Thursday, April 24, 2014

Censure For False Statement To Match.com

A false statement to a third party resulted in an attorney's public censure by the New York Appellate Division for the First Judicial Department.

Here's the story

Shortly after her admission in 2006, respondent opened her own practice and also practiced as of counsel to a New York law firm. Respondent specializes in consumer fraud actions. In November 2010, respondent commenced a proposed class action in Texas on behalf of plaintiff Terry Smith against the online dating service Match.com. Respondent, who is not admitted to practice in Texas, associated herself with local counsel to enable her participation in the action. Respondent did not personally draft the complaint but had input in its drafting. Except for one occasion, respondent did not appear in the Texas court; however, she did participate in discovery and communicated on several occasions with the Texas defense counsel.

On July 5, 2011, respondent placed a telephone call to Match.com's customer service department to obtain the name of a supervisor to depose. Respondent, using a false name, left a voice message and falsely identified herself as a journalist calling from a business journal for a story. A public relations coordinator returned the call later that day. When respondent answered, she used her real name, but when the coordinator stated she was returning a call from the business journal, respondent again used the false name. Respondent was unable to obtain the name of a supervisor, because she did not provide sufficient journalistic credentials in response to the coordinator's inquiries. Realizing she had acted improperly, respondent promptly disclosed her actions to defense counsel. In explaining her actions, respondent claimed that formal discovery would have been ineffective because defense counsel had submitted nonresponsive answers to her prior discovery requests.

On March 15, 2012, the Texas state court issued an order compelling plaintiff Terry Smith to produce certain discovery documents. When plaintiff did not produce the documents, defendant moved for fees and costs and to have plaintiff declared pro se, based on respondent's failure to be admitted pro hac vice. On April 23, 2012, the court held a hearing on the motion at which respondent appeared telephonically. A month before the hearing, plaintiff's local counsel withdrew from the action. Notwithstanding its withdrawal, the local counsel informed respondent that it would still sponsor her pro hac vice application. However, counsel withdrew that offer, just days before the hearing.

On April 25, 2012, the Texas court ruled that respondent had engaged in the unauthorized practice of law by participating in Smith's lawsuit without having satisfied Texas' rules for pro hac vice admission and directed, among other things, that respondent file a complete pro hac vice application, with proper support, on or before May 3, 2012 or the court would enjoin her from further participation in the action. The order also awarded Match.com $10,000 in costs and fees,  jointly and severally assessed against respondent, her New York firm and plaintiff, payable to defense counsel. On May 11, 2012, the court enjoined respondent from further participation because she failed to file a complete pro hac vice application.

Respondent, through local counsel, appealed the district court's order of April 25, 2012 to the Court of Appeals for the Fifth District of Texas. The court dismissed the appeal on the grounds that, under Texas law, it was not subject to appellate review. The appellate court also ordered respondent to pay Match.com's costs in defending the appeal as sanctions for filing a frivolous appeal. In October 2012, the court granted defendant Match.com's motion for summary judgment dismissing the action and did not rule on respondent's motion to reconsider the prior order.

During these disciplinary proceedings, respondent acknowledged the Texas court's April 25, 2012 order but disputed that she had engaged in the unauthorized practice of law. Respondent also acknowledged that she had not paid the $10,000 and did not intend to do so because, in her view, she was not given a proper opportunity to appeal. These proceedings also brought to light two federal actions that respondent commenced against Match.com in Texas.

Respondent was admitted pro hac vice in one of the actions but not the other. The Committee argued that respondent intended to mislead when she testified at her deposition that she had been admitted pro hac vice in both actions. Respondent testified that she was also involved as counsel in actions pending in Pennsylvania and Florida, but was not admitted to practice law in these jurisdictions.

(Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspended Attorney Found In Contempt

One issue that we do not often see addressed in court opinions concerning bar discipline is compliance with orders of suspension.

In a case decided today, the Florida Supreme Court held an attorney in contempt for failing to comply with an earlier order of suspension in a guardianship

Townsend’s argument that he was not the attorney in the guardianship case, and that he was not required to notify the guardianship court of his suspension, is unreasonable. It is apparent that Townsend was the attorney in the case, even if he never filed a formal notice of appearance. Accordingly, we conclude that Townsend was required to notify the guardianship court of his suspension in case number SC07-81, and he failed to do so. Thus, we hold Townsend in contempt.

The referee had rejected a contempt finding on three alleged counts. The court agreed with the referee on two out of three and remanded for a sanction analysis on the sustained count. (Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judging Ethics In South Carolina

The South Carolina Advisory Committee on Standards of Judicial has issued several recent opinions.

A full-time magistrate may serve as vice-president of the alumni chapter of a college fraternity but should be careful to avoid support for invidious discrimination.

A probate judge may not serve on the advisory board of a local bank but can be on the board of a closely-held real estate company.

And when the judge's spouse is a political candidate

A  Circuit Court Judge wishes to be involved in a spouse’s political campaign. The  judge wants to attend candidate forums and debates, as well fund-raising and/or  non-fund raising activities for the spouse’s political campaign.  Additionally, the judge wants to be present  with the judge’s spouse on election night.   The judge also wants to have his or her name and/or picture, without  title, appear on the spouse’s campaign ads and fliers.

CONCLUSION

  1. A  judge may attend fundraising and/or non- fundraising activities of a spouse’s  political campaign.
  2. A  judge may attend a spouse’s candidate forums and debates.
  3. A  judge’s name and/or picture may appear on a spouse’s campaign ads and fliers,  provided that the judge’s title is not included.
  4. A  judge may be present on a spouse’s election night.

(Mike Frisch)

April 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Retaliation Against Former Client, Other Misconduct, Leads To Disbarment

An attorney who, among other things, violated his duty of confidentiality by placing his client's medical records in public pleadings has been disbarred by the District of Columbia Court of Appeals.

The key findings

The Board [on Professional Responsibility] accepted the Hearing Committee’s findings that respondent represented Ms. Nunnally in an employment discrimination suit from September 12, 2005, until she discharged him on November 28, 2008. In connection with that representation, respondent filed several frivolous and inflammatory motions, failed to appear at a deposition of an important witness who was hostile to Ms. Nunnally, neglected to file certain motions which effectively prevented Ms. Nunnally from presenting evidence for her retaliation claims, introduced Ms. Nunnally’s confidential medical records into the public record, and sought and received a six month postponement of Ms. Nunnally’s trial without her consent.

After Ms. Nunnally discharged respondent on November 28, 2008, he threatened her and refused to release her case file to her. She then filed a complaint against respondent with Bar Counsel and initiated an arbitration claim before the Attorney/Client Arbitration Board ("ACAB") seeking repayment of some of the fees she had paid him. In response, respondent submitted to Bar Counsel and ACAB inconsistent bills that he had never given Ms. Nunnally and that inflated what she owed him according to their initial fee agreement. After ACAB entered an award to Ms. Nunnally of $11,000 against respondent, he filed a civil suit against her in Superior Court on the basis of the same falsified billing records that ACAB had rejected. Respondent submitted similar falsified billing records to the Bankruptcy Court, where he filed another claim against Ms. Nunnally. Respondent repeatedly submitted Ms. Nunnally’s confidential medical records subject to attorney-client privilege into the public records in these and other proceedings.

In a second matter, the attorney

...represented Tenedia Davis and her minor daughter in a personal injury action. Because respondent failed to identify any fact witnesses in the joint pretrial statement, he was unable to put any fact witnesses on at trial to establish that the defendant had caused Ms. Davis’s daughter’s injuries, and the court entered judgment as a matter of law for the defendant. On appeal, respondent submitted a fabricated joint pretrial statement that included fact witnesses, and told this court at oral argument that he had sent the fabricated document to opposing counsel prior to trial.

(Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Billing Fraud Charges Against Chicago Attorney

The Illinois Administrator has charged an attorney with the following

Between approximately 1991 and September 2013,  Respondent was a partner at a law firm ("the firm") in the firm’s Chicago  office. Between at least January 1, 2012 through July 31, 2013, Respondent was  the partner responsible for the preparation and submission of bills relating to  the firm’s representation of a large, publically-owned client ("the client") in  a series of matters, including an inquiry by a federal regulatory agency, a  series of related shareholder matters, and a lawsuit filed in federal court. The  amounts the firm billed the client on those matters were a function of the hours  worked by the firm’s attorneys ("the billers") and those billers’ hourly rates.

During the period set forth in paragraph one,  above, in preparing the bills relating to the client’s matters, Respondent  altered the firm’s internal records, including pre-bills (also called "pro  formas"), either by increasing the hourly times charges for individual billers,  by moving time from a biller at a lower hourly rate to a biller at a higher  rate, or by increasing the amount of time recorded by a biller. The result of  these actions was to increase the amount of fees billed to the client on the  final bills.

Between January 1, 2012 and July 31, 2013, the  firm’s billers recorded 19,092.3 hours on the client’s various matters. During  that same period, Respondent sent bills to the client that falsely stated that  the billers had spent 19,951.3 hours on the matters, an increase of 859 hours.  Respondent’s alterations to the firm’s billing records had the effect of  increasing the amount billed to the client by $251,863.

Respondent knew that his statements concerning  the amount of time spent by the firm’s billers, and about the value of their  services (referred to in paragraph three, above), were false, in that those  statements inflated both the amount of time purportedly spent by the firm’s  billers and the value of their services.

At no time did the client authorize Respondent  to charge it a premium above the amount determined by multiplying the billers’  hourly rate by the number of hours they worked on a matter, nor did it authorize  Respondent to move time between billers, to increase the hourly rates the firm  charged for the billers’ time, or to charge the client for more hours than the  billers actually worked.

In reliance on Respondent’s statements  concerning the time expended by the firm’s billers and the value of the services  provided by the firm, the client paid the amounts claimed as fees in the bills  it received from Respondent.

The complaint alleges violation of Rules 1.5 (fees) and 8.4(c) (dishonesty). (Mike Frisch)

April 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Attorney Alleged To Have Stolen From Daughter's Education Expenses Account

The North Carolina State Bar has filed charges against an attorney, alleging that he withdrew funds from an account that was to be held as custodian to pay solely for his daughter's education and related expenses.

The account was set up as part of a divorce settlement in 1994.

The attorney is alleged to have used $82,000 for his own purposes, including paying for a European vacation and elective plastic surgery for his (presumably) new spouse. (Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Desire To Adopt Leads To Lengthy Suspension

A Colorado Hearing Panel has ordered a three-year suspension in a rather unusual case involving false statements

[The attorney]  engaged in misconduct in the course of seeking to adopt her second cousin’s baby. She circumvented proper channels for the adoption by falsely listing her own husband as the birth father on the baby’s birth certificate, and she later filed a petition for stepparent adoption in which she referred to her husband as the birth father. She also counseled her husband to falsely aver that he was the birth father in a related filing.

As to sanction

In this case, Respondent flouted a cardinal principle: that lawyers must tell the truth in their professional and personal lives. She should answer for this misconduct by submitting to a significant sanction. But Respondent’s misconduct occurred as she was wrestling with painful personal circumstances, rather than in the course of representing a client. Moreover, her misconduct represents an aberration when viewed in light of her otherwise fine character and her commitment to using her legal training for the benefit of children in need. Under these circumstances, the Hearing Board determines that a threeyear suspension is the fitting sanction.

(Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Domestic Violence Draws Probation

More from Colorado

In February 2013, [attorney] Gillum and his girlfriend got into an argument after drinking together, and Gillum’s girlfriend decided to try to find a cab. Gillum drove after her in his car. He pushed her down, grabbed her hair, and kicked her two or three times on her shins. He then grabbed her purse and struck her across the face with it, causing a black eye and a lump on her head. Fortyeight hours later, after learning that the police were looking for him, Gillum turned himself in to police.

On March 26, 2013, Gillum pleaded guilty in Denver General Sessions court to one count of assault and one count of disturbing the peace, both misdemeanors. He received a twoyear supervised deferred judgment on both counts. Prior to the incident in question, Gillum had not hit the victim or threatened her with violence. Gillum has abided by the terms of his probation and the victim’s restraining order.

The agreed sanction was a stayed 60-day suspension and three years probation, which is quite lenient given the violence. (Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Attorney General To Suspended Attorney

 A disciplinary summary from the web page of the Colorado Supreme Court

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Edward T. Buckingham III (Attorney Registration Number 08218) for eighteen months. The suspension takes effect May 21, 2014.

Buckingham was the Attorney General for the Commonwealth of the Northern Mariana Islands. On February 20, 2014, he was found guilty of the following crimes: (1) use of public supplies, services, time, and personnel for campaign activities; (2) use of the name of a government department or agency to campaign and/or express support for a candidate running for public office; (3) three violations of misconduct in public office; (4) theft of services; and (5) conspiracy to commit theft of services. Buckingham’s sentences for these offenses ranged from six months to one year imprisonment, all suspended. He paid a total of $14,000.00 in fines and was placed on one year of unsupervised probation.

Through this conduct, Buckingham violated Colo. RPC 8.4(b), which proscribes criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

(Mike Frisch)

April 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: If Your Case Settles, Tell The Court

The New Jersey Appellate Division sharply criticized counsel who had failed to timely advise the court that the case had settled.

We were on the eve of filing a comprehensive opinion on the many issues raised in this appeal when, on April 9, 2014, respondent's counsel advised the matter had settled. Upon further inquiry, we learned the parties reached a settlement months ago. Despite our discretion to file an opinion when notified at such a late hour, we have decided not to file our opinion on the merits and now write to dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted.

But no sanctions

Because of the enormous amount of time needlessly expended in this matter, we have seriously considered the imposition of sanctions against both counsel pursuant to Rule 2:9-9, but instead have determined that the publication of this decision is sufficient deterrent to repetition. It is within our discretion to issue an opinion when notified of a settlement shortly before an opinion is scheduled to be released, and we have done so many times. We nonetheless dismiss this appeal.

(Mike Frisch)

April 23, 2014 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Not In Indiana

An Illinois attorney not barred in Indiana has agreed to an order barring him from practice in the Hoosier State.

The Indiana Supreme Court entered the order based on these facts

 Franciscan Alliance Inc. ("Franciscan") is a nonprofit corporation with its headquarters in Mishawaka, Indiana. Franciscan operates 11 hospitals in Indiana and two in Illinois. In late 2011, Respondent was hired by Franciscan to assist with obtaining payment for medical care provided to patients who had been injured in accidents.

Respondent furnished Franciscan hospitals with his letterhead stationery. The hospitals sent a letter using Respondent's letterhead and his firm's signature block ("Discharge Letter") to injured patients when they were discharged. The Discharge Letter stated that Franciscan had partnered with Respondent "to help you have insurance pay your hospital bills related to the accident." The Discharge Letter stated that this service was provided at no cost to the patient, that an experienced team of patient advocates and attorneys would work with the patient to gather relevant information, and that the team would then contact the proper parties to get the patient's hospital bills paid.

The Discharge Letter obscured the relationship between Franciscan and Respondent, as well as the purpose of Respondent's services, it implied that Respondent was offering the patient a service for which he would normally charge, and it created the impression that Respondent was offering to advocate on behalf of the patient even though Respondent was actually advocating on behalf of Franciscan.

If the patient did not respond to the Discharge Letter, Respondent's practice was to send a second letter, and if necessary, a third letter, with an enclosed questionnaire. In these letters, Respondent indicated that he was acting on behalf of the hospital that had retained his office.

Since the initiation of an investigation by the Commission, Respondent has ceased the use of the Discharge Letter. Respondent has formed Hospital Reimbursement Services Inc. ("HRS") to provide services to Franciscan, discharged patients now receive communications on Franciscan letterhead, and Respondent no longer identifies himself as a lawyer when communicating with patients and third parties in conducting HRS business.

The sanction

The parties propose the appropriate discipline is for Respondent to be indefinitely barred from acts constituting the practice of law in this state, including temporary admission, solicitation of clients, and identifying himself as a lawyer in the course of conducting HRS business in Indiana and/or on behalf of Indiana entities, until further order of the Court, plus the costs of this proceeding. The parties agree that HRS should not be barred from providing medical billing services to Franciscan as long as Respondent does so in circumstances that are distinct from providing legal services to clients.

(Mike Frisch)

April 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

In Georgia

The Georgia Supreme Court has disbarred an attorney who defaulted on allegations that she abandoned a civil client and made misrepresentation to a trial court.

The attorney's spouse received a significant amount of publicity in 2007 (see this post here) when he was quarantined with a case of drug-resistant tuberculosis.

NPR reported on the fallout from the spouse's situation

Officials were summoned to two separate hearings on Capitol Hill Wednesday to explain how Atlanta attorney Andrew Speaker was able to leave and re-enter the United States despite a diagnosis of drug-resistant tuberculosis.

Speaker, 31, was placed under a federal isolation order on May 28 after traveling to Europe against the recommendations of public health officials.

(Mike Frisch)

April 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2014

Not That Paul Weiss

An Illinois Hearing Board has issued its long awaited report in a matter involving an attorney (not the firm) named Paul Weiss.

The hearing has proposed a 30-month suspension for a series of sexually harrassing acts against female employees,  a neighbor and a stranger.

For example, this account of an employee was deemed credible

B. testified within the first week of her employment, Respondent took her to see the firm's new office space. When he stood close to her and told her he wanted to kiss her, she took a step back and was uncomfortable and confused. Respondent did not kiss her.

During B.'s employment, Respondent made comments to her regarding her appearance, the possibility of kissing her or having sex with her, and his sex life. He also asked questions of a sexual nature about B.'s relationship with her male roommate. When B. obtained a loan from the firm to pay her cell phone bill, Respondent told her she could pay him back "in the flesh."

B. recalled that Respondent often followed her into the elevator or to the washroom and touched her in a sexual manner by rubbing his hand over her body, including her breasts and buttocks. When she asked him to stop, he laughed. Although she tried to avoid riding the elevator alone, she felt she had to comply with Respondent's errand requests. Respondent's comments and the sexual touching, which occurred on more than fifty occasions, caused B. to feel fearful and very uncomfortable.

B. testified she attended an evening Bulls game with Respondent, Eric Freed and John Flaum. As Respondent was driving her to the train station after the game, he stopped the car, unzipped his pants, and "grabbed for [her] to touch him." When she pulled her hand away, he said "come on, just kiss it." B. refused, and exited the car. The car door was unlocked and Respondent did not try to restrain her or keep her in the car. B. testified she felt uncomfortable, a little shaken and afraid, but did not tell anyone about the incident because she was afraid, ashamed, and did not want to lose her job. 

B. acknowledged that Respondent raised issues regarding her work performance. In June 2002 he complained that she was not properly maintaining files, and noted she was spending too much time on the phone and internet.

B. arranged for her younger sister, K. W., to work at Freed & Weiss during the summer of 2002. Prior to W.'s employment, B. did not tell her about the incidents with Respondent because she was not comfortable discussing it and she did not think Respondent would bother her sister. She later told W. about Respondent's conduct and, in retrospect, feels upset and disgusted that her sister took a job with the firm.

Throughout B.'s employment she received numerous telephone calls from Respondent to her cellular or work phone. Some of the calls were work-related or requests for errands but others were sexual in nature, as when Respondent told her he was masturbating or thinking of her when he had sex with his wife, or asked her to "talk dirty" to him. She estimated those calls occurred more than fifty times, and possibly more than 100 times, and lasted less than one minute. B. felt disgusted, violated and afraid, and always hung up on Respondent. She believed she had to answer the phone in case the call was work-related.

And from a firm associate

 In the fall of 2002 [associate] S. began feeling sexually harassed by Respondent. On one occasion she was in the copying room with Respondent when he asked if she had a boyfriend and mentioned sex between friends. When he asked if he could touch her leg, she did not respond. He then touched her calf and told her she had become more attractive in the past year. S. stated she felt paralyzed and powerless at the time, which was unusual for her. She did not recall making any comments about Respondent's legs.

 A short time after the copying room incident, S. was sitting next to Respondent as they were reviewing her work. Respondent reached over and placed his hand on her calf for about one second. Although S. did not want Respondent to touch her and was afraid, she focused on work and said nothing. 

 On another occasion Respondent suggested to S. that she start wearing low-cut clothing because "sex sells." S. then asked "why would I want to sell it here?" After that incident, S. felt she had regained her voice. She called a meeting with Respondent and Freed to ask that the harassment stop and, at the same time, she mentioned that her salary was too low. In response, they raised the issue of her billable hours. No more incidents occurred after the meeting.

 S. did not report Respondent's conduct to Jamie Weiss because Jamie was Respondent's wife, or to the part-time office manager Suzanne Kendryna. She did not go to the police because she did not feel that a crime had been committed.

 On December 26, 2002 while S. was vacationing in Florida, she received a voice message from Freed informing her that her employment had been terminated because her work performance and hours were not up to task. S. had no warning and had not been concerned that her job was in jeopardy. She received a termination letter from the firm, but had no further conversations with Respondent or Freed.

There's more

S. N. [now B.] stands five feet two and one-half inches tall and weighs 104 pounds. She worked for Respondent for between 1999 and 2001, when she was approximately 27 years old. Respondent and Jamie Weiss, who worked at the firm but was present in the office only occasionally, were her supervisors. N.'s primary responsibility was organizing the files but she also performed other tasks. N. recalled a casual office atmosphere where Respondent and his partner argued loudly. 

After N. began working at the firm, Respondent called her at home "more than a couple" and "maybe five" times and asked her what she was wearing. Although N. did not think the questions were appropriate, she initially viewed them as a joke and brushed them off by telling Respondent "shut the fuck up" and hanging up the phone. N. told Respondent to stop calling, and eventually he did.

N. recalled Respondent made sexually suggestive comments to her at the office, including telling her he wanted to sleep with her. N. thought the comments were inappropriate, but they went "in one ear and out the other" and she continued on with her day. She described herself as having a thick skin, and was not distraught by his comments. On many occasions while she was sitting on the couch in Respondent's office, he removed his casual pants and changed into dress pants in preparation for court. He always had on boxer shorts, and sometimes the door was open. N. also recalled when she was in Respondent's office he would rub his genitals, over his pants, in a sexual manner.

N. recalled being reprimanded by Respondent and Jamie for having a poor attitude, and being criticized for her work. She acknowledged she was not the best paralegal, and that she had "a bit of a mouth." She did not recall giving Respondent a ride home or inviting him to her parents' home, but may have sent him a balloon bouquet when he had surgery.

Toward the end of N.'s employment, she was in the firm's lunchroom with Respondent when he placed his hand under her clothing and grabbed her breast. She pulled his hand out, screamed at him and left the office. She was upset and nauseated by Respondent's disgusting and inappropriate conduct. At that point she had been looking for a new job for several months, but could not afford to quit without obtaining other employment.

N. testified that her parents and boyfriend knew of Respondent's conduct. She talked to them about filing a sexual harassment charge, but decided it was best to leave her job and move on. She did not report Respondent's action to the police.

Not long after the lunchroom incident, N. told Respondent she was quitting. She did not recall asking Respondent to match an offer she received from another firm. During an argument about whether she should receive pay for unused vacation time, N. told Respondent he owed her the money and he had behaved inappropriately. Respondent asked if she were threatening him with a lawsuit, and then told her she could receive payment if she signed a document stating she would not sue him.

On or about May 31, 2001, N. received a termination agreement from Respondent which stated, among other things, that the firm was providing a severance payment of $434.84 in exchange for her agreement not to sue and to release the firm and its partners from any and all claims related to her employment. N. took the agreement to a lawyer before signing it. She had no recollection of receiving an e-mail from Respondent telling her that, in light of her comment that she intended to sue him if she did not receive payment for her vacation days, she should pack her belongings and leave.

Outside the office

We find that M. K. was a credible witness and we accept her conclusions and impressions with respect to Respondent's behavior. K. testified she frequently tossed Respondent's newspaper to him as she was leaving her apartment building in the morning and, after several such occasions, she came to the realization that he was intentionally exposing himself. Respondent's pattern of requests gave K. ample opportunity to observe his conduct and form a judgment regarding his behavior. Her testimony that she eventually told Respondent to stop, at which point he opened his door all the way and fully exposed himself, was unequivocal and convincing.

And

R. C. testified Respondent approached her in his car as she was walking on a sidewalk. As she stood next to his car to answer his questions and obtain his contact information, she saw that his penis was out of his zipper. When Respondent began speaking aggressively to her and told her to get in his car, she walked away feeling nervous and frightened. J. S. and J. K., both of whom saw C. shortly after the incident, confirmed C.' distress.

Respondent admitted he approached C. in his car, initiated a conversation with her, provided his first name and telephone number, and offered her a ride. He further admitted that his penis possibly could have been visible out of his gym shorts, but denied that any exposure was intentional. He was charged with an ordinance violation, stipulated to what the evidence would be, and was found guilty of disorderly conduct.

C. and her employers were credible witnesses and we had no reason to doubt their testimony. We do not believe C. misinterpreted what she saw and, as a total stranger to Respondent, she had no reason to invent any accusations. We find that Respondent exposed himself to her as she stood next to his car and, based on her description and reaction of alarm, we conclude the exposure was purposeful. We reject Respondent's claim that any impropriety was purely accidental.

And another associate (an excerpt)

On Friday, December 10, 2010 Respondent was making sexual comments to A. throughout the day. When he asked her to remove her shirt for money, she recalled telling him she would make more money as his stripper than as his employee. Around 3:00 Respondent and some non-employee friends opened the office bar and A. made a drink for herself. By 5:30, everyone had left except for Respondent, A. and one other person. A., who had intended to stay at the office until she left to catch a 6:40 train to Indiana, did not want to be alone with Respondent and decided to leave. Respondent followed her onto the elevator where he pushed up against her and asked "am I scaring you?" On the walk to the train station, Respondent made vulgar and suggestive sexual comments and asked her "would you be offended if I put my cock in you?" As they walked through an area away from the main sidewalk, Respondent grabbed her, bent her over backwards, and used his right hand to feel her breasts over her winter coat. A., who was shocked by Respondent's aggression, pushed him away and told him not to touch her. Respondent then proceeded to call her a "cunt" and a "bitch," and accused her of wearing provocative clothing to the office. A. did not run or otherwise try to get away from Respondent, and continued walking to the train station. When they reached the train area, Respondent suddenly became nicer and asked if she wanted to have dinner. A. refused and kept walking.

As to sanction

As we previously indicated, our decision regarding discipline rests most heavily on Respondent's acts toward B. and N., as his conduct toward those vulnerable young women was highly aggressive and involved intimate physical contact. In contrast, his actions toward K. and C., although very offensive, did not involve any touching or use of force. As for A., we viewed her as less vulnerable than the other employees and Respondent's actions toward her as less predatory.

After reviewing the relevant case law and the mitigating and aggravating factors, we conclude that the sanction in this case must be significant and certainly more severe than the one year suspension imposed in the Fishman case, which involved conduct toward only one woman. We do not believe, however, that it should be quite as harsh as the three-year suspension imposed in Rinella, which involved coerced sexual intercourse with clients, as well as use of a client confidence and perjury. While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.

We recommend that Respondent be suspended for thirty months. His misconduct was offensive and pervasive (affecting his office staff, his neighbor and a citizen on a public street) and we found that it reflects adversely on his fitness as a lawyer. A suspension of this length is necessary, therefore, to maintain the integrity of the profession, to deter others from similar acts, and to protect those who would come into contact with him in a law office setting.

I suspect this will end in a disbarment.

I have used initials rather than the names of the victims and have removed the citations to the record. (Mike Frisch)

April 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, April 19, 2014

Practice Pointer: Read The Court Papers

A Massachusetts attorney has been reprimanded for misconduct in the course of representing an elderly client.

According to a summary of the case

An elderly client hired the respondent to represent her in a divorce action filed by her husband, who was also elderly. The couple had various marital assets including a home, where the client continued to live after the husband moved into a nursing home. The client informed the respondent that she did not want to divorce her husband and wanted to continue to live in the couple’s home. Both parties were represented by counsel.

During the divorce proceedings, the client became incapable of making adequately considered decisions about her medical care, finances and the divorce. Doctors diagnosed the client as suffering from Alzheimer’s Dementia, among other impairments, and recommended that the client not live alone. The client had a sister who was willing to become responsiblefor her sister’s affairs includingthe resolution of her divorce, and agreed to serve as the client’s guardian.

The respondent prepared petitions for a general guardianship and a temporary guardianship of the client. In both petitions, the respondent nominated the client’s sister to serve as the client’s guardian. The respondent presented both petitions to the court. The court appointed another lawyer to act as a guardian ad litem to represent the client’s interest in the petition for the general guardianship and issued a citation with an order of service.

The court did not docket or act upon the petition for temporary guardianship. The respondent failed to serve the client with the petitions.

The respondent failed to review the papers he received from the court to determine whether the temporary guardianship had been granted, and incorrectly assumed that it had. The respondent mistakenly believed that the client’s sister had been appointed as the client’s temporary guardian. He negligently misrepresented to opposing counsel and the court that the sister had authority to act on behalf of the client in the divorce.

The parties entered into a separation agreement that provided, among other things, for the sale of the couple’s marital home with the proceeds to be divided in favor of the wife. The respondent did not inform the guardian ad litem of the agreement. The sister executed the agreement on behalf of the client as the client’s temporary guardian. The court accepted the parties’ agreement and entered it as an order in the judgment of divorce.

Subsequent to the entry of the court’s judgment, a clerk discovered that the sister was in fact not the client’s temporary guardian. The court vacated the judgment. While the divorce was again pending, the client regained her faculties, and was able to make decisions in her divorce. The parties entered into a new separation agreement that provided, among other things, for the client to buy the husband’s share of the marital home with other marital assets. The court accepted the parties’ agreement and entered it as an order in its judgment of divorce. The client was able to return to her home.

Among the rule violations was a breach of Rule 1.14 (representation of client under disability. (Mike Frisch)

April 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Interim Suspension For Criminal Conviction

The Ohio Supreme Court has ordered the interim suspension of a attorney convicted of a felony offense.

NBCi4.com had the story of the arrest

A local attorney was arrested after he allegedly tried to break into his ex-girlfriend's home and got into a fight Monday night.

According to 911 calls, a woman called authorities Monday night, claiming that someone broke into her home in the 2300 block of Bush Blvd. in Reynoldsburg.

Monday night, neighbors said they heard screams from the home, and called 911.

"I saw the guy literally just stop three times on the guy's face," said neighbor Cody Wolfsen. "Apparently it all started in the house. I could only imagine what a kid had to go through to see that happen because it was intense."

The victim told police that her 2-year-old daughter was upstairs during the incident.

Upon arrival, police arrested Gerald Salters, who is an attorney, according to the Columbus Bar Association.

Salters was arraigned Tuesday afternoon in Licking County on charges of driving under the influence, aggravated burglary, and endangering children.

A report from the same source has additional details. (Mike Frisch)

April 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Friend On The Bench

A state district court judge who improperly interfered with a pending matter involving a friend has been publicly reprimanded  hy the Nebraska Supreme Court.

...here is essentially no dispute that [Judge] Schatz used his judicial authority to order the release of Davlin without Davlin’s paying a bond. The record shows that Schatz’ actions were not in accord with how bonds were normally set in felony drunk driving cases. Specifically, the record shows that without Schatz’ intervention, Davlin would have remained in jail until his arraignment in county court, when presumably either he would have been released on his own recognizance or a monetary bond would have been set. In the latter and more probable circumstance, Davlin would have been held in jail until he posted bond.

While the court did not condone the conduct, it concluded that a number a mitigating circumstances justified a reprimand. (Mike Frisch)

April 19, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Partner Responsible For Ethics Violations

A name partner in a law firm was suspended for a year and until further order by the New York Appellate Division for the Second Judicial Department for misconduct in the operation of the firm's escrow account.

The respondent and his spouse...were the named partners in the law firm. They were also authorized signatories for the law firm's attorney escrow account, maintained at HSBC Bank and identified as a "Mortgage Closing Account." Between February 2, 2008 and August 28, 2008, eight disbursements from the Mortgage Closing Account created or increased a negative balance of funds therein.

The sanctioned partner's role in the problem

In determining an appropriate measure of discipline to impose, we are mindful that the respondent was no longer an active participant in the law firm at the time of the underlying events, and was not directly involved in the subject defalcations. However, the respondent remained a named partner of the law firm, and an authorized signatory for the law firm's Mortgage Closing Account, with attendant fiduciary obligations. Despite significant losses incurred by one or more of the clients of the law firm, there has been no effort on the part of the respondent to make restitution to those clients. The respondent's prior disciplinary history consists of three Letters of Caution.

The spouse resigned from practice and went to prison. (Mike Frisch)

April 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2014

Former U.S. Attorney Reprimanded

The former United States Attorney for the District of Arizona has agreed to a reprimand by the Presiding Disciplinary Judge.

The misconduct involved a leak in connection with the investigation into Fast & Furious.

The reprimand notes that the attorney acted "under tremendous strain as [his office] dealt with an unprecedented series of national issues." He was motivated by a sense that his office was not being fairly portrayed in the media and not adequately defended by the Department of Justice. He had no pecuniary motive. (Mike Frisch)

April 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Timely Issue Draws Editorial Comment

An editorial in today's New York Times

In 2009, a lawyer in New York helped his client settle a claim for $30,000. The lawyer then had the check issued in his own name, deposited it into his own account and used all of the funds for himself. The client demanded his money to no avail.

It took more than three years before the lawyer was disbarred for stealing a client’s funds. During all that time, the lawyer, who already had a history of serious disciplinary infractions, kept working.

This is a disturbingly common story in New York, which has more lawyers than any other state. Punishments for those who violate obligations to a client — if not the law — are slow, inconsistently levied and often hidden from the public.

Professional discipline is essential to the integrity of any legal system. Unfortunately in New York, the process for dealing with lawyer misconduct is “deficient in design and operation,” writes Stephen Gillers, a professor at New York University School of Law in an article to be published next month in N.Y.U.’s Journal of Legislation and Public Policy.

Professor Gillers examined attorney-discipline cases going back to 1982 and all 577 court opinions imposing sanctions issued over the past six years. In addition to the many instances of “unacceptable” delay in the official response to complaints about lawyers, he documents the great disparity in the way similar violations are handled by courts in different parts of the state.

For example, a lawyer who filed false documents, made false statements and improperly notarized a client’s signature was suspended for two and a half years by the appeals court in Manhattan. But, in Brooklyn, comparable actions by a different lawyer resulted only in a formal rebuke but not a suspension. In upstate New York, appellate courts rarely explain the reasons for their decision to sanction or not sanction, and, when they do, they often don’t follow their own earlier rulings.

Perhaps most troubling is the overall lack of transparency that pervades the system. Unlike 40 other states, New York does not inform the public of pending charges against lawyers. It is also unnecessarily difficult to learn when a lawyer has been officially sanctioned, even though sanctions — which can include censure, suspension or disbarment — are part of the public record.

At the very least, New York, which has 166,000 lawyers, should adopt uniform standards for disciplining lawyers. The American Bar Association set clear and sensible standards in 1986, but some states have successfully established their own.

In California, for example, almost all disciplinary cases are handled by a State Bar Court that is staffed with full-time judges who issue thorough rulings. Professor Gillers also recommends that every lawyer’s disciplinary history be made easily available online, and that law firms tell potential clients how to access the information.

Not everyone will be eager to upset the status quo, including the appellate judges who would like to maintain their control over the process, and the lawyers who benefit from the leniency of local courts. But it must change if New Yorkers are to have confidence in the lawyers who represent them.

The issues raised here deserve a great deal more public scrutiny than has heretofore been brought to bear.

Let's hope this helps. (Mike Frisch)

April 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

F Bombs As Ethics Violations

The North Carolina State Bar has filed ethics charges against an attorney who is characterized as an organizer and member of the "Occupy Asheville" movement.

The allegations relate to the attorney's visit to a detention facility after arrest warrants had been issued for other members of the movement.

The attorney allegedly identified herself as an attorney and asked a magistrate, "[w]hat the hell is going on around here" with the arrest warrants.

The magistrate asked her to "watch [her] language."

The attorney sought a list of persons named in the warrants. Her request was denied.

Then, it is alleged, the attorney asked the magistrate, "what the fuck is going on around here," expressed the view that "this is a bunch of bullshit," "Oh yeah, I said fuck," "This is fucking ridiculous," and "This is fucking crazy."

The charge: undignified or discourteous behavior that is degrading to a tribunal. (Mike Frisch)

April 16, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)