to me the charges would go away if she paid money,” Collins testified. “I don’t recall the order, but a money demand was made, and the video was provided.”
Gaubert told police the extortion demand was for $1,000, according to a report.
Hunter reviewed the video in silence during the daylong trial, in which Gaubert’s attorneys claimed Farrell was the liar. They accused the cabbie, then a Yellow Cab driver, of taping the end of an amorous session to cover his tracks after an off-duty Jefferson Parish sheriff’s deputy came rapping on the window.
They pointed to various taxi regulations and criminal statutes that frown on cabbies having sex with fares, especially drunken ones.
“If you look at it as a whole, the wrong person is sitting at this table. It shouldn’t be Jennifer Gaubert; it should be him,” one of her attorneys, Cameron Mary, told the judge.
“It’s an outrageous (civil) demand to begin with — $60,000 to be kissed by an attractive woman. You couple that with an embarrassing video, you have exactly what’s been reported: an extortion,” Mary said.
Assistant District Attorneys Sarah Dawkins and Elizabeth Killian called those comments evidence that Gaubert hasn’t taken responsibility for her false report to police. Throughout the trial, they argued that details of the sexual encounter in the taxicab were irrelevant to the case.
“I observed a female in the driver’s seat on top of the driver, and in observing her actions, I could see she’s bucking her hips back and forth. Immediately I took my police ID out and said, ‘What the hell are you doing? This is a residential neighborhood,’ ” Migliore said.
“My view is that it was a consensual act between two consenting adults in public view. The driver didn’t even attempt to push her off. When I walked up, she got off on her own.”
Gaubert’s attorneys found Migliore only after she was convicted of simple battery last year in Municipal Court.
On the stand Friday, Farrell denied any recollection of seeing the off-duty deputy during the encounter.
Hunter allowed Gaubert to remain free on $25,000 bail while setting a Feb. 13 sentencing date. She faces up to six months in prison on the criminal mischief count.
Mary called it a disappointing “compromise verdict.” Whatever the extortion amount, or whether it came by email or “snail mail,” he argued, Farrell’s intent was clear.
Just how the two guilty verdicts against Gaubert might affect Farrell’s civil claims is uncertain. Blake Arcuri, a civil attorney for Farrell, said he was pleased with Hunter’s verdict.
Cannizzaro called the verdict “a good decision.”
“I think it supports what we have said the entire time: This woman did in fact go to the police station and make a false claim against someone. And as a result, this man was in fact arrested for a period of time and lost his job for a period of time,” Cannizzaro said. “We cannot encourage what Ms. Gaubert did.”
The DA acknowledged that police should have investigated Gaubert’s claims more thoroughly — demanding to see the purported email, for instance — before securing an arrest warrant for Farrell. “That would have saved a whole lot of inconvenience at the very least to the cab driver, and a whole lot of anguish and suffering,” Cannizzaro said.
Friday’s trial likely will not end the legal wrangling. Last year, Farrell filed a federal civil rights lawsuit, claiming he was the victim of false arrest, false imprisonment, malicious prosecution and kidnapping. The lawsuit names Mayor Mitch Landrieu, former NOPD Superintendent Ronal Serpas and three police officers as defendants, along with Gaubert.