Friday, May 27, 2016
The Alaska Supreme Court has disbarred an attorney for giving false testimony in civil and bar discipline proceedings.
Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation over the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others. During that litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order was issued in December 2007. This order prohibited in-person or telephone contact between Ivy and Kyzer without an attorney present and prohibited each party from coming within 500 feet of the other’s residence. Ivy subsequently testified that Kyzer made improper contact with her on three occasions after this order issued. In response Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy fabricated these incidents, in violation of the Alaska Rules of Professional Conduct.
Two of the alleged incidents bear on the sanctions inquiry. First, on January 7, 2008, Ivy provided a 30-minute statement to a police officer, claiming that Kyzer had stalked her at a women’s clothing store about ten days earlier. Based on Ivy’s statement and because Ivy claimed to be in hiding and did not want to come to the courthouse, the officer offered to request a telephonic hearing for a domestic violence restraining order. The day Ivy made the police report was the same day she was scheduled to give a deposition in the litigation with Kyzer. A few days before, on January 3, the superior court had denied Ivy’s motion to stay the deposition, and on January 4 we denied Ivy’s emergency motion to stay the superior court order denying her request. Ivy did not appear at the January 7 deposition despite having been ordered to do so. In response to a follow-up order to appear for the deposition, Ivy’s attorney reported the alleged stalking incident to the superior court. Ivy ultimately was deposed on March 13. At that deposition, Ivy testified about the alleged stalking incident. She described in great detail her movements among the various racks of clothing and the dressing rooms, Kyzer’s allegedly menacing use of his vehicle, and her response. The second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a courtroom and that his actions constituted criminal sexual assault. To support this claim, Ivy filed a Notice of Sexual Assault with the court accompanied by an affidavit describing the alleged incident.
In December 2010 Kyzer filed an ethics grievance with the Alaska Bar Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by falsely testifying that Kyzer stalked her and assaulted her in the courtroom. After an investigation by a special bar counsel and a hearing, the Area Hearing Committee found that Ivy knowingly provided false testimony at the deposition, in her affidavit, and during the disciplinary proceedings.
The court found that the misconduct warranted disbarment
Ivy’s misconduct exceeds the typical case: She lied in a complex lawsuit involving multiple parties, she falsely reported that her brother had committed criminal acts against her, and she lied in these proceedings to evade discipline for that misconduct. Thus though repetition exists between the aggravating factors and the elements of the presumptive sanction (e.g., Ivy’s selfish motive) and between the aggravating factors and the elements of the underlying ethical violations (e.g., Ivy’s dishonest conduct), we give some weight to these aggravating factors at the balancing stage. But in doing so we account for the double-counting risk, which arises from the similarity of the factual circumstances, by appropriately weighing the factors. Acknowledging the risk of double counting, we conclude that the five aggravating factors — Ivy’s pattern of misconduct, its illegal nature, her dishonest motive, deceptive practices during the disciplinary process, and refusal to acknowledge the wrongfulness of her actions — outweigh the single mitigating factor, Ivy’s lack of disciplinary record. Therefore we do not reduce the presumptive sanction of disbarment
Chief Justice Fabe would hold that disbarment is too severe
I respectfully disagree with the court’s decision to disbar Deborah Ivy. I agree that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) by lying about the stalking incident in the parking lot and the alleged sexual assault by her brother in the courtroom. And she violated Alaska Bar Rule 15 by continuing to maintain her fabricated version of these events before the Board. But it is my view that disbarment of Ivy for being untruthful in the course of her own highly emotional personal family litigation is unnecessarily severe...the court has ignored the significant mitigating factor of Ivy’s personal and emotional problems, resulting from years of a contentious personal relationship with her brother. And Ivy’s falsehoods did not arise in the context of her representation of a client. Finally, there is no example in all of our prior disciplinary decisions that would support disbarment in Ivy’s case. Though Ivy’s conduct is unworthy of our profession and merits the severe sanction of a five-year suspension, it does not warrant disbarment
She would instead impose a five-year suspension
While I agree that attorneys can be subject to disbarment for violations committed outside of a representative capacity, we have approved such a severe sanction in only one case, where an attorney was convicted as an accessory after the fact to a first-degree murder.
Thursday, May 26, 2016
"With some dismay." the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police ("FOP") against the District that had been dismissed as fulfilled by the trial judge.
On September 24, 2010, FOP submitted a FOIA request to both the Metropolitan Police Department ("MPD") and the Office of the Chief Technology Officer ("OCTO"). FOP requested three categories of documents in the possession, custody and/or control‖ of either entity: (1) all email sent to or from Mark Tuohey, including, but not limited to, all email sent to or from his email addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and one email address at the Washington D.C. Police Foundation; (2) all email sent to or from Eric Holder, including, but not limited to, all email sent to or from his email address at the law firm Covington & Burling LLP; (3) all email referencing or mentioning the Washington D.C. Police Foundation. FOP stated that it sought documents from these categories generated over a four-year period, from November 1, 2006 to present.
And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.
While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).
The court rejected the District's interpretation of its FOIA obligations
we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was "void for volume." Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.
And held insufficient the effort to comply
Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case... Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.
Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)
Wednesday, May 25, 2016
The South Carolina Supreme Court overruled prior precedent and reinstated a legal malpractice claim that the lower court dismissed on statute of limitations grounds.
the client was an auto dealership sued by an unhappy customer who was awarded judgment.
[Client] Stokes-Craven filed a legal malpractice action against Respondents, alleging negligence and breach of fiduciary duty in trial counsel's representation of Stokes-Craven both prior to and during the trial. Specifically, Stokes-Craven alleged that trial counsel failed to: adequately investigate the facts of the case; prepare or serve written discovery; depose witnesses; obtain copies of the plaintiff's experts' curricula vitae; prepare a pretrial brief, trial exhibits, voir dire, and requests to charge; preserve certain evidentiary issues for appellate review; notify Stokes-Craven's insurance carrier about the claims; and settle the case prior to the jury verdict. Based on these purported errors, Stokes-Craven claimed the jury returned the adverse verdict. Respondents generally denied the allegations and asserted several defenses, including that Stokes-Craven's claims were barred by the expiration of the three-year statute of limitations.
The court acknowledged that its minority position articulated in the Epstein case was problematic
The facts of the instant case present us with an appropriate opportunity to address the criticism and conflict that has arisen out of our decision in Epstein. As legislatively mandated, we begin our analysis with the well-established discovery rule. Pursuant to this rule, all legal malpractice actions must be commenced within three years after the claimant knew or by the exercise of reasonable diligence should have known that he or she had a cause of action...
As evidenced by this case, the key question is when the claimant's cause of action accrues to trigger the running of the three-year statute of limitations. The answer to this question is complicated by the seemingly endless factual scenarios surrounding the underlying claim of a legal malpractice cause of action. For example, legal malpractice claims may stem from matters involving litigation or negotiated settlements while others may arise out of matters involving the probate of a will or a divorce. Further complicating the determination of when a cause of action accrues is if the claimant pursues an appeal of an unfavorable ruling, such as in the instant case.
Our decision regarding the accrual date must also take into consideration the preservation of the attorney-client relationship as well as the public policy that is fundamental to the efficient management of our judicial system. Clearly, if a client files a legal malpractice cause of action while the client is still represented by counsel during an appeal, the attorney-client relationship is compromised and there are simultaneous lawsuits advocating conflicting positions.
Here, the statute of limitations did not commence until the case was lost on appeal. Thus, the malpractice claim was timely. (Mike Frisch)
A two-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct in an immigration matter.
In mitigation, the respondent testified at the disciplinary hearing that her use of fees she received on the Guadeloupe matters for another client was an inadvertent mistake, that she intended to make restitution once she is gainfully employed, and that she was in "crisis mode" due to her suspension from the practice of law and foreclosure on her home. The Special Referee noted in his report that the respondent showed genuine remorse and was experiencing great difficulties. The respondent is currently suspended based on findings, inter alia, that she engaged in a pattern and practice of failing to safeguard funds, and converting funds, violated a court order, and committed other escrow improprieties. The three-year suspension, which commenced on December 26, 2013, has not expired. In addition, the respondent was previously issued a Letter of Admonition in 1997, and a Letter of Caution in 1994. We find the respondent's disciplinary history to be an aggravating factor.
Records of the New York State Office of Court Administration show that the respondent is delinquent in the payment of her registration fees for the 2015-2016 biennial period, in addition to the 2011-2012 and 2013-2014 biennial periods.
Notwithstanding the mitigating factors present in this case, we find that a suspension from the practice of law for two years is warranted, in addition to the three-year suspension previously imposed by opinion and order of this Court dated December 26, 2013.
The web page of the Idaho State Bar reports on a recent sanction
On May 20, 2016, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney Lisa D. Shultz from the practice of law for a period of six (6) months, with all six (6) months withheld, and placing her on a disciplinary probation.
The Idaho Supreme Court found that Ms. Shultz violated Idaho Rule of Professional Conduct 8.4(b) [Commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.
On October 17, 2014, Ms. Shultz was charged in Ada County with one misdemeanor count of using a telephone to disturb the peace, relating to her contact with a former legal intern. On March 16, 2015, Ms. Shultz pleaded guilty to an amended charge of disturbing the peace. The Court imposed a five-day jail sentence, entered a Withheld Judgment, and ordered Ms. Shultz to complete a two-year unsupervised probation with conditions requiring her to follow any Idaho State Bar recommendations. Also on March 16, 2015, Ms. Shultz entered guilty pleas in two unrelated cases to misdemeanor charges of possession of marijuana and possession of drug paraphernalia. In those cases, the Court entered a Withheld Judgment and ordered Ms. Shultz to complete a one-month unsupervised probation. The possession and paraphernalia charges were dismissed on April 30, 2015.
The Disciplinary Order provides that Ms. Shultz’s six-month suspension is withheld subject to the terms and conditions of her disciplinary probation, which runs through March 15, 2017. The terms and conditions of probation include: avoidance of any alcohol or drug-related traffic violations; a program of random urinalysis, with provision that if Ms. Shultz tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed and served; and if Ms. Shultz admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during her probationary period, regardless whether that admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.
The withheld suspension does not limit Ms. Shultz’s eligibility to practice law.
An unhappy client may not sue a dentist who told her that a tooth was deceased and the she needed a root canal, according to a decision of the Montana Supreme Court.
On August 28, 2002, a piece of Davenport’s tooth broke and the filling inside dislodged. The following day she sought treatment from Davidson, a dentist. Davidson advised Davenport he believed her tooth was dead and he recommended a root canal to restore the tooth. Davenport firmly did not believe her tooth was dead and requested Davidson restore the filling without a root canal, to which he declined. After further damage to her tooth occurred, Davenport ultimately sought care from another dentist who confirmed Davenport’s belief that her tooth was salvageable without a root canal. On August 24, 2005, Davenport filed a complaint against Davidson with the Montana Medical Legal Panel. After the Panel rendered its decision, she filed a complaint against Davidson in District Court alleging three separate counts: deceit; malice; and fraud.
Davidson represented a diagnosis and a necessary course of action to cure an undisputed problem with Davenport’s tooth. However, Davenport unequivocally asserts she did not believe Davidson’s representations were true. Furthermore, even if Davenport’s allegations are assumed to be true and Davidson fraudulently and deceitfully represented that Davenport’s tooth was dead and the only remedy was a root canal, Davenport did not choose to undergo the recommended procedure, nor did she even see Davidson again. For reasons unknown, Davenport chose to take no course of action until further damage to the tooth occurred. Simply put, she chose a path exactly opposite from Davidson’s representations, as was her right, but it cannot be construed as detrimental reliance
And malice cannot stand alone
the District Court properly concluded malice is not a standalone tort claim under Montana law, and rather is an element of a claim for punitive damages that is contingent upon the success of an underlying claim. Sections 27-1-220, -221, MCA. Therefore, because no underlying claim remains to support a parasitic claim of malice, its dismissal by summary judgment is also proper.
It is phrases like "parasitic claim" and "attractive nuisance" that give life to the law. (Mike Frisch)
An Illinois Hearing Board recommends disbarment of an attorney who defaulted on these charges
Respondent's misconduct was particularly egregious. That misconduct included, but was not limited to, misappropriating a total of over $800,000 in three separate matters, involving elderly persons, one of whom had dementia. In each of those matters, Respondent took funds repeatedly and over time. In addition, as Count IV reflects, Respondent took funds without authority from four other persons. Thus, an extensive pattern of misconduct was present.
The nature and extent of Respondent's misconduct alone would warrant disbarment. The aggravating factors present provide additional support for this recommendation. The mitigating factors do not warrant a lesser sanction in this case.
The mitigation involved a lack of prior discipline and partial restitution. (Mike Frisch)
The ABA Journal has the story of an opinion of the United States Court of Appeals for the Seventh Circuit holding that a sanctioned attorney may appeal a finding of misconduct even if the fine has been paid.
The attorney lost on the merits.
The case involves an assistant state's attorney in Illinois who asserted that no requested documents existed in civil litigation. Problem was that there were plenty such documents.
because a finding of attorney misconduct in a sanctions order can seriously impair an attorney’s professional standing, reputation, and earning possibilities, such an order can’t be brushed off as easily as a gnat. It is not just a slap on the wrist, or an angry remark by a judge in the course of a trial or other hearing. It is a judicial order, in this case issued by a respected and experienced federal judge (really two respected and experienced federal judges, as the money sanction imposed by Judge Bucklo, together with her critical comments supportive of Judge Grady’s, amplified the gravity of Judge Grady’s order)...
It’s true that although Judge Grady expressed strong criticism of lawyer McClellan, the only sanctions order that he had decided to issue (though it was not quantified until the order issued by his successor, Judge Bucklo) was an order to pay, which when he issued it would have been expected to impose at least part of the expense on McClellan. We can imagine an argument that as in Bolte all we have here is a critical comment by the judge, and that a mere comment can’t be the subject of an appeal. It would indeed be odd to think that any time a judge criticized a lawyer, whether in open court or in a written order, the lawyer could treat the criticism as an appealable ruling. But there is a difference between a critical comment unjoined to a sanctions order and a critical comment that appears in and offers justification for a formal such order. The accusation of misconduct by McClellan is not an add-on to the order issued by Judge Grady but the justification for it. One of the sanctions that this court occasionally imposes, usually after a rule to show cause has been issued, is a formal censure or reprimand of a lawyer. Such a sanction, if imposed on an Illinois lawyer, must be reported to the Attorney Registration and Disciplinary Commission (or its equivalent in other states), and can result in the suspension of the lawyer’s law license, or worse...
The significance of the order, as far as McClellan is concerned, is not the price tag but the sharp criticisms of her in the order, and those criticisms were apt and accurate. The plaintiffs had been strung along by McClellan and others at the State’s Attorney’s Office for more than a year, having been incorrectly informed that the Office had not retained the plaintiffs’ criminal case files. McClellan had repeatedly denied that the files existed, without knowing whether they did or did not exist and without conducting a reasonable inquiry into the matter. She had even threatened the plaintiffs’ counsel that she would seek sanctions against him if he continued to request the documents in the face of her denial of their existence. She also tried to prevent him from searching for the files himself. And when the files were finally located she delayed turning them over by advancing a meritless claim of privilege. It took multiple court orders and more than a year of effort for the plaintiffs to obtain all the docu-ments to which they were entitled. The district court did not abuse its discretion in sanctioning her.
A judge seeking reelection may comment on a criminal case involving misconduct by a former court employee, according to a recent opinion of the Florida Judicial Ethics Advisory Committee.
May an incumbent judicial candidate publicly comment about the events surrounding the termination of a court employee, including the employee’s arrest and conviction?
The inquiring judge is involved in a contested campaign for reelection. Some time ago, a court employee who worked in the same courthouse as the inquiring judge was terminated, and later arrested and convicted. After the employee’s termination, the employee made certain allegations about the inquiring judge. At sentencing, the employee made remarks apologizing to the inquiring judge. The employee was sentenced to a period of incarceration and probation. The employee is currently on probation.
The inquiring judge advises that there have been media accounts during the current campaign about the employee’s previous allegations about the inquiring judge. The inquiring judge would like to publicly comment on the former employee’s allegations, and on the former employee’s comments at sentencing, but is concerned whether doing so would contravene the proscription of Florida Code of Judicial Conduct, Canon 3B(9), which states:
A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearingâ€¦ This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.
Because the former employee remains on probation, it is theoretically possible that the employee may be involved in future court proceedings. However, no such proceeding is pending or impending. More to the point, the inquiring judge was not the presiding judge in the employee’s criminal case. Cf. Fla. JEAC Ops. 98-28 (inquiring judge who presided over case that is currently on appeal cannot appear in documentary concerning the case); 11-16 (inquiring judge may not speak to conference of judges and others interested in the administration of justice concerning a trial presided over by the judge and which is being appealed). The inquiring judge would have even less connection to any future court proceedings stemming from the employee’s probationary status.
Consequently, the Committee is of the opinion that the inquiring judge can comment on the allegations made by the employee about the judge, including discussing comments by the employee at sentencing, so long as the inquiring judge’s comments are truthful and do not otherwise violate the Canons. See Republican Party of Minn. v. White, 122 S. Ct. 2528 (2002) (stating that speech about the qualifications of candidates for public office, including judges, is at the core of our First Amendment freedoms).
The Oklahoma Supreme Court has imposed reciprocal disbarment based on a Texas sanction imposed for criminal tax violations that did not lead to conviction.
The procedural posture in Texas
In late 2014, the Texas Bar began disciplinary discussions with O'Laughlin. From the record, notice of the third complaint was received by O'Laughlin after disciplinary discussions had begun. On March 23, 2015, O'Laughlin signed the Motion to Resign, requesting that the Supreme Court of Texas accept his resignation from the practice of law: "Applicant is voluntarily resigning and withdrawing from the practice of law and does so in lieu of discipline."
His response when Oklahoma commenced reciprocal discipline proceedings
O'Laughlin chooses not to acknowledge any misconduct, and he shows no remorse for the wrongs done to his clients. Instead, O'Laughlin argues that his misconduct did not involve the practice of law; and therefore, this Court cannot impose discipline.
The court had a different view
O'Laughlin's arguments about the Texas Bar and Supreme Court of Texas during his disciplinary proceeding are concerning. O'Laughlin claims that the Texas disciplinary proceeding is still ongoing. He supports his assertion by citing the Withdrawal of Motion filed on May 22, 2015. That date is almost one month after the Supreme Court of Texas entered a final order accepting O'Laughlin's resignation in lieu of discipline, April 28, 2015. According to Texas rules, an attorney has ten days to withdraw a motion for resignation in lieu of discipline after the attorney has been served the Texas Bar's response. TRDP 10.02, Texas Govt. Code T.2, subt. G, app. A-1. The Texas Bar filed its response on March 31st, and O'Laughlin was served on the same date. Almost two months later, O'Laughlin took action, well past the allotted time to withdraw his motion. According to TRDP Rule 10.02, "[i]f a motion to withdraw is not timely filed, the detailed statement of Professional Misconduct shall be deemed to have been conclusively established for all purposes." Id. O'Laughlin failed to withdraw his resignation within the ten allotted days, and he fails to explain or provide any relevant rule that allows him to circumvent TRDP Rule 10.02. We find no merit in O'Laughlin's continuing objection via his Withdrawal of Motion due to TRDP Rule 10.02 and the Supreme Court of Texas taking no action on the Withdrawal of Motion for over a year and a half and counting. O'Laughlin acknowledged the Texas rules he resigned under when he submitted his request to resign. We hold him accountable for his knowledge of those rules and his neglect.
Even if O'Laughlin's attempt to withdraw his request to resign from the Texas Bar were a valid procedural vehicle, O'Laughlin did not provide any evidence that he actually filed it with the Supreme Court of Texas. A file-stamped Withdrawal of Motion is absent from the record. When directed by this Court to submit a file-stamped copy of the Withdrawal of Motion or explain his failure to do so, O'Laughlin failed to provide any evidence or argument.
We view these actions by O'Laughlin as a method to flaunt the legal system and avoid discipline. In his January 25th response, O'Laughlin claims that the Texas Bar's attorney never represented to him that there were findings that would be conclusively established when he resigned in lieu of discipline. Texas' disciplinary rules contradict his claim. He argues now that this proceeding was obtained by fraud. Again, we find no merit to O'Laughlin's argument. For purposes of Rule 7.7 of the RGDP, O'Laughlin's resignation in lieu of discipline is valid, and the Supreme Court of Texas' order accepting his resignation is final.
O'Laughlin does not challenge the evidence or underlying facts in this Court, despite being allowed an opportunity to explain the circumstances or present mitigating evidence. If true as O'Laughlin admitted, the facts of the three grievances filed by O'Laughlin's clients alone are sufficient to warrant discipline. Having failed to challenge the factual allegations, this Court upholds the conclusive establishment of the misconduct underlying O'Laughlin's resignation in lieu of discipline in Texas. Discipline in Oklahoma is warranted.
In an unrelated action, the court denied a first attempt at reinstatement of an attorney had had resigned pending discipline in 2000. (Mike Frisch)
An attorney with a record of prior discipline was suspended for 60 days by the Wisconsin Supreme Court for mishandling a tax matter.
Attorney Moldenhauer has a disciplinary history. In 1996, Attorney Moldenhauer consented to a private reprimand for misconduct consisting of failing to act with reasonable diligence, failing to communicate properly with a client, and failing to render a full accounting of estate funds in respose to a client's request. Private Reprimand 96-28. In 2006, Attorney Moldenhauer was publicly reprimanded for misconduct in two matters. In the first matter, he failed to act with reasonable diligence, failed to return a client's file, and failed to cooperate with the OLR's investigation. In the second matter, he failed to provide his client with an itemized billing statement, failed to refund the unearned portion of his advanced fee, and failed to cooperate in the OLR's investigation...In 2008, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client, failing to act with reasonable diligence, and failing to obey a court order. Public Reprimand of James G. Moldenhauer, 2008-01. In 2012, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client and failing to act with reasonable diligence.
His lapses led to this
In August 2012, the C.s. filed a malpractice and breach of contract action against Attorney Moldenhauer for his mishandling of their tax matters. The case eventually settled for $50,000.
The attorney stipulated to the misconduct and sanction. (Mike Frisch)
Tuesday, May 24, 2016
A village court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct for misconduct in office that permitted the prosecutor in traffic cases to negotiate pleas and impose sentences.
Only judges have authority and responsibility to accept or reject a negotiated plea; and dismissing and reducing charges, convicting defendants and imposing sentences are quintessential judicial functions requiring the exercise of judicial discretion. Placing such responsibilities in the hands of the prosecutor, who is not a neutral arbiter but an advocate, is especially problematic. Though respondent testified that she occasionally spoke to the Deputy Town Attorney about the "parameters" for such negotiated dispositions, a discussion of parameters is no substitute for reviewing dispositions in individual cases. Nor is it any excuse that, as respondent testified, Mr. Tudisco was an officer of the court whom she trusted to act appropriately. By abandoning her responsibility to review dispositions negotiated by the Deputy Town Attorney, respondent delegated these important judicial functions to the prosecutor and to court clerks, who accepted and processed the negotiated pleas. Such conduct was inconsistent with her obligation "to perform the duties of judicial office impartially and diligently" and "be faithful to the law," and to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"
Nor was it a defense that the improper practice predated the justice's service on the bench or that she consulted with her co-justice.
After these practices had continued for a year in respondent's court, the Commission requested court files and calendars from several nights on which negotiated pleas had been processed. Before the files were copied and sent to the Commission, respondent placed her initials on each of 189 files, next to the Deputy Town Attorney's notation of the plea agreement, which conveyed the appearance that she had contemporaneously reviewed and approved the dispositions...
It is wrong for a judge to alter records in any way, for any purpose, after the Commission has requested them, and particularly improper to do so if the alterations might be misleading. Only after the Commission had interviewed various witnesses did the Commission learn that respondent had initialed the files only after the Commission had requested them. Had it been proved that respondent intended to mislead the Commission by conveying the false impression that she had contemporaneously reviewed the dispositions, there is little doubt that the sanction of removal would be appropriate.
Mr. Emery dissented
The majority determines to admonish respondent based on an incomplete record that makes it impossible for me to determine with any degree of confidence whether that sanction is appropriate. Regrettably, the record is incomplete because we have not followed through with our commitment to have the record appropriately developed. When we rejected an earlier Agreed Statement and sent the matter to a referee, we directed that an adversarial proceeding take place to fully develop the factual record. Instead, the staff stipulated to facts central to the case that were very much in dispute and did not seek to develop the record as we directed. The majority's response now is to abandon the effort rather than require a full exploration of the evidence which, in my view, would be dispositive of the fundamental open question in this case.
There is no dispute that in placing her initials on 189 court files, next to the Deputy Town Attorney's notations of plea agreements and recommended dismissals, respondent conveyed the appearance that she had previously reviewed and approved the dispositions when, in fact, she had not - the very conduct the Commission was investigating. The key issue is why she initialed these documents in the misleading way she did: did she initial the files in order to mislead the Commission - engaging in a cover-up as the Formal Written Complaint alleges - or did she merely initial them without any intent to mislead the Commission in order to identify the files as her cases? Rather than probing this central issue and developing the record more fully, as we directed in rejecting the previously proffered Agreed Statement, we are now presented with stipulated facts stating, inter alia, that it is "not in dispute" that the judge did not intend to mislead the Commission (Ref Ex 1, pp 1, 8, 11 ). But the evidence, on its face, conveys a plainly contrary appearance. And plainly, this was the central factual dispute in the case.
The Illinois Administrator has filed a complaint alleging misconduct in several patent and trademark matters.
Between 2005 and 2014, in connection with at least 31 ASICO patent and trademark applications, Respondent did not respond to Office Actions issued by the USPTO within the time specified, resulting in his subsequent receipt of Notices of Abandonment from the USPTO. Each Notice of Abandonment stated that the patent or trademark application referred to had been abandoned as a result of Respondent's failure file on behalf of the applicant a proper response within the time specified by the Office Action that had been mailed to and received by Respondent.
He also is alleged to have failed to communicate and made misrepresentations regarding the status of patent matters. (Mike Frisch)
The District of Columbia Court of Appeals has ordered the interim suspension of an attorney while it considers reciprocal discipline for sanctions imposed in California.
The August 2015 California Bar Journal reported
SIERRA DAVID STERKIN [#234356], 37, of Placerville, was suspended from the practice of law for six months with credit given for a period of interim suspension. He was also placed on three years’ probation and faces a two-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect Feb. 28, 2015.
Sterkin’s suspension follows his successful completion of the Alternative Discipline Program. Sterkin pleaded no contest to obstructing a peace officer in performance of their duties, a felony, and criminal threats, a misdemeanor, in two separate incidents that occurred when he had not been taking his medication.
In the first incident, on Oct. 16, 2011, a police officer saw Sterkin yelling obscenities at people and shattering wine bottles in the middle of the street. Sterkin asked to be transported for mental health treatment, but struck an officer and resisted being placed in handcuffs. Later, Sterkin threatened a neighbor, stating: “I am going to slit your throat with a buck knife and watch your guts fall on the floor.” The neighbor had not had any prior contact with Sterkin and did not provoke the threat.
In mitigation, Sterkin cooperated with the State Bar and his successful completion of the Alternative Discipline Program, and the Lawyer Assistance Program indicates he no longer suffers from the mental health issue that led to his misconduct.
An Arkansas attorney has been reprimanded and fined for misconduct committed as an elected city attorney.
The conduct of Benjamin Lipscomb violated Rule 1.7(a) in that as elected and longtime Rogers City Attorney, the City was Lipscomb’s sole client. In November 2014, Lipscomb caused the City of Rogers to be sued in federal court, with him as the sole plaintiff, claiming an illegal or unlawful action by the City had harmed his status as a city official, thus placing his personal interest in direct conflict with the interest of his only client. Lipscomb continued to act as the legal representative of the City until he resigned on January 30, 2015. A concurrent conflict of interest existed between Lipscomb and his only client, the City of Rogers, as his representation of the City was materially limited by the personal interest of Lipscomb that was directly contrary to the interest of the City as set out in his litigation. The City of Rogers never consented to this conflict.
He violated other ethics rules including Rule 1.8(b) by using confidential information and
The conduct of Benjamin Lipscomb violated Rule 8.4(a) in that as the plaintiff in litigation against his employer, City of Rogers, in federal court Case No. 14-cv-5338, after it was filed on November 5, 2014, Lipscomb violated the rules of professional conduct related to conflicts of interest by using or acting through a Rogers city employee, Jan Brown, who worked under his direct supervision, to prepare pleadings in his case against the City of Rogers as well as other documents for Lipscomb’s personal business matters...
The conduct of Benjamin Lipscomb violated Rule 8.4(c) in that in November-December 2014, while a plaintiff in Case No. 14-cv-5338 against the City of Rogers, his sole client as Rogers City Attorney, Lipscomb improperly and possibly illegally used a city employee under his supervision, city property, city time and city resources for his personal legal and non-city employment matters. He directed the city employee, Jan Brown, to prepare an amended complaint for use in his federal lawsuit against the city and to prepare FOIA requests against the city for the benefit of him and his family member, conduct by Lipscomb involving dishonesty, fraud, deceit or misrepresentation to the City of Rogers. After moving his residence outside the Rogers city limits in May 2011, and thereby becoming ineligible to hold the elected office of Rogers City Attorney, Lipscomb continued in said office, drawing his full salary and benefits, until January 30, 2015, accepting approximately $500,000 of city funds to which he was not entitled, conduct by Lipscomb involving dishonesty, fraud, deceit or misrepresentation. Arkansas Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Monday, May 23, 2016
A non-attorney spouse may not represent her husband in proceedings involving his capacity as an attorney, according to a recent decision of the Law Society for Upper Canada Tribunal Hearing Division.
This is a capacity application under s. 38 (1) of the Law Society Act, RSO 1990, c. L.8 (“Act”). The Law Society alleges that the Lawyer, Byron May, is not capable of meeting his obligations as a lawyer because of physical or mental illness. It has brought a motion under s. 39(1) of the Act asking that the Tribunal order that the Lawyer be examined by a psychiatrist of the Law Society’s choosing.
The Lawyer’s wife, Catherine May, who is not a lawyer or paralegal, asks to be his representative in this proceeding. She, and not her husband attended the hearing at the time scheduled. We must decide whether she will be allowed to be his representative.
The Law Society says that we should not allow her to be his representative because she has a conflict of interest. There are currently criminal charges against her in which she is accused of attempted murder of her adopted baby daughter. Ms. May is confident the charges will be dismissed for delay under s. 11(b) of the Canadian Charter of Rights and Freedoms, but as of now the case is still ongoing.
It appears that originally the Lawyer told the police he saw Ms. May trying to drown the baby. There is now a written confession that appears to be signed by the Lawyer and was sent to both the Law Society and the Crown. The confession says that his statement about the drowning was a lie. It says that he and his daughter tried to kill Ms. May and the baby by drugging them with ketamine. In his letter to the Law Society, he asks that the Law Society revoke his licence to practise law. Ms. May acknowledges she was involved in drafting this document although she says it reflects the Lawyer’s statements and wishes.
Ms. May says that she is the only person able to speak for her husband, who is currently very ill from several diseases and cannot speak clearly or leave the house. She says that she understands what he wants. He has repented, she emphasizes, and he has confessed to his crimes. She states that he wants his case to be a lesson to future generations of lawyers. She says that she loves her husband unconditionally, despite his participation in these crimes. She argues that it would be a perversion of justice to remove her as his representative.
There is a conflict of interest
Here, there are many ways in which Ms. May’s interests conflict with those of her husband in this proceeding. We refer to three that in our view are particularly significant.
First, the question of who, if anyone, was attempting to kill the baby is a significant issue in the criminal case against Ms. May. If the Lawyer was telling the truth in his confession, rather than when he went to the police, Ms. May is more likely to be acquitted. Ms. May’s interest in obtaining an acquittal by having the confession believed may well create a pressure to act in her own interests rather than his best interests in this proceeding about his capacity. The believability of his confession may be connected to his capacity, now and at the time it was made.
Second, the signed confession, the Lawyer’s understanding of what he signed and Ms. May’s role in its preparation and signature will likely be an important piece of evidence in the criminal case and perhaps in this case. Ms. May’s interest in justifying her own conduct in connection with that confession runs the substantial risk of impairing her ability to act only in the Lawyer’s interest.
Third, Ms. May wrote to the Law Society on February 10, 2015 (three days before the confession was sent), making accusations against the Lawyer and asking that his licence be revoked. She noted that she was “devastated by his action towards his own baby and lawful wedded wife.” There is a substantial risk that in representing him before the Tribunal, her own feelings about the events surrounding her and the child may colour the submissions she makes and make it difficult to act solely in his best interests.
In these circumstances, Ms. May has a significant conflict of interest that would imperil the proper administration of justice and the Law Society’s system of professional regulation. This is the case even if Mr. May has consented, which itself is in question given the real concerns about his capacity on the evidence before us. She cannot be permitted to appear as Mr. May’s representative.
We recognize that given the evidence before us, which includes indications that Ms. May is controlling Mr. May’s access to others, the Lawyer may be unrepresented in this process. We are conscious of our duty to carefully scrutinize the evidence and submissions to ensure that they meet the relevant legal tests.
The hearing is scheduled to resume on May 25. (Mike Frisch)
An attorney who violated conditions of diversion imposed in light of trust accounting lapses has been indefinitely suspended by the Maryland Court of Appeals.
This attorney discipline action involves a lawyer who, while representing her clients in separate legal matters, failed to comply with remedial conditions as required under consecutive Conditional Diversion Agreements (“CDA”) for prior misconduct concerning her trust account; failed to secure safeguards during an illness to ensure a timely appeal for her client or otherwise protect her client’s interests in conformance with the Rules of Professional Conduct; and mismanaged her attorney trust account by repeatedly accumulating negative balances, depositing unearned fees, and maintaining improper record-keeping practices.
Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming (“Mr. Fleming”) in a divorce and custody matter (“Fleming matter”) and Karma Sewell-Carpenter (“Ms. Sewell-Carpenter”), in a landlord-tenant dispute (“Sewell matter”). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account. Respondent’s CDA was later amended (“Amended CDA”), then subsequently revoked in April 2014 due to Respondent’s non-compliance with the terms of the CDA. (collectively, “CDA matter”).
Conditional diversion in attorney disciplinary matters is distinguishable from the imposition of a sanction. See Attorney Grievance Comm’n v. Cappell, 389 Md. 402, 419- 20, 886 A.2d 112, 122 (2005). Maryland Rule 16-712(b)(3) grants Bar Counsel the authority to “enter into and implement Conditional Diversion Agreements” with attorneys in order to remedy misconduct. An attorney may be eligible for conditional diversion when his or her professional misconduct was not the result of the following: any willful or dishonest conduct, the cause or basis of the misconduct can be resolved through remediation or alternative programs or mechanisms, and the disposition is in the best interest of the public and the attorney’s clients both present and prospective. See id. at 421, 886 A.2d at 123.
The court found documentation of health issues inadequate
A CDA generally serves as a remedial tool to assist attorneys’ compliance with the Maryland Rules and Rules of Professional Conduct. Thus, we share in Bar Counsel’s concern that Respondent’s failure to adhere to the terms under the CDA and Amended CDA, while continuing to engage in conduct which precipitated her CDA, demonstrates a lack of appreciation of the problem.
While we accept the mitigating factor of Respondent’s illness during the relevant period, it does not excuse her admitted ignorance of trust account rules; her failure to remediate her misconduct or adhere to the protocols under consecutive CDAs; her lack of cooperation with Ms. Deady and Bar Counsel while under investigation; or her failure to implement safeguards during an illness or otherwise protect her clients’ interests in conformance with the foregoing Rules. Although, during oral argument, Respondent admitted to experiencing difficulties as her mother’s caretaker until her death, which may have also impacted her practice, we could not ascertain whether this was shared with Bar Counsel or the hearing judge. Accordingly, we order Respondent indefinitely suspended with the right to apply for readmission after six months.
The Disciplinary Review Board report tells the story
respondents attempt to minimize what is a blatant disregard of their responsibility to cooperate with disciplinary authorities. OAE auditors scheduled three separate audits. Respondents were unprepared with any records for the first audit and failed to appear for the other two audits. They submitted two significantly deficient document productions to the OAE, failed to answer myriad telephone calls and letters from the OAE and its auditors, and ignored two separate demands, sent December 24, 2012 and again on October 24, 2014, that they complete and return a Certification of Accounting Services.
Notwithstanding respondents’ claim that they "immediately" hired an accountant, Sal first indicated, in a December 3, 2014 letter to the OAE, that an accountant had been hired. A year has passed since the December 3, 2014 letter to the OAE, and two-anda-half years have passed since the records were allegedly stolen, and yet, the documents still are not available for inspection.
Sal, and his son, Jonathan, operate The Sal Greenman, P.C. law firm. In an August 23, 2012 letter, the OAE notified the firm that it had been selected for a random compliance audit, scheduled to occur on September 10, 2012. Sal requested that the OAE reschedule the audit because he had not received the audit notification letter. On September 4, 2012, the OAE sent a letter granting the request and rescheduling the audit for October 22, 2012.
On October 22, 2012, Senior Random Compliance Auditor Mimi Lakind and (now former) OAE Auditor Christopher Spedding appeared for the audit. Sal claimed that, due to a sudden illness of Jonathan, he was unprepared. Thus, on October 25, 2012, the OAE sent a letter to respondents, rescheduling the audit to December 17, 2012. However, neither of them were available when Lakind and Spedding appeared for the audit on that date. Jonathan claimed that he had parked his car in New York to have the law firm records printed at Kinkos, but someone broke into the vehicle and stole the law firm records. Sal claimed that he had laid all recordkeeping responsibility on his son, since Sal was burdened by overseeing the care for his own ill and elderly mother.
The auditors pursued the matter but
Jonathan again explained that his car had been towed in Manhattan when he brought his records to Kinkos to be printed and the records were stolen from the car. Despite four requests by Lakind, Jonathan never provided documentation showing that his car had been towed.
Respondents, despite extraordinary opportunities extended by both the OAE and the Supreme Court, utterly have failed to comply with their obligation to comply with the OAE’s requests for the production of their records. Not only have they failed to comply with these lawful demands, but also they have attempted to spin a tale of deceit and misdirection that pales in comparison only to how poorly constructed or Respondents have compounded easily exposed those tales were. their blatant disdain for the disciplinary system by failing to file answers to the disciplinary complaint, defaulting on the matter.
Over the course of almost two-and-a-half years, respondents were unprepared for one audit when the auditors arrived and failed to appear for two others. Despite multiple demands, they made two incomplete document productions, which were so deficient that they created more questions than answers. They failed to respond to no less than six letters sent by the OAE and ignored a multitude of telephone messages. Respondents also made numerous excuses for their lack of cooperation, including an unsubstantiated report of a towed car; stolen records from that car; a misrepresentation regarding the dates of a scheduled vacation; a sudden illness for Jonathan; an illness and required surgery for Sal; and the need for Sal to care for his elderly mother. Sal also claimed, on at least one occasion, that his son was responsible for the recordkeeping in what could reasonably be interpreted as an attempt to shift the recordkeeping and cooperation responsibility entirely to Jonathan. Respondents also ignored two Court orders, directing them to appear for an audit.
For the father
First, the law firm is in Sal’s name and, therefore, he is responsible for its activities. Based on the record, it appears that Sal is the partner and Jonathan the associate and therefore, Sal has the additional responsibility of supervising his son. Second, we found it disturbing that Sal attempted to pass the onus of responsibility to his son by telling the OAE he has nothing to do with recordkeeping, but rather his son handles that aspect. Third, Sal, at best, misled investigators when he claimed an audit would conflict with a planned family vacation. Upon receiving proof of that vacation, the investigator determined that the trip was to begin five days after the scheduled audit date. These factors convinced us that a reprimand is insufficient and we, therefore, determined that Sal should receive a censure.
And the son
Jonathan, on the other hand, has a prior admonition for lack of diligence and a failure to communicate with the client. Therefore, his baseline discipline is a reprimand, which we determined to increase to a censure, based on his failure to file an answer to the disciplinary complaint in this matter.
One last observation warrants mention. The indifference that these respondents displayed not only toward their obligation to cooperate with the Court’s processes, but also and importantly toward their obligation in respect of identifying and accounting for their clients’ funds, is astounding. They continue to ignore their responsibilities, even in the face of temporary suspension. We find respondents’ complete abdication of this very basic and important responsibility disgraceful and have considered their indifference in our determination to enhance discipline in this matter.
Censure? (Mike Frisch)
An indefinite suspension of an attorney wa imposed by the Massachusetts Supreme Judicial Court for an attorney's intentional misuse of the proceeds of a disabled veteran's estate.
And the fees were, to put it mildly, excessive
The probate of the client’s estate was routine and presented no novel or difficult issues. At the time of his death, all of the client’s assets were under the control of a guardian. The guardian filed a final account, which was approved by the court. The guardian transferred the client’s assets to the respondent after the respondent was appointed as the estate’s representative. The life insurance proceeds were paid to the estate immediately upon receipt of proof of the respondent’s appointment as the estate’s representative and a copy of the client’s death certificate. The client’s final expenses, not already paid by his guardian, were minimal. The tax returns for the estate were prepared by an accountant whom the respondent hired and whose fees were paid from the assets of the estate as reflected in the First Account.
Notwithstanding the uncomplicated nature of the estate, the respondent charged the estate $117,214.50. This amount included $72,750 in legal fees for allegedly 286.25 hours of legal work, an amount that the respondent intentionally inflated. In addition to misrepresenting the amount of time he actually spent on the estate, the respondent performed unnecessary work and charged the estate at his legal rate for work that did not require legal services.
The respondent also charged the estate $27,402 for work performed in his capacity as executor even though the respondent performed no work for the estate in his capacity as executor that he did not charge and bill to the estate as a legal fee. He charged the estate $17,062.50 for legal services which were completely unrelated to his work on behalf of the estate, intentionally misrepresenting the estate’s liability for these fees in the process.
The respondent’s conduct in charging the estate for services that he had not performed and for hours that he had not expended, for charging the estate for unnecessary services and for non-legal services at his legal rate of $250 per hour, and for misrepresenting the estate’s liability for fees generated in connection with unrelated work, violated Mass. R. Prof. C. 1.5(a) and 8.4(c).
He had no prior discipline and had made restitution of less than $30,000. (Mike Frisch)
The Georgia Supreme Court rejected a petition for voluntary discipline of a one-year suspension for an attorney convicted of violat ing New York usury laws.
In her petition, Temple, who became a member of the Georgia Bar in 1990, admits that she pled guilty in New York to a misdemeanor violation of attempted criminal usury in the second degree. The criminal charge related to her role as lead counsel for payday lending companies, in which she advised those companies and their employees to intentionally violate New York’s criminal usury laws. The plea hearing transcript, which Temple attached to her petition, shows that for over five years she knowingly instructed and encouraged her payday lending clients to intentionally violate certain state lending laws, including New York’s criminal usury statutes, and assisted them in doing so.
Temple asserts that she has not practiced law since December 15, 2015, and we agree that her lack of a prior disciplinary record in Georgia and Tennessee, where she is also licensed to practice law, and her cooperation with the State Bar in this matter are mitigating factors. Temple asks that the Court impose a one-year suspension, retroactive to December 15, 2015. She cites no precedent in support of her request.
The State Bar recommends that the Court accept the petition, but makes no recommendation with regard to whether the suspension is retroactive. The State Bar asserts that a one-year suspension is appropriate...
Having carefully considered the petition, response, and the very serious professional misconduct to which Temple has admitted, we cannot agree that a one-year suspension is the appropriate sanction in this matter.
All justices concurred. (Mike Frisch)