Friday, September 4, 2015

Office Move Leads to Unauthorized Practice Admonition

The web page of the Massachusetts Board of Bar Overseers has a summary of an admonition imposed on an attorney

On June 11, 2001, the respondent became a member of the Massachusetts bar. She has since maintained an “active status” law license. The respondent is not and has never been a member of the Pennsylvania bar.

In 2008, the respondent became the General Counsel of a company headquartered in Massachusetts. In or about May of 2011, the company relocated its headquarters to Philadelphia, Pennsylvania. In September of 2011, the respondent moved to Philadelphia to continue her work as General Counsel from the company’s new headquarters. Over the next three years, the respondent oversaw the company’s legal operations. In this role, her legal practice was limited to advising the company on issues under Massachusetts and federal law. Issues concerning Pennsylvania law were referred to outside legal counsel.

Under Pennsylvania law, every attorney not a member of the Pennsylvania bar who is employed by and regularly performs legal services in Pennsylvania for a business in that state must obtain a “Limited In-House Corporate Counsel License” from the Pennsylvania Board of Law Examiners. There is no exemption for attorneys who specialize in federal law and/or the law of another state.

Despite the requirements of Pennsylvania law, the respondent failed to apply for or obtain a “Limited In-House Corporate Counsel License” from the Pennsylvania Board of Law Examiners. By working as an in-house lawyer in Pennsylvania without a “Limited In-House Corporate Counsel License,” the respondent violated Mass. R. Prof. C. 5.5(a) [Unauthorized Practice of law].

The respondent has no disciplinary history. She received an admonition for the misconduct described above.

The summary does not identify the attorney. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Spite No Mitigation

The Iowa Supreme Court has suspended an attorney for at least 30 days

A division of the Grievance Commission of the Supreme Court of Iowa found [the attorney] violated several rules by failing to deposit an advance fee into his trust account, maintain proper trust account records, account for withdrawals, and communicate his hourly rate. The commission recommended a sixty-day suspension, noting as an aggravating factor his failure to correct his bookkeeping practices after a 2011 audit. Santiago admits he violated the trust account rules but argues the sanction should be no more than a public reprimand. He argues the attorney who reported his misconduct did so out of spite, and his work for underserved, nonEnglish speaking clientele merits greater consideration to mitigate the sanction. On our de novo review, we find Santiago violated the rules and suspend his license to practice law for thirty days.

The court found the violations and treated his service to an underserved community as mitigation.

But spite was not a mitigator

Santiago argues [attorney] Cole was motivated by petty revenge to file her complaint with the Board and that we should consider her motivation as a mitigating factor. His argument fails factually and legally. Factually, we do not find Cole bears a grudge from the events of the Pirtle trial ten years prior or that she filed the ethics complaint to settle a score with Santiago.

Legally, Cole’s motivation for filing the ethics complaint is irrelevant to the sanction we impose.

Cases cited by the attorney in support of the asserted mitigation involved an attorney's own personal issues. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Removed And Disbarred

The Mississippi Supreme Court removed a Chancery Court judge from office as a res ult of h is conviction for obstruction of justice.

From the statement of agreed facts

The Formal Complaint in this matter contains various allegations regarding Respondent’s mismanagement of [a] conservatorship. Due to various irregularities occurring in Respondent’s handling of the conservatorship, the matter was investigated by the Federal Bureau of Investigation as well as the Commission. As a result of that investigation, a grand jury was convened and witnesses called to testify regarding the administration of the conservatorship. In association therewith, Respondent has entered a guilty plea related to a charge of attempting to corruptly influence a witness subpoenaed to appear before a Federal Grand Jury proceeding and attempting to impede the provision of documents by the witness to the Federal Grand Jury with the intent to influence the outcome of the proceeding in violation of Section 1512(c)(2), Title 18, United States Code. The Federal Court Judge has accepted the plea and will impose sentence on Respondent in January, 2015, thereby rendering a hearing on the merits in the Commission case unnecessary and superfluous. Based upon said plea, Respondent has resigned from office and agrees that the appropriate sanction in this cause should be removal from office.

He was also taxed with costs.

By separate order, he was permanently disbarred. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 3, 2015

F Bombs Deployed

An encounter with police after an attorney on vacation at Eagle Ridge Resort had struck an object with his car and not stopped has resulted in a complaint filed by the Illinois Administrator.

As Respondent was driving between Galena and Eagle Ridge Resort, Jo Davies County Sheriff’s Deputy Scott Wernet identified Respondent’s car as the vehicle involved in the incident...In observing the vehicle, Deputy Wernet noted that Respondent had no taillights and was swerving and crossing the center line on the road. Deputy Wernet turned on his flashing lights and Respondent pulled over to the side of the road.

He had been drinking prior to the stop.

The charges allege

During the arrest, Respondent told the three officers repeatedly that they were "assholes." Respondent made the statement  "I’m from the south side. I know people and we will find you." Sgt. Ketelsen  asked Respondent if that was a threat and Respondent answered that it was "a  fucking promise." Respondent informed Deputy Wernet that he was an attorney.

Deputy Wernet proceeded to transport Respondent  to the Jo Davies County jail. During the transport, which was videotaped,  Respondent repeatedly stated that there was no probable cause for his arrest and  that it was unjust. Respondent again stated that he was from the south side and  above the law. Respondent stated "you hurt me, I will hurt you," and "If you  want a war, we will go to war."

...upon arrival at the Jo  Davies County jail, during the booking, which was also videotaped, Respondent  repeatedly pleaded with the officers to release him. Respondent also made the  following statements during his booking:

Respondent: That’s a bunch of fucking asses.

Sgt. Ketelsen: Put your hands up on the lockers.

Respondent: And I’m going to fucking completely  fucking annihilate this whole fucking department.

Sgt. Ketelsen: Alright. Go ahead and put your hands  on the lockers.

Respondent: And I’m an attorney. I can do it.

*******

Respondent: You will fucking…yeah, you better get  some God damn protection at your God damn house. Yes, you better…why are you  doing this?

*******

Respondent: This is…swerving (inaudible) traffic.  This is what it is, right. And speeding a little bit to move (inaudible)  traffic. Good case. Rock solid. It’s rock solid. I long to see you fucking  (inaudible) and I will (inaudible) mother fucker and where’s my girlfriend,  asshole? What’d you do to my girlfriend, asshole? Do you have a wife…do you have  a wife, asshole? You’re going to fucking see something going on. (Inaudible)  does she ever go out because I’ll go with her. Fucker. You mother fucker. No  deal mother fucker.

*******

Respondent: My wife. I don’t have a wife anymore  but you can go after her if you want. Do you have a wife because I’m going to go  after her.

Sgt. Ketelsen: (Inaudible)

Respondent: Awesome. Does she…is she cute at all?  Maybe not. Damn it. I tell you, I’m going to hurt you as a fucking civilian can  hurt you.

 The attorney was charged with driving  under the influence of alcohol and other offenses. He was separately charged with threatening the officers.

He was convicted of the DUI. The remaining criminal and traffic charges were dismissed.

He was later convicted of driving while his license was suspended.

He is also charged in the disciplinary case with commingling in a client matter. (Mike Frisch)

September 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Veteran Must Pay

A retired Lieutenant Colonel in the Army Reserve is not eligible for treatment as an indigent for purposes of waiving court costs, according to a decision issued today by the Massachusetts Supreme Judicial Court.

Since 1974, the Legislature has demonstrated a commitment to ensuring that the doors of the Commonwealth's courts will not be closed to the poor. This commitment is embodied in the so-called Indigent Court Costs Law, G. L. c. 261, §§ 27A-27G (§§ 27A-27G), which creates a mechanism for indigent persons to obtain waivers or reductions of court fees and other costs incurred during litigation. The statutory scheme defines "[i]ndigent persons" to include those with income below the poverty line; those who demonstrate that the payment of fees and costs would create a hardship; and those who receive "public assistance" under certain programs, including "veterans' benefits programs." G. L. c. 261, § 27A. The question presented in this appeal is whether a litigant such as the plaintiff, who receives Federal veterans' benefits and a Massachusetts property tax abatement that are not dependent on his economic circumstances, is considered indigent under § 27A and therefore entitled to a waiver despite having ample financial resources to pay court fees and costs.

We conclude that the statute was not intended to provide for a waiver under these circumstances. The history of the statute reveals an unbroken chain of legislative intent to limit the definition of indigent to persons whose limited financial resources prevent them from obtaining meaningful access to the Commonwealth's courts. In light of the statute's history and purpose, we interpret the phrase "public assistance under . . . veterans' benefits programs" as referring only to the Massachusetts need-based programs for veterans presently administered pursuant to G. L. c. 115, § 5. Because the plaintiff does not participate in such a program, his request for a waiver of fees and costs was properly denied.

The suit where waiver was sought "alleg[ed] various constitutional violations with respect to the presidential ballot."

The court

we conclude that the "veterans' benefits" program described in the first definition of                     "[i]ndigent" under G. L. c. 261, § 27A, refers to the need-based Massachusetts veterans' benefits program presently administered pursuant to G. L. c. 115, § 5. Reade does not receive such benefits and therefore he is not indigent on that ground. Consequently, we affirm the judge's decision denying Reade's request for a waiver of normal and extra court fees and litigation costs.

(Mike Frisch)

September 3, 2015 | Permalink | Comments (0)

Law Office Lease Not Invalid

The District of Columbia Court of Appeals rejected a claim by Constantine Cannon LLP that its lease for office space was invalid

Appellee Mullen Management Company, Inc., is a Delaware corporation that owns and leases an office building near McPherson Square in the city’s northwest quadrant. Mullen obtained a certificate of authority to transact business in D.C. on December 30, 1996. Appellant Constantine Cannon LLP is a Delaware limited liability partnership whose attorneys practice law in the District. In early 2007, Cannon approached Mullen to inquire about leasing office space in Mullen’s building. The parties signed a lease on November 30, 2007, and Cannon began to make improvements to the property as required by the lease. A dispute arose shortly thereafter regarding the building’s air ventilation system, and Cannon directed its general contractor to stop work in February 2008. Cannon refused to pay its contractor, who then recorded a mechanic’s lien on the property for nearly two million dollars.

Cannon then learned that Mullen’s certificate of authority had been revoked on September 10, 2007, eleven weeks before the lease was signed, after the D.C. Department of Consumer and Regulatory Affairs determined that Mullen “failed and/or refused to file reports and pay all fees due and owing.” Cannon sent Mullen a letter on March 6, 2008, contending that the lease was void for that reason.

Associate Judge Beckwith for the division

While we have held that doing business without the appropriate license voids contracts in some circumstances, we have done so only when the licensing scheme is a “prohibitory regulation enacted to protect the public,” especially those aimed at preventing “fraudulent and unscrupulous practices.”

Holding

we affirm the trial court’s judgment that the Cannon-Mullen lease was enforceable notwithstanding that it was signed after Mullen’s certificate of authority to do business in the District was revoked for failure to pay fees and file reports.

(Mike Frisch)

September 3, 2015 | Permalink | Comments (0)

Payment Offer To Witness Leads To Suspension

The Louisiana Supreme Court has ordered an attorney suspended for a year and a day for his dealings with a witness in a criminal case.

Respondent represented Emily Winborn in criminal proceedings captioned State of Louisiana v. Emily Winborn, case number 498-791 on the docket of the Criminal District Court for the Parish of Orleans. Ms. Winborn was charged with simple burglary of an inhabited dwelling based on allegations that she broke into Brian Bode’s raised double-shotgun house and stole a gun.

Mr. Bode testified as a witness for the prosecution at Ms. Winborn’s trial. At that time, Mr. Bode testified that respondent came to a restaurant he owns with his daughter and offered him $300 to drop the charges against Ms. Winborn. Mr. Bode also testified that when he refused to drop the charges, respondent confronted him again and offered him $500 not to show up in court for Ms. Winborn’s trial.

The attorney admitted the conduct but contended that the payment was intended as restitution for the gun,

The hearing committee

After hearing the testimony, observing the witnesses’ demeanors, and considering the logical interpretation of the interactions, the committee believed that (1) the $300 was a bribe for Mr. Bode to drop the charges against Ms. Winborn, and (2) the $500 was offered as a “last resort” attempt to keep Mr. Bode from appearing at the trial, which would make it more likely that the charges would be dropped. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Attorney Disciplinary Board and Court here accepted the findings.

On sanction

We have traditionally dealt harshly with lawyers who give or offer to give anything of value to a witness with the intent to influence their conduct as witnesses in criminal proceedings.

Justice Guidry would impose greater discipline.

Justice Crichton would disbar

I agree with the majority’s finding that the hearing committee correctly determined, based on its credibility findings and clear and convincing evidence, that respondent violated the Rules of Professional Conduct as charged. However, I find that the seriousness of respondent’s conduct, when coupled with his previous disciplinary record, warrants disbarment.

(Mike Frisch)

September 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reinstated

The Maine Supreme Judicial Court has reinstated an attorney suspended for a year for conduct that took place in the wake of her divorce and the death of her father.

From the suspension order

Despite the fact that [the attorney] is afflicted with a substantial proclivity for substance abuse and a very serious mental health condition, she was apparently able to compensate well during the decade that preceded her precipitous decline after 2010. It is abundantly clear that that she went seriously “off the rails” (a term that was used on numerous occasions during the hearing) thereafter.

The court has little difficulty in concluding that the combined effects of these conditions clearly produced a substantial incapacity that adversely impacted [her] ability to practice law and resulted in a substantial threat of irreparable harm to the public. Indeed, during this time, she was essentially unable to manage her own affairs, let alone the complex matters involved in the representation of others. The court finds that the incapacitating symptoms of these conditions remain essentially as florid today as they were during the last two years. Accordingly, the court hereby orders that [she] be suspended from the practice of law in the State of Maine.

The issues of the duration and conditions of the suspension are conjoined with [her] insight into her medical conditions and the progress she has made to manage them.

The reinstatement is subject to a number of conditions. (Mike Frisch)

September 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 2, 2015

Voice Mail Racial And Religious Abuse Alleged As Ethics Violations

The Illinois Administrator has charged an attorney with harassing communications to a client's father  and a third party and misconduct in attempting to collect fees over an agreed flat fee

In a criminal defense matter

In or about the summer of 2014, despite the fact that Respondent and Buchanan had previously agreed that Respondent would represent Buchanan’s son, Leon, for a $3,500 flat fee...Respondent began requesting that Buchanan pay him an additional $500 in legal fees to continue representing Leon in case number 12CR0848701. As a result, Buchanan paid Respondent an additional $200 in legal fees. However, Respondent demanded that Buchanan pay him an additional $300. Respondent left Buchanan several voice mail messages, in which he made the following statements:

  1. "You are a piece of garbage. All black people are alike. You’re slovenly, ignorant."

  2. "You better give me my money or your son’s case is going to be delayed."

  3. "I’m sick of you, you piece of shit."

  4. "I don’t know who’s the biggest bitch. You or [family]. I’m going to lock you up."

  5. "Low class n-----s. I’m going to have you all locked up."

  6. "You call me with stupid shit. Wait until next court date."

  7. "You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I’ll withdraw. I already told the State’s Attorney to writ your son over."

  8. "You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer."

  9. "You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your son."

  10. "Help your son. Pay. Stop delaying case."

At no time did Respondent advise Leon and/or Buchanan to consult with independent counsel before Buchanan paid Respondent additional legal fees over the original $3,500 flat fee agreement between Respondent and Buchanan. At no time did Respondent explain to Leon and/or Buchanan that Respondent’s receipt of additional legal fees was contrary to the agreement to pay Respondent a flat legal fee and that they had no obligation to agree to pay Respondent additional legal fees.

At no time did Respondent explain to Leon and/or Buchanan that his interest in obtaining additional legal fees was in conflict with Leon and/or Buchanan’s interest in maintaining the $3,500 flat fee agreement, nor did Respondent obtain Leon and/or Buchanan’s consent after disclosure.

Voicemail  in a power of attorney matter to the administrator of the facility that had housed the client

You know, I tried to be academic, intellectual, and community-minded and everything else with you. What you’re supposed to do as a nursing home, you piece of [shoe or Jew] garbage. You put my girl out in the street and didn’t give a fuck, and didn’t let her come back, and know that she is mentally challenged. Are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don’t know what that is—called violation of fiduciary capacity. And that’s what you’ve done in this, with your stupid Jew ass. Mother-fuck you, how you fucked my girl. Okay, I’m going to sue you, a federal law-- I’ll sue you, sue the fuck out of you. You should’ve knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She’s schizophrenic, hyper-paranoid schizophrenic, you piece of shit.

 He also is charged with neglect of a criminal appeal and failure to cooperate with the disciplinary process. (Mike Frisch)

September 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Violation Of Suspension Order Draws Call For Disbarment

The Illinois Review Board has recommended disbarment of an attorney found to have failed to comply with an order of suspension.

He had continued to practice law in several matters after suspension

Following his suspension, Respondent arranged with his brother-in-law, Robert Rothstein, to work with him during his suspension. Respondent testified that he contemplated that he would act as a "paralegal" for Rothstein and would be paid $100 an hour for his services. This arrangement admittedly violated Supreme Court Rule 764. Despite the arrangement, Respondent acted as an attorney, rather than as a paralegal for Rothstein. The Hearing Board found that Respondent continued to hold himself out as an attorney and practiced law after his suspension...

While Respondent argues that his mental state following the Court's order of suspension prevented him from understanding the import of the Court's order, we note that he was able to render advice to clients and negotiate with counsel during this time period. His conduct was aggravated by his actions in asking his brother in law to assist him in the unauthorized practice of law. The Court has stated that the unauthorized practice of law after a Court order imposing discipline "is a serious offense because it gives the impression that our system of attorney discipline is ineffective and that the public is not being protected from unethical attorneys." See, In re Kuta, 86 Ill.2d 154, 161-62, 427 N.E.2d 136 (1981). We agree with the Hearing Board's assessment of the seriousness of Respondent's misconduct and the recommendation of disbarment.

The original suspension was for six months. (Mike Frisch)

September 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 1, 2015

Trouble With Alcohol

An attorney who had six alcohol-related criminal incidents from 2008 to 2013 has been suspended for two years, according to the California Bar Journal.

From the summary

In one 2012 matter, police were called to a Mexican restaurant in Moss Landing to investigate a reported battery. When they arrived they found Soukup, whom they were told was the perpetrator, sitting in the driver’s seat of her car. When officers opened the door, they smelled alcohol and Soukup’s eyes were bloodshot and glossy. Soukup said she had not consumed alcohol and denied having any identification. After she eventually provided her license, police determined it was suspended.

Upon learning she was going to be arrested, Soukup punched a deputy twice in the chest. After deputies put handcuffs on her, she kicked them, striking one of the deputies in the groin. While en route to jail, she screamed obscenities and yelled and kicked at the metal divider behind the driver’s seat of the patrol car.

In another incident, in July 2012, Soukup was found unconscious in her home after one of her 6-year-old sons called 911. She admitted to being drunk, was believed to have been unconscious for 45 minutes and had left the oven on. After being placed under arrest, she was belligerent, aggressive, attempted to kick out the windows of the patrol car and threatened officers by saying she was a lawyer.

In mitigation, she was misdiagnosed and given medication that triggers manic behavior in persons with bipolar disorder. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Million Dollar Man

The California Bar Journal reports a case that seems eminently disbarment-worthy

SCOTT STONE MEHLER [#190014], 43, of Long Beach, was disbarred March 25, 2015 and ordered to comply with rule 9.20 of the California Rules of Court and pay restitution.

Mehler stipulated that within a five-month period in 2013 he misappropriated $1.4 million of his client’s money, spending it on personal expenses. In April of that year, Mehler had been hired to serve as local counsel for to Amerector Inc., the American holding company of a Canadian company known as Canerector. Amerector was purchasing a California company and wire transferred $1.4 million into Mehler’s trust account for the sale.

Although he was tasked with acting as the escrow agent, Mehler transferred $1,856,223.89, which included the $1.4 million, from his trust account into his firm’s money market account. For several months after the close of escrow, Mehler made repeated excuses and engaged in trickery, including falsifying records, to try to hide from the parties involved that he had spent the money.

Though he ended up wiring some of the money, he told the attorney representing the company that was sold that he could not pay the remaining $916,437.84, saying he lost it on “bad investments.” He then emailed the attorney with a proposed payment plan saying he wanted it kept confidential and asked that no legal action be taken against him. He attempted to issue three checks to cover the loss, which were returned for insufficient funds on Jan. 17, 2014. The sellers and Amerector then sued Mehler, and he made partial restitution of $268,642.47.

(Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Running Late

An attorney was suspended for six months and a day by the North Dakota Supreme Court for misconduct in three matters.

One involved a client in the military

Matson represented a client in a divorce action including parental responsibility. The client was in the military and was stationed in South Korea during the representation. Matson took a substantial amount of time to respond to the client's attempts to contact him. His actions during the case resulted in several delays. He arrived for the trial seconds before it began, and attended a hearing in another matter during a recess. Therefore, the client was uninformed about Matson's thoughts regarding the trial or about the next steps during the trial. Matson failed to understand the military compensation system resulting in an error in child support. Matson falsely assured the client he would get the judgment amended with respect to child support. Matson delayed providing rulings to the client, and after January 2014 ceased communicating with the client.

The other two matters involved fee issues

The fee agreements in 5711-SE-1407 and 5718-SE-1409 stated the retainers were non-refundable and also stated that the retainer would be applied toward earned fees and reimbursement for costs. The agreement does not state that the fee was earned upon receipt, was a minimum fee, or was for the purpose of retaining Matson's time. 

He had previously been reprimanded. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Deeply-Rooted Bias Requires Reversal

The New Jersey Appellate Division reversed a criminal conviction for carjacking and related offenses as a result of concerns about juror racial bias

...on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was "concerned" and "nervous" because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, "[t]hey certainly don't live around there, and they don't hang around there." Juror 5, who works in that area, agreed that this seemed strange because that area "mostly is Italian and White people. There really are no Black people around there." Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.

Jurors 5 and 12 were sympathetic with juror 4's predicament and suggested she should report her concerns to the Sheriff's Officer who was assigned to secure the jury during deliberations. The Sheriff's Officer informed the trial judge, who then questioned each of the three jurors separately. The judge decided to allow all three jurors to remain on the jury and continue deliberating after they assured him this incident did not have an effect on their impartiality, they would follow the court's instructions on the law, and they would base their verdict only on the evidence presented at trial.

The court

 On these facts, we are compelled to reverse. When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality.

(Mike Frisch)

September 1, 2015 in Current Affairs | Permalink | Comments (0)

Former Magistrate Faces Attorney Discipline: Litigant Stabbed And Had Sex With Him

The excellent web page of the Ohio Supreme Court has a summary of a disciplinary matter scheduled tomorrow for oral argument

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused 
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

Video of oral argument also is available in Ohio. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Difficult Client As Mitigating Factor

The Nebraska Supreme Court has imposed a 60-day suspension for an attorney's failure to timely proceed with the drafting of an estate plan for a client.

While the client initially was in no rush for the documents, the situation eventually led to frustration and a bar complaint

The referee noted that the client involved in the events at issue in this case was a “difficult” client who provided confusing direction regarding when work was to be done, but the referee stated “[t]his fact is barely mitigating since the exact same fact provides notice to [respondent] that extra care was needed to ensure adequate communication.”

The court on sanction

The evidence in the present case establishes, among other facts, that respondent agreed to prepare estate planning documents for the client and was paid a retainer to complete such work. However, respondent failed to prepare the documents and failed to effectively communicate with the client regarding the status of the work to be completed. In addition, respondent repeatedly failed to cooperate with relator’s investigation.

As aggravating factors, we note, as did the referee, that two other grievances had been submitted against respondent for similar misconduct and that in those situations, respondent similarly failed to cooperate with relator’s investigation in a timely manner. Further, the record shows that respondent has received a private reprimand.

As mitigating factors, we acknowledge, as did the referee, that the client involved with the events at issue in this case was a “difficult” client. We also recognize that several letters of support were written on respondent’s behalf.

The attorney must complete CLE and be subject to monitoring on reinstatement. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Time Was Of The Essence

A trust document that did not get properly signed prior to the death of the creator has led to a disciplinary complaint by the Illinois Administrator.

Beginning in approximately 2005, and continuing to at least March 2014, Respondent represented Bill and Judy Shutt ("Shutts", as a couple, or "Bill," or "Judy," individually) in various real estate transactions. From 2005 until at least March 28, 2014, Bill farmed land owned by Judy’s parents, Ellen ("Ellen") and William ("William") Theobald. Ellen and William had three daughters: Judy, Joyce Allen ("Joyce"), and Patti Jones ("Patti").

In 2013, Ellen and William resided at The Regency ("Regency"), a retirement center, in Springfield, Illinois. Ellen died on February 10, 2013 at the age of 83.

In December 2013, Respondent met with William, who was 86 years old, and Judy at the Regency to discuss updating William’s estate plan. William’s last will had been written with the assistance of other counsel in 2003, and left successive life estates to his three daughters, then to their children, with the remainder in fee simple to William’s great-grandchildren. William, Judy and Respondent discussed changing the estate plan to remove the successive life estates as written, and instead putting the land in trust with life estates to the daughters that would be managed by the trust. William also agreed that 80 acres of the land would be transferred outright to the three daughters at the time of his death. The remaining land would be put in trust, with Judy and Patti designated as trustees.

Respondent and William agreed that Respondent would represent William in preparation of an estate plan that would include a declaration of trust ("trust"), a new will, and a deed in trust relating to the 80 acres. Respondent and William agreed that Respondent would bill William on an hourly basis. Respondent agreed to prepare the necessary documents and to review those documents with William at the Regency.

By March 2014, Respondent had not returned to meet with William to review the new estate plan, nor had Respondent completed the preparation of the necessary documents prior to March 27, 2014.

On March 21 or 22, 2014, William was taken by ambulance to Memorial Medical Center in Springfield, Illinois.

On Thursday, March 27, 2014, Bill called Respondent’s office and spoke to his secretary Lori Rakes ("Rakes"). Bill told Rakes that William was hospitalized, and they did not know how much time William had left to live, and that they still wanted William to sign the paperwork to change William’s estate plan. Rakes contacted Respondent, who directed Rakes to tell Bill that he could pick up the paperwork on March 28, 2014, but that Respondent would be out of the office that day (March 28, 2014). After speaking with Respondent, Rakes told Bill he could come over and pick up the paperwork on March 28, 2014. Respondent and his wife were traveling out of state on March 28, 2014, to visit their son.

In the late evening of March 27, 2014, William, who had an aortic tear in his heart, was in severe pain. The medical staff administered sedatives to him, and William entered into a state of unconsciousness. He remained unconscious until his death the next day.

The complaint alleged that Bill picked up the documents shortly after William's death and that they were signed and notarized at the attorney's office. The document was dated the day after William's death. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 28, 2015

Actual Innocence And Suing Defense Lawyers

A convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence, according to a decision issued today by the Kansas Supreme Court.

This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27  L. Ed. 2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents' Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.

 We affirm the district court judge's decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.

The court held that the agency could not be sued but that, in these circumstances trial and appellate counsel could be

After careful consideration of the competing authorities from other states, we hold that a Kansas criminal defendant is "exonerated" for purposes of accrual of his or her civil legal malpractice claim against counsel on the date that a court grants relief from the conviction on the basis of ineffective assistance of counsel. That relief may come as the result of a K.S.A. 60-1507 motion or some other procedural mechanism in the district court or in one of the appellate courts.

Further

...actual guilt—which if present in these cases will always have occurred prior in time to the alleged legal malpractice—is akin to other legal doctrines of causation and liability such as comparative fault and assumption of risk. All of these doctrines ask

 

"how plaintiffs might be responsible for their own injuries. Guilt-in-fact has the same focus. In other words, if plaintiffs actually engaged in criminal conduct, then they are partially responsible (and more culpable) for their own resulting injuries (such as incarceration). Under these circumstances, the plaintiff's own conduct precludes his or her recovery, just as with other conventional defenses." Shaw v. State, Dept. of Admin., 861 P.2d 566, 572 n.9 (Alaska 1993).

 

 Whether Kansas will permit actual guilt to be pled and proved as a true affirmative defense or will simply require the traditional proximate causation element in the criminal defendant's subsequent malpractice case—thereby permitting a legal malpractice defendant to argue to the jury that the criminal defendant's actual guilt is an intervening and superseding cause of his injury—remains to be seen. See, e.g., Shaw, 861 P.2d at 572 ("Rather than require the plaintiff to prove his actual innocence . . . the defendant may raise the issue of the plaintiff's actual guilt as an affirmative defense. The attorney . . . as the party raising the affirmative defense, will thus have the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff."); Desetti v. Chester, 772 S.E.2d 907, 910 (Va. 2015) ("a legal malpractice plaintiff who alleges that malpractice occurred during the course of a criminal matter must plead facts establishing this element of the cause of action: that the damages to be recovered were proximately caused by the attorney's negligence but were not proximately caused by the legal malpractice plaintiff's own criminal actions").

Resolving these questions must wait for another case on another day.

 (Mike Frisch)

August 28, 2015 | Permalink | Comments (0)

Reprimand For Suit Against Client Who Filed Bar Complaint

An attorney who (through counsel) filed a defamation action against a former client who had complained to disciplinary authorities has been publicly reprimanded for authorizing the filing of a frivolous suit by the Louisiana Attorney Disciplinary Board

The Respondent’s conduct was knowing. Mr. Cashio’s intentional pursuit of this cause of action, which arose in part from the complaint Mr. Searles filed against him with ODC, caused injury to Mr. Searles in that he was forced to defend the action before the court. Moreover, the potential harm of a “chilling effect” could result if respondents, or their attorneys, were allowed to initiate legal action against complainants as a result of their communications with the Board, hearing committees or disciplinary counsel relating to lawyer misconduct. The aggravating factors present include: a refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law. The mitigating factor of no prior disciplinary record is also present...

Like respondents Mr. Raspanti and Mr. Mordock, Mr. Cashio, through his counsel of record, Mr. Hilburn, urged a cause of action strictly prohibited by the Louisiana Supreme Court Rule prohibiting a lawsuit against a complainant predicated on a complaint filed with the Office of Disciplinary Counsel. As such, Mr. Cashio has similarly violated the spirit of Rule XIX, §12(A). Such conduct constitutes a violation of Rules 3.1, 8.4(a) and (d). Like Mr. Raspanti, Mr. Cashio’s conduct was knowing. However, the Court in Raspanti concluded that a public reprimand was appropriate due to the existence of several mitigating factors, several of which apply to Mr. Cashio: both respondents held a strong belief that they were not engaging in inappropriate behavior, and both were experienced attorneys with no disciplinary history. Considering the similar circumstances between the matter at hand and the  Raspanti and Mordock cases, the Board finds that Mr. Cashio should be publically reprimanded, rather than placed on a fully deferred one year suspension, subject to a six month period of unsupervised probation.

The board, over a dissent, also found that the conduct was prejudicial to the administration of justice. (Mike Frisch)

 

August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Alderman

Summary of an Illinois Hearing Board report and recommendation in a matter involving an attorney named Cahnman

The Respondent was charged in a three-count Complaint with having a conflict of interest and engaging in dishonesty. The charges of conflict of interest were based upon the fact that Respondent, while serving as an alderman for the City of Springfield, represented clients in traffic and criminal cases prosecuted in the circuit court, and Springfield Police were the arresting officers in those cases. (Counts I-III). The dishonesty charged in Counts I and III was based upon Respondent's failure to disclose the foregoing representations to the Springfield City Council. The Hearing Board found that charges of conflict of interest were not proved and, thus, that Respondent's failure to disclose the representations was not dishonest conduct.

In regard to Count II, the Hearing Board found that the charge of dishonesty was proved. While Respondent was representing a client named Christian in a traffic case, Christian, though another attorney, filed a lawsuit under the Illinois Freedom of Information Act (FOIA) against the City of Springfield. Respondent, as alderman and without disclosing his attorney-client relationship with Christian, participated in Springfield City Council sessions, closed to the public, at which attorneys for the City discussed legal strategies, settlement prospects and other issues related to Christian's FOIA lawsuit against the City. The Hearing Board found that Respondent engaged in dishonesty by participating in the foregoing confidential discussions without disclosing his attorney-client relationship with Christian.

The Hearing Board recommended that Respondent be suspended for a period of 90 days.

The hearing board noted that he had previous discipline for dishonesty and

 After considering the nature and seriousness of the Respondent's misconduct, the aggravation and mitigation shown by the evidence, the cases discussed above, and the purpose of the attorney disciplinary system, we conclude that a suspension is appropriate in this matter. We believe a suspension of ninety days is sufficient to preserve public confidence in the courts and the legal profession, impress upon Respondent the need for him to comply with ethical requirements, and sufficiently impress upon others the seriousness of the misconduct in this case.

(Mike Frisch)

August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)