Saturday, January 24, 2015

Unjust To Disbar?

Reciprocal (but not identical) discipline was imposed by the New York Appellate Division for the Second Judicial Department based on an attorney's 2012 disbarment in New Jersey.

The court ordered a two-year suspension

 the Special Referee submitted a report in which he found that the respondent had sustained his burden of proving that the imposition of reciprocal disbarment by this Court would be unjust. The Grievance Committee now moves to disaffirm the report of the Special Referee. The respondent cross-moves to confirm the Special Referee's report. In his report, the Special Referee concluded that the respondent understood the basis for his disbarment in New Jersey to be the misappropriation of funds in connection with a single real estate transaction, which occurred in or about 2007. The Special Referee recited the positive testimony about, and characterizations of, the respondent's reputation for honesty and integrity from his witnesses and character references, many of whom were members of the judiciary. Moreover, he credited the respondent with "profound remorse" and "full acceptance of responsibility" for his misconduct. Under the extraordinary circumstances of this case, including, but not limited to, the single complaint of misappropriation in New Jersey; the absence of formal charges against the respondent; the respondent's "profound remorse" and "full acceptance of responsibility" for his misconduct; his impressive character witnesses, including five current members, and one retired member, of the bench, members of the Bar, and a client; his excellent reputation as a member of the criminal law bar; his outstanding service to the community; and his commitment to representing the indigent, we find that the respondent has established by a fair preponderance of the evidence that the imposition of reciprocal disbarment would be unjust. However, we find that the respondent's admitted misappropriation of client funds in the approximate amount of $3,800, for which we find no evidence of restitution, warrants his suspension from the practice of law for a period of two years.

Just one misappropriation.

As to the "absence of formal charges," that was because he consented to disbarment. 

Frankly, it is difficult for me to see an injustice in holding someone who consented to disbarment in one jurisdiction to that concession in another state. (Mike Frisch)

January 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Governor Suspended

From the web page of the Virginia State Bar

Effective January 29, 2015, the Virginia State Bar Disciplinary Board summarily suspended Robert Francis McDonnell’s license to practice law in Virginia based on his conviction for eleven felonies in the United States District Court for the Eastern District of Virginia. Mr. McDonnell was ordered to appear before the board on February 20, 2015, to show cause why his license should not be further suspended or revoked. His license has been administratively suspended for non-payment of Virginia State Bar dues since October 15, 2014.

(Mike Frisch)

January 24, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

No Guilty Knowledge

An interesting decision from a single justice of the Maine Supreme Court dismissed disciplinary charges against an attorney arising from his work as his law firm's senior associate representing GMAC in a large number of foreclosure actions.

The attorney was the "nominal head" of the firm's foreclosure practice group.

It was reported to the attorney by a junior associate that a GMAC employee testified in a deposition that affidavits signed and filed by the witness in a number of matters were false.

A grievance panel  found that the accused attorney's failure to promptly respond to and rectify the situation violated Rules 3.3 and 8.4(a).

The panel imposed a public reprimand.

Associate Justice Andrew Mead found that the panel's "should have known" standard did not correctly interpret the charged rule violations

The Panel stopped short of concluding that Peck had actual knowledge (1) that the problems
would not be fixed with an errata sheet and (2) of the thirteen cases noted above. Thus, the Panel’s Decision is founded upon a “should have known” standard rather than actual knowledge.

The distinction is critical. Sections 3.3(a)(1) and (3) and 8.4 are clearly predicated upon conscious malfeasance, not negligence or recklessness. The Panel does not conclude, nor does the record support the notion, that Peck knowingly undertook any course of conduct intended to foist false statements of fact upon the court in the form of the Stephan affidavits.

On the contrary, the record supports, and the Panel acknowledges, that Peck originally believed that Stephan’s deposition testimony, which he found astounding, would be resolved by an errata sheet He directed members of his firm to place the affected cases on hold until the matter resolved. When the errata sheet solution was not forthcoming, Drummond & Drummond earnestly undertook to notify every court (in which the affected cases were pending) of the flaws in the affidavits and either withdrew pending motions or supplemented them with appropriate affidavits.

The court held that the failure to sustain the Rule 3.3 violations doomed the 8.4(a) charge.  (Mike Frisch)

January 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

SLAPPed Down

The Washington State Supreme Court has held 

The city of Yakima claims the protection of statutes that were designed to protect the rights of those who engage in First Amendment protected communicative activity. U.S. CONST. amend. I. Those statutes-Washington's "anti -SLAPP" laws-protect speakers against frivolous,  speech-chilling lawsuits. We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government's own communicative activity. We reverse the Court of Appeals' decision to dismiss as moot Yakima's appeal of the trial court's decision to deny Yakima's anti-SLAPP motion. Instead, we hold that the case is ripe for review and reinstate the trial court's decision to deny Yakima's antiSLAP motion.

The case involves an employment claim by the police officer contending that he had been  subjected to a hostile workplace as a result of internal investigations into complaints filed by fellow officers. (Mike Frisch)

January 23, 2015 in Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Stealing From Disabled Vet Leads To Prison And Loss Of License

The Ohio Supreme has ordered the interim suspension of an attorney as a result of a felony conviction.

Cleveland.com reported on the charges

A local attorney today was indicted on charges he stole more than $250,000 from the estate of a disabled Army veteran.

Kevin Purcell, 61, served as a guardian for John A. Kane since 1993 and administrator of his estate after he died in 2012.

Cuyahoga County Probate staff referred the case to prosecutors after Kane's sister sued Purcell because her brother's funeral bills had not been paid.

Purcell could not be reached and did not respond to a message left at his Rocky River law office.

Earlier this year, Purcell was found guilty by a probate court judge of concealing assets that belonged to the veteran.

A grand jury indicted Purcell, of Cleveland, on charges of aggravated theft and tampering with records.

Also from Cleveland.com on the conviction and sentence

An attorney was sentenced to 16 months in prison Tuesday for siphoning $262,000 from the estate of a disabled Army veteran...

"There is a special place in hell waiting for attorneys who steal from the defenseless,'' said Matthew Meyer, an assistant Cuyahoga County prosecutor who handled the case.

(Mike Frisch)

January 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Client + $50 = 120 Days

A 120-day suspension was imposed by the Indiana Supreme Court for an attorney's involvement in a loan modification matter

Respondent signed an agreement with Consumer Attorney Services
(“CAS”), a Florida firm, to be “of counsel” and to provide services to CAS’s Indiana loan
modification and foreclosure defense clients. CAS paid Respondent $50 (later raised to $75) for every Indiana loan modification client and $200 for each foreclosure client assigned to him. Non-lawyer employees of CAS performed all intake work for clients assigned to Respondent and drafted pleadings for Respondent to review and file.

 J.D. was one Indiana resident who hired CAS and was assigned to Respondent. J.D. was not informed that Respondent’s role in the representation would be limited, nor was he informed about how fees would be shared between CAS and Respondent. The fee agreement called for an initial nonrefundable retainer followed by monthly payments for the duration of the representation. Other than making an initial brief phone call to J.D. and signing the fee agreement on behalf of CAS, Respondent had no involvement in attempting to obtain loan modification from J.D.’s lender.

After J.D. was served with a complaint for foreclosure, a non-lawyer at CAS sent J.D. a
“retainer modification agreement” increasing J.D.’s monthly payment amount. The lender later
sought summary judgment, and Respondent filed on J.D.’s behalf a response drafted initially by a non-lawyer at CAS. Respondent did not keep J.D. informed about the status of the litigation, did not consult with J.D. about the availability of a court-ordered settlement conference, and did not raise any substantive defenses.

J.D. eventually terminated his relationship with CAS. CAS did not notify Respondent of
the termination, and Respondent did not withdraw his appearance in the foreclosure action. J.D. eventually obtained a loan modification through direct negotiation with his lender. J.D. also unsuccessfully sought a refund of unearned fees being held by CAS.

Reinstatement is automatic  at the end of the 120 days. (Mike Frisch)

January 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

Inside And Out

An attorney who was the subject of an SEC insider trading investigation has filed a consent to disbarment in the District of Columbia.

Law 360 had this January 2012 report

The U.S. Securities and Exchange Commission on Monday resolved its case against former Dewey & LeBoeuf LLP employment attorney Todd L. Treadway, who was accused in New York federal court of trading in the stock of companies whose acquisitions he had helped advise. 

Treadway was fined slightly more than $40,000 for his conduct, which covers the $27,000 he made in illicit profits, plus $3,000 in prejudgment interest and a $10,000 civil penalty.

U.S. District Judge Richard J. Holwell said in his judgment Monday that because of Treadway's statement of financial condition, which was not available, and other unspecified documents, he would not impose a greater penalty.

Treadway was also banned from further securities law violations. He lost his job with Dewey in November 2008.

The former associate in Dewey's employee benefits and employment practice group made $27,000 on two trades based on inside information about buyers and sellers in major deals, the SEC alleged in its suit, which was filed in March.

In July, he lost his bid to strike 12 paragraphs from the SEC's complaint concerning his employment status at the firm and his access to inside information, arguing the claims at issue were immaterial and derogatory.

Judge Holwell also rejected Treadway's attempt to nix in its entirety a paragraph describing his familiarity with the firm's confidentiality policy, saying he did not give any reason for striking it and that the court could see none.

According to the SEC, in June 2007, Treadway bought stock in Accredited Home Lenders Holding Co., prior to the company’s announcement that it would be acquired by Lone Star US Acquisitions LLC in a $400 million deal.

And in May 2008, he purchased securities in CNET Networks Inc. ahead of that company’s $1.8 billion acquisition by CBS Corp., the regulator alleged.

In addition to the alleged insider trading, Treadway also attempted to hide his activity from the Financial Industry Regulatory Authority Inc., the complaint said. When the agency began investigating certain trading activity related to the CNET acquisition, it said, it sent a list of names to Dewey employees that were involved in the transaction, asking them to identify anyone on the list that they knew and their relationship with that person.

According to the complaint, Treadway's fiancee was on the list, having been involved in his CNET trading, but he responded to FINRA's inquiry by claiming he did not know anyone on the list.

Treadway, who represented himself in the case, could not immediately be reached for comment Monday.

The case is U.S. Securities and Exchange Commission v. Todd Leslie Treadway, case number 1:11-cv-01534, in the U.S. District Court for the Southern District of New York.

The fact of the consent is a matter of piublic record. The affidavit that admits the misconduct is not.

He was publicly reprimanded by consent in Virginia for failing to respond to the bar's initial inquiry into the SEC matter. (Mike Frisch)

January 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mainero on Law Schools, "Academic Support," and Bar Exam Prep Programs

Mario Mainero (Chapman, Law) has posted to SSRN his paper, "We Should Not Rely on Commercial Bar Reviews to Do Our Job: Why Labor-Intensive Comprehensive Bar Examination Preparation Can and Should Be a Part of the Law School Mission." It's a draft at this point and he welcomes comments (here's his email: mmainero@chapman.edu). And here's his abstract:

Increasingly, law school bar passage rates are an important concern for faculty and administration, as well as students. The July 2014 bar exam saw a precipitous drop nationally in bar passage rates, including declines ranging from four to over twenty percentage points. At the same time, there have been declines in applications to law schools, declines in admissions statistics (LSAT and undergraduate GPA), and an empirically demonstrable decline in student preparedness for law school. The confluence of these events portends even greater declines in bar passage if law schools do not rethink how they prepare students for the bar exam. This Article examines developments in academic support and bar preparation programs with an eye toward suggesting models for effective in-house bar preparation programs. Specifically, this Article examines: (1) the evolution of academic support programs in law schools to include bar passage programs, with a brief description of the types of programs that traditionally have been available; (2) the particular difficulty posed by the California Bar Exam; (3) the existing types of supplemental programs, and concerns posed by programs that are limited to “bar tips” or even limited practice exams or substantive lectures, given the increased numbers of “at risk” students due to the increase in underpreparedness; (4) the supplemental program at Chapman University’s Fowler School of Law, including the intensity of effort required of both faculty and students in a comprehensive program applicable to all students; and finally, (5) the bar passage results at Chapman University’s Fowler School of Law since adoption of a comprehensive supplemental bar passage program, that have been significantly better than would be expected by some commentators, given its ranking and relative youth as a law school. This Article suggests that the traditional focus of academic support programs, including bar preparation programs, that focus largely on perceived “at risk” students, is insufficient in light of the increased numbers of underprepared students. In order to avoid further calamitous declines in bar passage rates, law schools will have to move from traditional academic support models to models that encourage the entire cohort of students to work together, cooperatively, and that apply extensive time and effort to ensure that all students receive the benefit of these programs.

Thanks, Mario. [Alan Childress]

January 22, 2015 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)

Frivolous Tax Arguments Draw Proposed Suspension, Probation

The Illinois Review Board has recommended a two-year suspension stayed after six months and probation for eighteen months as a result of an attorney's frivolous arguments in three tax matters.

In one matter

 Respondent represented Denny Patridge in an appeal before the United States  Court of Appeals for the Seventh Circuit from Partridge's criminal conviction  for tax evasion, money laundering and wire fraud. In his opening brief,  Respondent based his arguments on two primary premises 1) that the federal  government was required to prove at trial that Patridge was aware of the  specific provisions of the tax code that he was accused of violating and 2) that  the federal government was prohibited from subjecting Patridge to penalties  because the tax forms in question failed to display a valid control number from  the Office of Budget and Management as allegedly required by the Paperwork  Reduction Act of 1995.

The Court of Appeals issued an opinion finding that  the nineteen issues raised by Respondent in his brief, including the above  issues, were "all frivolous." The court also stated that Respondent "performed  below the standard of a pro se litigant; we have serious doubt about his  fitness to practice law." United States v. Patridge, 507 F.3d 1092,  1093-1095 (7th Cir. 2007). The court noted that Respondent failed to  follow court rules regarding requirements for the appendix to his brief. The  court issued an order for Respondent to "show cause why he should not be fined  $10,000 for his frivolous arguments and noncompliance with the Rules, and why he should not be suspended from practice until he  demonstrates an ability to litigate an appeal competently and responsibly."  Respondent paid the fine and the court declined to suspend him.

In another

Respondent represented Lindsey Springer in an  appeal before the United States Court of Appeals for the Tenth Circuit. The  United States had filed a civil action against Springer seeking to reduce tax  assessments to judgment and to foreclose on IRS liens. A judgment was entered  against Springer and Springer appealed. Respondent filed a brief devoting a  considerable portion of his brief arguing that the IRS has no authority to  collect taxes outside of Washington, D.C. In addition, after a criminal  indictment was returned against Springer, Respondent filed a motion to stay in  the civil appeal, arguing that the IRS no longer legally existed. The Tenth  Circuit Court of Appeals found that Respondent's made "blatantly frivolous  statements" in the motion to stay and the court entered an Order and Judgment in  the case finding that Respondent's arguments in his brief were "patently  frivolous."

Springer was convicted of tax evasion and failure  to file a tax return. In his appeal from his criminal conviction, Respondent  filed a brief again offering the same arguments and contending that the Treasury  Secretary lacked the "jurisdiction and authority to enforce offenses concerning  the Internal Revenue Laws" outside of the District of Columbia. The Tenth  Circuit Court of Appeals found that Respondent's arguments had previously been  rejected as frivolous.

The Tenth Circuit Court of Appeals initiated  disciplinary proceedings against Respondent based upon the frivolous arguments  Respondent made in the Springer brief. In September 2011, the court suspended  Respondent from practicing before it.

And

Frankie Sanders had not paid income taxes or filed  returns between 1998 and 2010. In February 2012, the United States filed a  petition to enforce an IRS summons against Sanders in the United States District  Court for the Southern District of Illinois. In March 2012, Respondent filed a  motion to dismiss arguing, as in the Springer case, that the United States could  not proceed against Sanders because IRS district directors could only undertake  collection functions within their geographic internal revenue districts and the  Secretary of the Treasury had no authority to enforce tax laws outside the  District of Columbia. The court denied the motion stating that Respondent had  previously made the same arguments in prior cases before the court and the court  had found them meritless. The court stated that it "refuses to expend further  resources to repeat the same findings and conclusions here."

On December 10, 2012, the United States District  Court for the Southern District of Illinois suspended Respondent from the  practice of law in that court and terminated Respondent's representation of  Sanders, stating that the court "need not allow [Respondent] to waste the  valuable time of the Court nor subject additional clients to such worthless  advocacy."

The Administrator had sought a suspension of six months and until further court order. (Mike Frisch)

January 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Public Discipline Imposed

The Wisconsin Supreme Court rejected the plea of an immigration attorney for non-public discipline for misconduct involving four clients.

The court imposed a public reprimand

With respect to the appropriate level of discipline, upon careful review of the matter, we agree with the referee that Attorney Din's misconduct warrants a public reprimand.  Even though Attorney Din had been practicing law for only a few years at the time he undertook the representations that gave rise to this case, and even though he has no prior disciplinary history, he pled no contest to eight counts of misconduct involving four clients, and he does not dispute the fact that he owes restitution of $14,250.  The misconduct allegations at issue here are not insignificant, nor are the violations technical in nature.  Attorney Din took fees from clients and failed to complete the agreed upon services.  When the clients asked for refunds, he refused to provide them.

(Mike Frisch)

January 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Partner Of Former Spouse Not A Problem

From the Florida Judicial Ethics Advisory Committee comes this recent opinion

ISSUES

Must a judge, who receives no  alimony or support from the judge’s former spouse, disclose or enter a  disqualification order when a former law partner of the judge’s former spouse  appears before the judge and rents space from and shares a receptionist with the  judge’s former spouse?

ANSWER: No.

Reasoning

Although one member of the Committee would require  additional facts that might be relevant to this opinion, based on the  underlying facts provided by the inquiring judge, the Committee believes that  because the inquiring judge receives no alimony or support from the judge’s  former spouse, no reasonable person would question the judge’s impartiality if  an attorney appears before the judge who maintains a business relationship with  the judge’s former spouse. Furthermore, disclosure of the attorney’s  relationship with the judge’s former spouse is not required because the  relationship is not relevant to the question of disqualification. See, e.g., Fla. JEAC Op. 02-05 where  this Committee advised that a judge is not required to “per se disclose personal  family matters” and that a judge in the family law division need not disclose  that the judge is divorced and may potentially be involved in litigation  concerning the judge’s children.

(Mike Frisch)

January 22, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

My Dinner With Ardis

The New Jersey Supreme Court has issued an opinion on the following

 In this judicial disciplinary matter, the Court considers two questions: (1) what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety; and (2) whether respondents – two sitting judges – violated that standard by regularly dining in public with a longstanding friend who was under indictment for official misconduct.

The facts

 In 2000, a group of friends began gathering weekly on Thursday evenings for dinner at a local restaurant followed by Mass at a nearby church. The group included Respondent Raymond Reddin, a Judge of the Superior Court in the Passaic vicinage since 2003, who was assigned to the Criminal Division; Respondent Gerald Keegan, a part-time Municipal Court Judge for the City of Paterson since 2004; Anthony Ardis, now the former Director of Management Services and Clerk to the Board of the Passaic Valley Sewerage Commission (PVSC); and others. Judge Reddin has been close friends with Ardis for fifty years; Judge Keegan and Ardis have been friends since about 1985. In February 2011, Ardis was arrested and charged with official misconduct, based on allegations that he used his public position to have subordinates perform home improvement projects for his friends and family using public resources. In June 2011, a State Grand Jury indicted Ardis, charging him with official misconduct, conspiracy, and theft by unlawful taking. Respondents knew that Ardis was under indictment for criminal offenses pending in Passaic County, and, at the same time, their group continued to meet weekly for dinner and Mass. Neither Judge considered whether their attendance raised any ethical concerns.

 On Thursday, September 13, 2012, Judge Reddin, Judge Keegan, Ardis, and several others met for their weekly dinner at a restaurant in Passaic County. They dined outside on the patio in front of the restaurant. The same evening, a local Republican organization hosted a dinner at the restaurant and one of the guests (the grievant) recognized Judge Reddin and Ardis. The grievant later learned that Respondent Keegan, also seen dining with Ardis, was a Municipal Court Judge. The grievant knew that Ardis was under indictment and, days later, relayed his concerns via email to the Lieutenant Governor. The matter was referred to the Division of Criminal Justice, which, after interviewing the grievant, referred the matter to the ACJC for investigation. Although Respondents continued to dine with Ardis until the spring of 2013, they voluntarily stopped doing so as soon as they learned about the grievance from the ACJC. Both Respondents fully cooperated with the Committee’s investigation.

The court announced a new standard 

"Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?"

Here

 By socializing in public with a defendant who awaited trial on criminal charges, in the very courthouse in which one of the Respondents served as a criminal judge, both Judges in this matter reasonably called into question their impartiality and weakened the public’s confidence in the judicial system. That said, each Judge has an unblemished record and neither engaged in actual impropriety. Because the Court now revises the standard to assess a judge’s personal behavior, the Court declines to impose sanctions in this case. In an effort to offer guidance for the future, the Court emphasizes that going forward, the circumstances presented would result in the imposition of discipline under the new standard.

(Mike Frisch)

January 21, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Kids First, Lawyer After

The California State Bar Court Review Department has recommended a two-year suspension with a minimum of nine months actual suspension and the balance stayed on probation conditions.

The attorney also must make restitution to his former domestic relations client.

The misconduct involved the handling of a series of 18 child support checks totalling over $17,000 that were paid to him in trust for the client.

Rather than forward the checks, the attorney deposited them in a non-escrow account and credited the funds to his fees.

He claimed that he had client consent

[Client] Monica denies ever giving permission to [junior attorney] Moon, stating she was "surprised that [Cayce] applied it to my bill and I was just kind of in shock." She testified that she was in dire financial need because she left an abusive husband, was trying to support five children without a job, and was forced to apply for welfare to provide food and other essentials for her children. After she applied for welfare, she specifically asked Cayce and Moon about garnishing Darwin’s wages. "I told [Cayce] that I had applied for welfare and that I was living on welfare, and I wanted them to collect my child support . . . ." She was adamant that she did not make any assignments, stating, "I wasn’t thinking, oh my children should suffer and be on welfare so I can pay my legal fees. No. My kids come before [Cayce], sorry, they come before [Cayce]."

The review department

Cayce’s contention that Monica gave him an assignment of the funds is unpersuasive. He offered no supporting documentation for this assertion. In fact, we find clear and convincing evidence that Monica never gave Cayce her permission to use the child support money as payment for her legal bills. Cayce did not inform Monica in writing about the wage garnishment order until August 13, 2007, after his office had already received five child support checks. Monica credibly testified that she first discovered the wage garnishment order in July 2007 and that she did not authorize Cayce or Moon to apply the funds to her legal bills.

The attorney had been  previously disciplined. (Mike Frisch)

January 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Difficult Client

The representation of difficult clients in civil litigation resulted in the reprimand of an attorney who had 30 years experience with no prior discipline.

The New Jersey Supreme Court imposed the sanction based on the recommendation of its Disciplinary Review Board.

The DRB found that the attorney had divulged confidential information, engaged in a conflict of interest and improperly withdrawn from the representation.

The attorney was retained to pursue a pro se complaint for payment to an extermination company. The defendant countersued, brought in a third party and sought damages in excess of a small claims amount.

The clients indicated they would not appear for trial and were generally uncooperative to an extreme degree.

The fault was in the attorney's reaction

Respondent stipulated that she sent an April 25, 2012 letter to her client, in which she took them to task for various perceived shortcomings. She then forwarded that letter to her adversary. In doing so, respondent revealed confidential attorney-client information to her adversary, contrary to RPC 1.6(a). Her counsel’s arguments to the contrary are without merit. Not only was there no "implied consent" on the part of the Balbuenas, but none of the rule exceptions apply. We cannot agree with counsel’s argument that the letter advanced the client’s interests. To the contrary, it was damaging to the Balbuenas, for it cast them in a poor light.

In addition, respondent engaged in a conflict of interest, under RPC 1.7(a)(2), by sending the April 16, 2012 pre-action letter to the Balbuenas. AS the DEC correctly found, the Balbuenas were current clients, when respondent sent the letter. Respondent still had legal tasks to perform for her clients, including the preparation and distribution of the final draft of the stipulation of settlement and the monitoring of the installment payments for the year to follow. Notwithstanding counsel’s arguments to the contrary, the record clearly and convincingly establishes that respondent actively represented the Balbuenas when, on April 16, 2012, she "invited them to an adversarial proceeding."

Improper withdrawal was also found because the attorney had "summarily ended the representation, without prior notice to the Balbuenas, at a time when her legal work on their behalf was incomplete." (Mike Frisch)

January 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Try Again

The Florida Supreme Court disagreed with a referee's conclusion that an attorney's conduct did not run afoul of ethics rules.

First, based upon these facts, the Court finds that Respondent violated rule 4-8.4(c) by drafting, executing, and witnessing a mortgage loan document containing the misrepresentation that the borrowers had the legal authority to encumber the property...

Second, the Court finds Respondent guilty of another violation of rule 4-8.4(c) due to his deliberate omissions and knowing failures to report important information to lender Gonzalez. An attorney serving as an escrow agent has a fiduciary duty to exercise reasonable skill and ordinary diligence in holding and delivering possession of the escrowed property...

Third, pursuant to those same fiduciary responsibilities, Respondent violated rule 4-8.4(c) with regard to Countrywide Bank. Respondent knew of the Gonzalez loan prior to the Countrywide Bank closing because he personally drafted the documents for the Gonzalez loan. Despite this knowledge, he did not disclose the $200,000 loan on the list of encumbrances in the title insurance policy that he issued to lender Countrywide Bank. Further, he did not inform Countrywide Bank that the down payment on the property was the money that the borrowers received from Gonzalez. His failures to be truthful created the appearance that the borrowers had invested their own funds into the property...

Fourth, the Court finds that the evidence demonstrates Respondent violated rule 5-1.1(b). The rule plainly states that "[m]oney or other property entrusted to an attorney for a specific purpose . . . is held in trust and must be applied only to that purpose."

The matter was sent back to the referree for a sanction recommendation. (Mike Frisch)

January 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Follow-Up On Transparency

Last Monday I posted a comment about the lack of transparency in the District of Columbia attorney disciplinary system.

Among other things, I noted that the link to information on upcoming hearings was woefully out of date.

The page noted no scheduled hearings notwithstanding the fact that hearings had been conducted that were never listed.

Well, I did not expect a thank-you note for bringing this sad fact to the attention of the powers that be.

I did, however, expect it to be fixed.

Now, a week later, the only listed case still is the one that took place last summer.

When the Court of Appeals issued a disciplinary order last Thursday in the Baber case, it was linked to the Bar's decisions web page by the next day.

Why are there still no listed scheduled hearings?

Update: Sometime this afternoon, the page was updated and now lists seven secheduled hearings. (Mike Frisch)

January 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, January 17, 2015

A Not-So-Golden Oldie

The most overdue District of Columbia hearing committee report (perhaps ever) has finally been filed.

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court's usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday - seven years and a day after.

And it stinks.

According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an "alcoholic blackout."

Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.

Nor were his four prior alcohol-related traffic accidents an issue.

The committee recommends a fully stayed suspension of two years and a day and probation.

Not one minute of suspension for severely injuring someone while driving drunk and fleeing the scene.

Hardly worth waiting for.

And, a decade after that near-fatal night, this matter is nowhere near resolution.

The Board on Professional Responsibility must review the report and make its own recommendation for final court action.

Note that the Court of Appeals disbarred an attorney convicted of a similar offense (albeit one that caused a death) in this 2003 opinion.

Good luck with that "alcoholic blackout" story as mitigation in a criminal case. In D.C. bar discipline, all is forgiven.

And perhaps this forgiving report is the hearing committee's way of excusing its own gross neglect of its responsibilities.

After all, it's not a suspension case, in their view.

Update: The report is now available on line at this link. (Mike Frisch)

In re Hoare involved the suspension of an attorney for two years after he was convicted of aggravated reckless homicide in Illinois.   In that case an intoxicated attorney drove in the wrong direction on an interstate highway and collided with another car, killing the driver.   But Hoare's conduct, while egregious, was found not to involve moral turpitude because he, unlike Mr. Tidwell, never left the scene of the accident.   Additionally, a court-ordered evaluation found that Hoare did not have any alcohol problems, nor was he likely to commit a similar act in the future.   The same cannot be said with respect to Mr. Tidwell. - See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1128446.html#sthash.WxWBrx4h.dpuf
In re Hoare involved the suspension of an attorney for two years after he was convicted of aggravated reckless homicide in Illinois.   In that case an intoxicated attorney drove in the wrong direction on an interstate highway and collided with another car, killing the driver.   But Hoare's conduct, while egregious, was found not to involve moral turpitude because he, unlike Mr. Tidwell, never left the scene of the accident.   Additionally, a court-ordered evaluation found that Hoare did not have any alcohol problems, nor was he likely to commit a similar act in the future.   The same cannot be said with respect to Mr. Tidwell. - See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1128446.html#sthash.WxWBrx4h.dpuf
In re Hoare involved the suspension of an attorney for two years after he was convicted of aggravated reckless homicide in Illinois.   In that case an intoxicated attorney drove in the wrong direction on an interstate highway and collided with another car, killing the driver.   But Hoare's conduct, while egregious, was found not to involve moral turpitude because he, unlike Mr. Tidwell, never left the scene of the accident.   Additionally, a court-ordered evaluation found that Hoare did not have any alcohol problems, nor was he likely to commit a similar act in the future.   The same cannot be said with respect to Mr. Tidwell. - See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1128446.html#sthash.WxWBrx4h.dpuf
In re Hoare involved the suspension of an attorney for two years after he was convicted of aggravated reckless homicide in Illinois.   In that case an intoxicated attorney drove in the wrong direction on an interstate highway and collided with another car, killing the driver.   But Hoare's conduct, while egregious, was found not to involve moral turpitude because he, unlike Mr. Tidwell, never left the scene of the accident.   Additionally, a court-ordered evaluation found that Hoare did not have any alcohol problems, nor was he likely to commit a similar act in the future.   The same cannot be said with respect to Mr. Tidwell. - See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1128446.html#sthash.WxWBrx4h.dpuf
In re Hoare involved the suspension of an attorney for two years after he was convicted of aggravated reckless homicide in Illinois.   In that case an intoxicated attorney drove in the wrong direction on an interstate highway and collided with another car, killing the driver.   But Hoare's conduct, while egregious, was found not to involve moral turpitude because he, unlike Mr. Tidwell, never left the scene of the accident.   Additionally, a court-ordered evaluation found that Hoare did not have any alcohol problems, nor was he likely to commit a similar act in the future.   The same cannot be said with respect to Mr. Tidwell. - See more at: http://caselaw.findlaw.com/dc-court-of-appeals/1128446.html#sthash.WxWBrx4h.dpuf(Mike Frisch)

January 17, 2015 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, January 16, 2015

Former Justice Consents To Disbarment

The Pennsylvania Supreme Court has accepted the consent to disbarment of their former colleague Joan Orie Melvin.

The consent was a result of the criminal conviction of the former jurist.

As part of the sentence, Respondent was removed from the Supreme Court of Pennsylvania, and was to write apology letters to her staff and to every Common Pleas Court and intermediate appellate court judge in Pennsylvania, as well as to the Justices of the Supreme Court of Pennsylvania

(Mike Frisch)

January 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lights Out For "Light Hero"

The Wisconsin Supreme Court has revoked the license of an attorney as a result of 47 counts of ethics violations.

The court noted that the attorney had no prior disciplinary record but had "considerable practice problems"  in federal bankruptcy matters

The undisputed facts show a clear pattern of neglect by Attorney Booker of his clients' needs and objectives, which is especially troubling given that most of Attorney Booker's clients were in serious financial distress and thus were in a particularly vulnerable position.  Attorney Booker also showed a patent disregard for his obligations as an attorney.  He made a habit of providing inaccurate or misleading information to his clients and to the courts.  He ignored court orders and requirements.  He repeated his misconduct again and again, in scores of cases in federal and state courts over a lengthy period.  He has never acknowledged his wrongdoing.  He has failed to fully cooperate with the disciplinary process.  License revocation is necessary in this case to impress upon Attorney Booker the seriousness of his professional misconduct, to protect the public from similar misconduct in the future, and to deter other attorneys from engaging in similar misconduct.

The court ordered full costs but not restitution

Given the imprecise state of the record as it relates to restitution, the court declines to make a specific award of restitution.  Instead, we deem it appropriate to require, as a condition of the reinstatement of his Wisconsin law license, that Attorney Booker demonstrate to the court that he has reimbursed any unearned fees to each client mentioned in the OLR's amended complaint.

Some background

Attorney Booker promoted his law practice by labeling himself in advertisements as the "Light Hero"——a reference to his ability to keep electricity connected to the homes of financially troubled residents.  For a time, Attorney Booker concentrated much of his practice on filing what are known as "Chapter 128 petitions" on behalf of homeowners facing the possible disconnection of utility services.  A Chapter 128 petition is a state-court proceeding in which wage earners who are unable to pay a debt in full can make regular debt amortization payments over time.  See Wis. Stat. § 128.21.  Before August 2011, the utility company which provides electrical service to Milwaukee residents treated the filing of a Chapter 128 petition as an injunction preventing it from terminating a customer's service during the pendency of the case.  Attorney Booker therefore filed Chapter 128 petitions on behalf of his clients in order to stay the utility from disconnecting his clients' service for non-payment.

(Mike Frisch)

January 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Consent Discipline In Klayman Bar Prosecution

A District of Columbia Hearing Committee has rejected as "unduly lenient" a proposed consent disposition of the bar disciplinary charges against Larry Klayman.

The Office of Bar Counsel and Klayman acting pro se had proposed a public censure for three counts of ethical misconduct involving serial conflicts of interest.

The hearing committee viewed the misconduct as warranting a suspension "of 30 to 60 days, if not longer."

According to the January 13 order, such a sanction would be "substantially different" from a public censure, which is not "license-impairing."

Thus, the hearing committee concludes that a negotiated public censure is unjustified under the circumstances.

The order is not available on line. (Mike Frisch)

January 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)